“Information Fiduciaries” and News Media

Background on the concept of “Information Fiduciaries” and How It Might Help Align The Interests of Tech Platforms and News Organizations

As many of you know, I’ve been doing a lot of work around and thinking about the interaction between Facebook and news organizations lately. In fairness, who hasn’t?

But I’ve recently stumbled upon a years-old concept from Jack Balkin and Jonathan Zittrain that seems supremely relevant and under-discussed: information fiduciaries.

The concept, first published on Balkin’s blog, and deeply developed in an article for the UC Davis Law Review, is best explained in an Atlantic piece from 2016. (Read the whole thing. It’s worth it. But I’ll excerpt key pieces here.)

The sub-head of the article asks: “Doctors and lawyers are prohibited from using clients’ information for their own interests, so why aren’t Google and Facebook?”

Some background:

Even if you don’t use the word “fiduciary,” you intuitively understand it’s meaning. We depend on people to act in our best interests all the time — the entire world of “professionals” is based on the concept. We hire them to do something we can’t, and to act in our own interests in an area about which we know very little.

As Balkin and Zittrain explain: “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.”

They go on that an information fiduciary is not a new concept at all. Instead, it:

“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.”

Sound familiar? They want it to.

The pair go further to suggest that the idea could be used to craft regulatory legislation that operates along the lines of the Digital Millennium Copyright Act (DMCA). In short, the DMCA protects companies that host copyrighted content posted by users from liability if the copyright owner notifies said companies of an infringement and they take it down. (Users have recourse, too.)

In the context of our personal information,

“Companies could take on the responsibilities of information fiduciaries: They would agree to a set of fair information practices, including security and privacy guarantees, and disclosure of breaches. They would promise not to leverage personal data to unfairly discriminate against or abuse the trust of end users. And they would not sell or distribute consumer information except to those who agreed to similar rules.”

With all the clamoring for regulation of Internet giants, implementation of an information fiduciary concept seems like an exceptionally good bargain. In a relationship of asymmetric power, consumers (us) get to trust that our data is being used in our best interests, tech platforms (read: Google, Facebook, Amazon… at least for now) get to avoid tough decisions that amount to governance, and the businesses that advertise with said platforms (think more along the lines of the local Thai restaurant than Walmart) can depend on them behaving in a predictable and beneficial manner.

One final note: what’s any of this to do with news? A lot.

First, it could obligate tech platforms to take on some of the editorial control of content they’ve eschewed.

Second, and more importantly, it should change the way the way they interact with news organizations. In essence, it should more closely align the interests of the two, making it easier to work together. Not only are news organizations set up to use information to the benefit of the public, they’re also accountable for bad behavior via libel law, etc. If there was a mechanism to make tech/information sharing platforms similarly aligned/accountable, it might make collaboration all the much easier.

(More on this soon. I’m working on a piece about news organizations buying Facebook ads.)

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