Information Fiduciaries and the First Amendment

Privacy and Security

Article Snapshot


Jack M. Balkin


UC Davis Law Review, Vol. 49, No. 4, pp. 1183-1234, 2016


Some are concerned that privacy regulation will conflict with free speech rights. But when online service providers (OSPs) make assurances to gain our trust, they assume a duty to ensure that their users’ information is not used against the user.

Policy Relevance

Like lawyers, OSPs have a duty to keep information safe. Reasonable rules intended to protect privacy do not violate rights of free speech.

Main Points

  • Firms like Uber and Facebook are in a position to use information about users in a way that might manipulate or embarrass them.
  • Privacy regulation might conflict with free speech rights, because privacy stops people from revealing truthful information; in a 2011 case, the Supreme Court ruled that a law forbidding pharmacies from selling information for marketing purposes violated free speech rights.
  • Some argue that privacy laws are acceptable as limits on commercial speech, but the fact that information is bought and sold does not make it commercial speech.
  • If a firm agrees to protect privacy in a contract, the contract can be enforced without encroaching on free speech rights.
    • This does not help protect privacy if the contract is inadequate.
    • Privacy rules that conflict with the terms of the contract would still conflict with free speech, making it impossible to regulate privacy.
  • The information we reveal to doctors and lawyers is private because of the nature of the professional relationship; a doctor could not argue that the first amendment protects his right to use patients’ medical reports in a work of art.
  • In the digital age, users trust firms like Facebook with sensitive information; by accepting this data and making assurances that they are worthy of trust, these firms become “information fiduciaries,” similar to doctors and lawyers.
  • Imposing reasonable rules on information fiduciaries would not violate the First Amendment, even if these rules limited the firms’ ability to collect, use, or disclose some kinds of information.


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