How to Exercise the Power You Didn’t Ask For
Yale Law School’s Jack Balkin has invoked these examples and proposed that today’s online platforms become “information fiduciaries.” We are among a number of academics who have been working with policymakers and internet companies to map out what sorts of duties a responsible platform could embrace. We’ve found that our proposal has bipartisan appeal in Congress, because it protects consumers and corrects a clear market failure without the need for heavy-handed government intervention.
“Fiduciary” has a legalese ring to it, but it’s a long-standing, commonsense notion. The key characteristic of fiduciaries is loyalty: They must act in their charges’ best interests, and when conflicts arise, must put their charges’ interests above their own. That makes them trustworthy. Like doctors, lawyers, and financial advisers, social media platforms and their concierges are given sensitive information by their users, and those users expect a fair shake — whether they’re trying to find out what’s going on in the world or how to get somewhere or do something.
A fiduciary duty wouldn’t broadly rule out targeted advertising — dog owners would still get dog food ads — but it would preclude predatory advertising, like promotions for payday loans. It would also prevent data from being used for purposes unrelated to the expectations of the people who shared it, as happened with the “personality quiz” survey results that were later used to psychometrically profile voters and then attempt to sway their political opinions.