As many of you know, I\u2019ve been doing a lot of work around and thinking about the interaction between Facebook<\/a> and news organizations lately. In fairness, who hasn\u2019t?<\/p>\n But I\u2019ve recently stumbled upon a years-old concept from Jack Balkin<\/a> and Jonathan Zittrain<\/a> that seems supremely relevant and under-discussed: information fiduciaries.<\/p>\n The concept, first published on Balkin\u2019s blog<\/a>, and deeply developed in an article for the UC Davis Law Review<\/a>, is best explained in an Atlantic piece from 2016<\/a>. (Read the whole thing. It\u2019s worth it. But I\u2019ll excerpt key pieces here.)<\/p>\n The sub-head of the article asks: \u201cDoctors and lawyers are prohibited from using clients\u2019 information for their own interests, so why aren\u2019t Google and Facebook?\u201d<\/p>\n Some background:<\/p>\n <\/p>\n Even if you don\u2019t use the word \u201cfiduciary,\u201d you intuitively understand it\u2019s meaning. We depend on people to act in our best interests all the time \u2014 the entire world of \u201cprofessionals\u201d is based on the concept. We hire them to do something we can\u2019t, and to act in our own interests in an area about which we know very little.<\/p>\n As Balkin and Zittrain explain: \u201cIn the law, a fiduciary<\/em> is a person or business with an obligation to act in a trustworthy manner in the interest of another. Examples are professionals and managers who handle our money or our estates.\u201d<\/p>\n They go on that an information fiduciary<\/em> is not a new concept at all. Instead, it:<\/p>\n \u201cis a person or business that deals not in money but in information. Doctors, lawyers, and accountants are examples; they have to keep our secrets and they can\u2019t use the information they collect about us against our interests. Because doctors, lawyers, and accountants know so much about us, and because we have to depend on them, the law requires them to act in good faith\u2014on pain of loss of their license to practice, and a lawsuit by their clients. The law even protects them to various degrees from being compelled to release the private information they have learned.\u201d<\/p>\n<\/blockquote>\n Sound familiar? They want it to.<\/p>\n The pair go further to suggest that the idea could be used to craft regulatory legislation that operates along the lines of the Digital Millennium Copyright Act (DMCA)<\/a>. In short, the DMCA protects companies that host copyrighted content posted by users from liability if the copyright owner notifies said companies of an infringement and they take it down. (Users have recourse, too.)<\/p>\n In the context of our personal information,<\/p>\n \u201cCompanies could take on the responsibilities of information fiduciaries: They would agree to a set of fair information practices, including security and privacy guarantees, and disclosure of breaches. They would promise not to leverage personal data to unfairly discriminate against or abuse the trust of end users. And they would not sell or distribute consumer information except to those who agreed to similar rules.\u201d<\/p>\n<\/blockquote>\n\n
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