The digital surveillance economy has ballooned in size and sophistication, while keeping most of its day-to-day tracking apparatus out of view. Public reaction has ranged from muted to deeply concerned, with a good portion of those in the concerned camp feeling so overwhelmed by the pervasiveness of their privacy loss that they’re more or less reconciled to it. It’s long past time not only to worry but to act.
- from “How to Exercise the Power You Didn’t Ask For” by Jonathan Zittrain
In a recent Harvard Business Review article, international law and computer science professor Jonathan Zittrain discusses the privacy issues that have developed with digital tracking of individuals by online companies that provide search, social engagement, and shopping services.
Professor Zittrain explains that while identifying dog owners from individuals’ online interactions (e.g., purchases, Facebook groups, online searches about best flea treatments, Instagram ‘likes’) and pushing dog food ads to these individuals is relatively innocuous, “pushing payday loans to people identified as being emotionally and financially vulnerable is not.” Professor Zittrain provides additional concerning examples:
- Targeted advertising that is used to exclude people. “Julia Angwin, Ariana Tobin, and Madeleine Varner found that on Facebook targeting could be used to show housing ads only to white consumers.”
- Sponsored content: “more and more, people get not a range of search results but a single answer from a virtual concierge like Amazon’s Alexa. And it may not be long before such concierges rouse themselves to suggest it’s time to buy a gift for a friend’s birthday (perhaps from a sponsor) or persistently recommend Uber over Lyft when asked to procure a ride (again, thanks to sponsorship).”
- Sending fake information to avoid regulatory oversight: Uber “it used data collected from the Uber app to figure out who the officials were and then sent fake information about cars in service to their phones.”
In “How to Exercise the Power You Didn’t Ask For” (Harvard Business Review, September 19, 2018), Professor Zittrain questions who to hold accountable for the content that is ‘curated’ by online media platforms. This is especially critical when it comes to information “aggressively manipulated by third parties trying to gain exposure for their messages.”
There’s great concern about what happens when those messages are propaganda — that is, false and offered in bad faith, often obscuring their origins. Elections can be swayed, and people physically hurt, by lies. Should the platforms be in the business of deciding what’s true or not, the way that newspapers are? Or does that open the doors to content control by a handful of corporate parties — after all, Facebook has access to far more eyeballs than a single newspaper has ever had — or by the governments that regulate them?
Companies can no longer sit this out, much as they’d like to. As platforms provide highly curated and often single responses to consumers’ queries, they’re likely to face heated questions — and perhaps regulatory scrutiny — about whom they’re favoring or disfavoring. They can’t just shrug and point to a “neutral” algorithm when asked why their results are the way they are. That abdication of responsibility has led to abuse by sophisticated and well-funded propagandists, who often build Astroturf campaigns that are meant to look as if they’re grassroots.
Using the restaurant industry to illustrate how ineffective the current practice of expecting consumers to choose to opt out of data collection in order to protect their privacy, Professor Zittrain explains:
Restaurants must meet minimum standards for cleanliness, or (ideally) they’ll be shut down. We don’t ask the public to research food safety before grabbing a bite and then to “opt out” of the dubious dining establishments. No one would rue being deprived of the choice to eat food contaminated with salmonella. Similar intervention is needed in the digital universe.
(“How to Exercise the Power You Didn’t Ask For”)
In another article, Professor Zittrain and Yale constitutional law professor Jack Balkin point out: “Doctors and lawyers are prohibited from using clients’ information for their own interests, so why aren’t Google and Facebook?” (“A Grand Bargain to Make Tech Companies Trustworthy,” The Atlantic, October 3, 2016)
We tell online services what we like, who we love, what we are doing, and where we live, work, and play. And they in turn provide us with a window to the world, shaping what we see and suggesting what we should do.
