Jonathan Zittrain

The internet's absence of central control, or even easy central monitoring created gaps of responsibility for maintaining valuable content that others rely on. Links work seamlessly until they don’t.

The architecture and offerings of the Internet developed without much steering by governments, much less operations by militaries. That made talk of “cyberwar” exaggerated, except in very limited instances. Today that is no longer true: States and their militaries see the value not only of controlling networks for surveillance or to deny access to adversaries, but also of subtle propaganda campaigns launched through a small number of wildly popular worldwide platforms such as Facebook and Twitter.

[Commentary] There are two big problems with America’s news and information landscape: concentration of media, and new ways for the powerful to game it.

First, we increasingly turn to only a few aggregators like Facebook and Twitter to find out what’s going on the world, which makes their decisions about what to show us impossibly fraught. Those aggregators draw—opaquely while consistently—from largely undifferentiated sources to figure out what to show us. They are, they often remind regulators, only aggregators rather than content originators or editors.

Second, the opacity by which these platforms offer us news and set our information agendas means that we don’t have cues about whether what we see is representative of sentiment at large, or for that matter of anything, including expert consensus. But expert outsiders can still game the system to ensure disproportionate attention to the propaganda they want to inject into public discourse. Those users might employ bots, capable of numbers that swamp actual people, and of persistence that ensures their voices are heard above all others while still appearing to be humbly part of the real crowd. What to do about it? We must realize that the market for vital information is not merely a market.

[Jonathan Zittrain is a professor at Harvard Law School and the Kennedy School of Government.]

[Commentary] Companies share information about us in any number of unexpected and regrettable ways, and the information and advice they provide can be inconspicuously warped by the companies’ own ideologies or by their relationships with those who wish to influence us, whether people with money or governments with agendas. To protect individual privacy rights, we’ve developed the idea of “information fiduciaries.”

In the law, a fiduciary 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. An information fiduciary is 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’t 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—on 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. The information age has created new kinds of entities that have many of the trappings of fiduciaries—huge online businesses, like Facebook, Google, and Uber, that collect, analyze, and use our personal information—sometimes in our interests and sometimes not. Like older fiduciaries, these businesses have become virtually indispensable. Like older fiduciaries, these companies collect a lot of personal information that could be used to our detriment. And like older fiduciaries, these businesses enjoy a much greater ability to monitor our activities than we have to monitor theirs. As a result, many people who need these services often shrug their shoulders and decide to trust them. But the important question is whether these businesses, like older fiduciaries, have legal obligations to be trustworthy. The answer is that they should.

[Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project. Jonathan Zittrain is a professor at Harvard Law School.]