A Grand Bargain to Make Tech Companies Trustworthy?

Privacy and Security

Article Snapshot


Jack M. Balkin and Jonathan Zittrain


The Atlantic (Oct. 3, 2016)


Doctors and lawyers are barred from using client information for their own interests. This article asks if similar rules should apply to firms like Google and Facebook. Lawmakers could give such firms a safe harbor from regulation if they agree to safeguard consumers.

Policy Relevance

Google and Facebook could agree to become “information fiduciaries” in exchange for immunity from state privacy law.

Main Points

  • A fiduciary is a person or business with an obligation to act in a trustworthy manner in the interest of another; doctors, lawyers, and accountants are considered fiduciaries.
  • Like other fiduciaries, Google and Facebook collect a lot of information about consumers; however, the consumers are not able to monitor how the information is used.
  • Like lawyers and doctors, the law should require Google and Facebook to act in good faith and to be trustworthy.
  • Google Maps should not be permitted to route a driver past the International House of Pancakes (IHOP), just because IHOP paid Google $20.
  • Copyright law shows how such regulations could be structured; the Digital Millennium Copyright Act created a safe harbor for Internet Service Providers (ISPs) in exchange for ISPs’ willingness to take down content posted in violation of copyright law.
  • Firms like Google and Facebook could undertake to promise not to use data unfairly against consumers’ interests; in exchange, federal lawmakers could grant them immunity from state privacy laws.

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