As we use these services, they learn more and more about us. They see who we are, but we are unable to see into their operations or understand how they use our data. As a result, we have to trust online services, but we have no real guarantees that they will not abuse our trust. Companies share information about us in any number of unexpected and regrettable ways, and the information and advice they provide can be inconspicuously warped by the companies’ own ideologies or by their relationships with those who wish to influence us, whether people with money or governments with agendas.
Proposed Solution: Information Fiduciaries
In the law, a fiduciary is a person or business with an obligation to act in a trustworthy manner in the interest of another. For example, financial managers and planners are entrusted to handle their clients’ money. Doctors, lawyers, and accountants are examples of information fiduciaries – that is, a person or business that deals not in money, but in information. Doctors and lawyers are obligated to keep our secrets and they cannot use the information they collect about us against our interests.
Professors Balkin and Zittrain propose “information fiduciaries” to protect personal data in “A Grand Bargain to Make Tech Companies Trustworthy:”
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.
The information age has created new kinds of entities that have many of the trappings of fiduciaries—huge online businesses, like Facebook, Google, and Uber, that collect, analyze, and use our personal information—sometimes in our interests and sometimes not. Like older fiduciaries, these businesses have become virtually indispensable. Like older fiduciaries, these companies collect a lot of personal information that could be used to our detriment. And like older fiduciaries, these businesses enjoy a much greater ability to monitor our activities than we have to monitor theirs. As a result, many people who need these services often shrug their shoulders and decide to trust them. But the important question is whether these businesses, like older fiduciaries, have legal obligations to be trustworthy. The answer is that they should.
In “Information Fiduciaries and the First Amendment,” Professor Balkin explores the inherent conflict between advocates for government regulation to protect consumer data and industries who lean on First Amendment defenses to safeguard business practices of collecting and using personal data.
On the one hand, I understand that human freedom in the information age requires regulation of new forms of social and economic power, just as it did in the first Gilded Age. On the other hand, I also believe in the constitutional freedoms of the First Amendment. This essay attempts to make these two commitments cohere — to show how protections of personal privacy in the digital age can co-exist with rights to collect, analyze, and distribute information that are protected under the First Amendment.
In this essay, I reconcile these seemingly opposed interests through the concept of an information fiduciary. This concept describes an important category of people and businesses in the digital age. I will argue that many online service providers and cloud companies who collect, analyze, use, sell, and distribute personal information should be seen as information fiduciaries toward their customers and end-users.
Because of their special power over others and their special relationships to others, information fiduciaries have special duties to act in ways that do not harm the interests of the people whose information they collect, analyze, use, sell, and distribute. These duties place them in a different position from other businesses and people who obtain and use digital information. And because of their different position, the First Amendment permits somewhat greater regulation of information fiduciaries than it does for other people and entities.
The Path Forward
Professor Zittrain offers encouraging progress with the proposal he and Professor Balkin have developed for online platforms to take on the role of information fiduciaries.
We [Professors Balkin and Zittrain] are among a number of academics who have been working with policymakers and internet companies to map out what sorts of duties a responsible platform could embrace. We’ve found that our proposal has bipartisan appeal in Congress, because it protects consumers and corrects a clear market failure without the need for heavy-handed government intervention.
(“How to Exercise the Power You Didn’t Ask For”)
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Jonathan Zittrain is the George Bemis Professor of International Law at Harvard Law School and the Harvard Kennedy School of Government, Professor of Computer Science at the Harvard School of Engineering and Applied Sciences, Director of the Harvard Law School Library, and Faculty Director of the Berkman Klein Center for Internet & Society. His research interests include battles for control of digital property and content, cryptography, electronic privacy, the roles of intermediaries within Internet architecture, and the useful and unobtrusive deployment of technology in education.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies, as well as the director of the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale. Professor Balkin's work ranges over many different fields, including constitutional theory, telecommunications and Internet law, reproductive rights, freedom of speech, rhetoric, jurisprudence and legal reasoning, cultural evolution, the theory of ideology, and musical and legal interpretation.