Fixing Social Media's Grand Bargain

Privacy and Security, Competition Policy and Antitrust, Networks, the Internet, and Cloud Computing, Internet and Media and Content

Article Snapshot


Jack M. Balkin


Hoover Working Group on National Security, Technology, and Law, Aegis Series Paper No. 1814 (October 16, 2018)


Social media firms like Facebook offer services for free in exchange for data from end users, using the data to sell advertising. This bargain encourages social media firms and advertisers to manipulate users.

Policy Relevance

Treating social media firms as fiduciaries would better protect users from manipulation.

Main Points

  • Social media has incentives to offer engaging content, but often the most engaging material provokes strong emotional reactions, such as fake news or polarizing messages.
  • Today’s social media bargain requires individuals to surrender privacy in order to speak, heightening the potential for abuse of power.
  • Manipulation of the public by media and advertisers is not a new problem, but its severity is exacerbated by digital technologies; today, manipulation is individually targeted and more addictive, and is delivered faster and on a larger scale.
  • Treating social media firms as public utilities or state actors would be unworkable, because these firms must make editorial decisions that government entities may not make consistent with First Amendment rights of free speech.
  • Social media firms have undertaken to facilitate, organize, and curate public opinion and impose norms against abuse and harassment; consistent with this, these firms can fairly be criticized for three failings, as follows:
    • Lack of transparency.
    • Arbitrary and uneven enforcement of community norms.
    • Failure to ensure levels of fairness and accuracy appropriate to a professional communications service.
  • Stricter antitrust enforcement might help, by breaking large companies like Facebook and Google into many smaller ones; this would prevent a few for-profit firms from dominating the spread of public opinion.
  • Like doctors and lawyers, social media firms should be treated as fiduciaries; that is, digital companies should recognize duties of care, confidentiality, and loyalty toward the people whose data they collect, store and use.
  • Congress should offer digital companies a new grand bargain, giving firms that agree to act as information fiduciaries a safe harbor from certain types of liability, and preempting state regulation of those firms.

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