Friday, October 16, 2015

Facebook and Google as Information Fiduciaries

unattributed graphic, viewed 10/16/15
Do Facebook, Google, and all the other online service providers to whom we entrust our emails, chats, photographs, and information intended for our own use, or the use of a limited audience, owe us privacy protection? Should these service providers be able to share our information with the government without a lawfully issued search warrant? Should they be able to freely share our information with marketers?

What is the legal doctrine or tool that might compel online service providers to safeguard the information we entrust to them?

A few days ago I reported on David Lange's talk at DePaul University, arguing that aspects of our current copyright protections may be unconstitutional. The core point was that copyright laws abridge the freedom of speech and are in violation of the First Amendment which provides "Congress shall make no law ... abridging the freedom of speech." Lange noted that this does not mean Congress may not act to protect our original speech. After all, the constitution specifically authorizes Congress to "promote the progress of the useful arts, by securing for limited times to authors ... the exclusive right to their respective writings." One of the appropriate areas for regulation, said Lange, would be for Congress to provide fiduciary protections for our works. For example, when we deliver a draft of our novel to our agent, the agent is a fiduciary and cannot appropriate the work for him or her self.

This morning, Jack Balkin (at the legal blog Balkanization) expands on this idea of "information fiduciary."

From Balkin's abstract:
This article introduces the concept of an information fiduciary to explain how many different kinds of privacy protections can be consistent with the First Amendment.

An information fiduciary is someone who, because of their relationship with another, assumes special duties with respect to the information they obtain in the course of the relationship. Traditional information fiduciaries include professionals with special skills like doctors and lawyers. ...
[M]any online service providers and cloud companies should be considered as information fiduciaries with respect to their customers, clients, and end users. They keep their operations secret and they encourage end-users to trust them; moreover, end-users do not understand and cannot monitor how their information will be used in the future....
[C]ourts should (also) modify the third-party doctrine in Fourth Amendment law. People should have a reasonable expectation that those who owe them fiduciary duties of trust and confidence will not betray them to third-parties, including the government. If new digital online service providers are information fiduciaries, end-users should have reasonable expectations of privacy in at least some of the information shared with them. Hence governments must show probable cause and/or obtain a warrant to access this information. 
Balkin's article is available at the Social Science Research Network (SSRN) HERE.

1 comment:

  1. I like the term" Instaserfs". There is an uber driver uprising. in England. Unlike the content providers, UBER drivers provide a service that functions in the material world. If went on strike except for you, Roland, no one would notice. Wait, a friend of mine from Skokie would.