Old School Goes Online: Exploring Fiduciary Obligations of Care and Loyalty in the Platforms Era [FINAL VERSION]
60 Pages Posted: 1 Aug 2019 Last revised: 10 Aug 2020
Date Written: February 2, 2020
The concept of information fiduciaries has received considerable attention in recent years, as one way to impose greater societal obligations on Web-based entities. This paper seeks to probe the information fiduciaries concept, as a useful entrée into a broader discussion of how to bring longstanding legal institutions into the online digital world.
This paper has five primary objectives. First, it will describe the information fiduciary (IF) model, as laid out by scholars Jack Balkin and Jonathan Zittrain, and criticized recently by Lina Khan and David Pozen. Second, it will undertake a deeper dive into the basics of the common law of fiduciary obligations, including the twin duties of care and of loyalty. Third, the paper will examine the information fiduciaries concept from the standpoint of traditional common law and modern-day commentary.
Fourth, the paper will explore a proposed alternative legal model, the “digital trustmediary” (or DTM), with entrusted entities voluntarily acting under a heightened fiduciary duty of loyalty to their clients. This DTM model will be posited as a viable response to the current Web ecosystem, which is presided over by online platforms extracting and analyzing end user data in the absence of express fiduciary obligations.
The paper concludes by suggesting ways to meld together the two different but complementary fiduciary approaches in the context of Web-based entities. Consistent with the author’s prior written work on functional openness, the overarching intention is to breathe productive new life into old school legal doctrines.
Keywords: information fiduciaries, duty of loyalty, duty of care, platforms, data protection, privacy
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