The Fiduciary Model of Privacy

Abstract

I. DIGITAL DEPENDENCE IN SURVEILLANCE CAPITALISM. In the digital age people are increasingly dependent on and vulnerable to digital businesses that collect data from them and use data about them. These companies use data to predict and control what end users do, and to sell advertisers access to those end users. Digital companies invite people to trust them with their data. When people accept that offer of trust, they become vulnerable: to how the companies use their data, to companies' data security (or lack thereof), and to companies' choice to share or sell the data to others. Because of the vulnerability and dependence created by information capitalism, I have argued that the law should treat digital companies that collect and use end user data according to fiduciary principles. The law should regard them as information fiduciaries.

We rely on digital businesses to perform many different tasks for us. In the process, these businesses learn a lot about us - our likes, our dislikes, our habits, our movements, websites we visit, who we communicate with and when we do it, features of our bodies, even how we type on, click, and touch digital interfaces. Although digital companies know a lot about us, we do not know a lot about them - their operations, what kinds of data they collect, how they use this data, and who they share it with. Because of this asymmetry of information, we are especially vulnerable to them, and we have to trust that they will not betray our trust or manipulate us.

The problem is not simply asymmetry of information. Many companies design their interfaces to facilitate and encourage the disclosure of information, including information we may not even be aware we are disclosing. Simply moving around a city with a cell phone or other digital device may produce lots of information about us. Social media companies like Facebook design their interfaces to make it difficult to protect our privacy, burying privacy settings and making them confusing. They also use algorithms to monopolize our attention and keep us fixed to the site so that we will disclose even more information. Some companies have even taken a cue from casinos in figuring out how to addict their audiences.