Platforms As Trustees: Information Fiduciaries and the Value of Analogy

Abstract

This article responds to Lina Khan and David Pozen’s “A Skeptical View of Information Fiduciaries.” Their thoughtful critique responds to Jack Balkin who has argued that the law should treat online service providers as “information fiduciaries,” based on an analogy to the fiduciary duties of professionals such as lawyers and doctors. Khan and Pozen’s critique is twofold. They suggest that the fiduciary analogy Balkin offers falls short, and, moreover, that the overall approach of imposing fiduciary duties unhelpfully obfuscates deeper concerns with the platforms’ business model and their dominant market position. This Response takes up the first aspect of their critique.

This Response reexamines the professional fiduciary analogy and outlines the implications of analogizing information fiduciaries to other traditional fiduciaries. Cautioning against over-reliance on professional fiduciaries as the model, I suggest that information fiduciaries in many respects are more usefully analogized to trustees than to professionals. Ultimately, analogies are imperfect and different fiduciary models seek to solve different sets of problems. To find the appropriate new set of duties to impose on platforms, we should not rely on one model alone.

Keywords: fiduciary theory, First Amendment, online service providers, social media, platform governance, professionals, trustees, information fiduciaries

JEL Classification: K00, K2, K20