Whether or not an information fiduciary model would be the best way to regulate data governance, it is not guilty of many of the accusations that Lina Khan and David Pozen lob at it.
The value of Balkin’s fiduciary framework, I argue, resides not in providing an enforceable legal relationship but providing a framework for privacy legislation. The existing frameworks – the Privacy Principles adopted by the Organization for Economic Co-operation and Development (OECD) in 1980 which rely heavily on notice and consent and the property framework introduced by Louis Brandeis in “The Right To Privacy” (both of which I discuss in this privacy white paper) – have significant limitations. Balkin’s proposed fiduciary framework provides a model for legislation that recognizes that the nature of the relationship between information collectors and aggregators requires imposing additional duties and restrictions to adequately protect consumers, while still enabling commerce and facilitating competition.
Khan and Pozen are right to note the fundamental conflict between “information fiduciary” duties and shareholder interests. I only wish to add two further points in service of a radical skepticism towards the information fiduciary concept.
The concept of an “information fiduciary” is a helpful way of describing the privacy interests that users have in data about them held by online platforms. It provides a good starting point for thinking about platforms’ recommendations. And it has nothing useful to say about other urgent problems online platforms pose.
The multiple, capitalist information fiduciaries of the Balkin proposal and the regulatory regime that Khan and Pozen appear to imagine seem to have little in common. But they are responses to the same problem: that of governing data-driven algorithmic processes that operate in real time, immanently, automatically, and at scale.
In recent years, the concept of “information fiduciaries” has surged to the forefront of debates on platform regulation. In a forthcoming essay, we question the wisdom of applying a fiduciary framework to dominant digital platforms.