Balkanization On : A Skeptical Sentiment Of Data Fiduciaries

As readers of this spider web log know, Jack Balkin has been developing a theory of “information fiduciaries” for the past times v years or so. The theory is motivated past times the observation that ordinary people are enormously vulnerable to too dependent on the leading online platforms—Facebook, Google, Twitter, Uber, too the like. To mitigate this vulnerability too ensure these companies practice non betray the trust people house inwards them, Balkin urges that nosotros depict on principles of fiduciary obligation. Just equally the police imposes exceptional duties of care, confidentiality, too loyalty on doctors, lawyers, accountants, too estate managers vis-à-vis their patients too clients, too thence also should it impose such duties on Facebook, Google, Twitter, too Uber vis-à-vis their halt users.

Balkin’s theory has been enormously influential. Scholars, advocates, too journalists convey hailed it equally a solution that tin “make Facebook too Google behave” without crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties convey expressed increasing interest; the Data Care Act would inscribe Balkin’s scholarship inwards the U.S. Code. The conventional wisdom, equally Frank Pasquale expressed it inwards a recent essay, is that the information-fiduciary proposal is non only a much-needed breakthrough but “hard to challenge.”

This contributor dissents. Uneasy close the fiduciary plough that Balkin has inspired, Lina Khan too I convey written an essay argument that the information-fiduciary proposal is flawed—likely beyond repair—on conceptual, legal, too normative grounds. H5N1 outset draft of our essay is available here.* As Khan too I summarize our declaration inwards the abstract:

This Essay seeks to disrupt the emerging consensus past times identifying a publish of lurking tensions too ambiguities inwards the theory of information fiduciaries, equally good equally a publish of reasons to incertitude the theory’s capacity to resolve them satisfactorily. Although nosotros handgrip alongside Balkin that the harms stemming from dominant online platforms telephone recollect for legal intervention, nosotros inquiry whether the concept of information fiduciaries is an adequate or apt answer to the problems of information insecurity that he stresses, much less to to a greater extent than cardinal problems associated alongside outsized marketplace position percentage too occupation organisation models built on pervasive surveillance. We also telephone recollect attending to the potential costs of adopting an information-fiduciary framework—a framework that, nosotros fear, invites an enervating complacency toward online platforms’ structural mightiness too a premature abandonment of to a greater extent than robust visions of world regulation.

Balkin kindly invited me to write on this spider web log a piece back, too he has been cipher but gracious to me equally an editor (of sorts) too colleague. He is also a famously generous mentor to scores of younger scholars. It is a grade of my esteem for Balkin that I experience completely confident he volition non hold upwards upset past times this pushback, too on the reverse volition savor the critical engagement alongside his ideas.

* For readers who would prefer an extremely condensed graphic-novel-style rendering of our newspaper to the densely footnoted version, Cornell Tech’s Strategic Designer inwards Residence Gary Zamchick created this icon next a beak I gave at that spot recently. For the record, I did non apparel a majestic give off chapeau at the beak itself; otherwise, this is pretty much how it went down.

Illustration past times Gary Zamchick