As readers of this blog know, Jack Balkin has
been developing a theory of “information fiduciaries” for the past five years
or so. The theory is motivated by the observation that ordinary people are
enormously vulnerable to and dependent on the leading online platforms—Facebook,
Google, Twitter, Uber, and the like. To mitigate this vulnerability and ensure these companies do not betray the trust people place
in them, Balkin urges that we draw on principles of fiduciary obligation. Just
as the law imposes special duties of care, confidentiality, and loyalty on
doctors, lawyers, accountants, and estate managers vis-à-vis their patients and
clients, so too should it impose such duties on Facebook, Google, Twitter, and
Uber vis-à-vis their end users.
Balkin’s theory has been enormously
influential. Scholars, advocates, and journalists have hailed it as a solution
that can “make
Facebook and Google behave” without
crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties have expressed increasing interest;
the Data Care
Act would inscribe Balkin’s scholarship in the
U.S. Code. The conventional wisdom, as Frank Pasquale expressed it in a recent
essay, is that the information-fiduciary proposal is
not just a much-needed breakthrough but “hard to challenge.”
This Balkinization contributor dissents. Uneasy
about the fiduciary turn that Balkin has inspired, Lina Khan and I have written an
essay arguing that the information-fiduciary proposal is flawed—likely beyond
repair—on conceptual, legal, and normative grounds. A first draft of our essay is
available here.*
As Khan and I summarize our argument in the abstract:
This Essay seeks to disrupt the emerging consensus by
identifying a number of lurking tensions and ambiguities in the theory of
information fiduciaries, as well as a number of reasons to doubt the theory’s
capacity to resolve them satisfactorily. Although we agree with Balkin that the
harms stemming from dominant online platforms call for legal intervention, we
question whether the concept of information fiduciaries is an adequate or apt
response to the problems of information insecurity that he stresses, much less
to more fundamental problems associated with outsized market share and business
models built on pervasive surveillance. We also call attention to the potential
costs of adopting an information-fiduciary framework—a framework that, we fear,
invites an enervating complacency toward online platforms’ structural power and
a premature abandonment of more robust visions of public regulation.
Balkin kindly invited me to write on this blog
a while back, and he has been nothing but gracious to me as an editor (of
sorts) and colleague. He is also a famously generous mentor to scores of younger
scholars. It is a mark of my esteem for Balkin that I feel completely confident
he will not be upset by this pushback, and on the contrary will relish the
critical engagement with his ideas.
* For readers who would prefer an
extremely condensed graphic-novel-style rendering of our paper to the densely
footnoted version, Cornell Tech’s Strategic Designer in Residence Gary
Zamchick created this image following a talk I gave there recently. For the
record, I did not wear a purple top hat at the talk itself; otherwise, this is
pretty much how it went down.
Illustration by Gary Zamchick