A Grand Bargain to Make Tech Companies Trustworthy

[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.]