WOODROW HARTZOG, Boston University School of Law, Stanford Law School Center for Internet and Society
Email: whartzog@bu.edu
NEIL M. RICHARDS, Washington University School of Law, Yale Information Society Project, Stanford Center for Internet and Society
Email: nrichards@wustl.edu

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our model takes advantage of loyalty’s strengths—it is well-established in our law, it is flexible, and it can accommodate conflicting values. Our Essay also explains how data loyalty can embolden our existing data privacy rules, address emergent dangers, solve privacy’s problems around consent and harm, and establish an antibetrayal ethos as America’s privacy identity.

We propose that lawmakers use a two-step process to (1) articulate a primary, general duty of loyalty, then (2) articulate “subsidiary” duties that are more specific and sensitive to context. Subsidiary duties regarding collection, personalization, gatekeeping, persuasion, and mediation would target the most opportunistic contexts for self-dealing and result in flexible open-ended duties combined with highly specific rules. In this way, a duty of data loyalty is not just appealing in theory—it can be effectively implemented in practice just like the other duties of loyalty our law has recognized for hundreds of years. Loyalty is thus not only flexible, but it is capable of breathing life into America’s historically tepid privacy frameworks.

ROSEMARY TEELE LANGFORD, University of Melbourne - Law School
Email: Rosemary.Langford@unimelb.edu.au
MALCOLM EDWARD ANDERSON, Melbourne Law School, Australian Institute of Archaeology
Email: m.anderson@unimelb.edu.au

This article reports the results of an extensive survey of charity trustees in England and Wales in relation to governance duties and conflicts of interest. The results help discern trustees’ understanding of, and confidence with, their governance duties, their enthusiasm for practical assistance with these duties, the strength of their conflicts management procedures, as well as compliance motivations and perceived barriers to enhanced governance and compliance. This in turn assists in critical evaluation of the effectiveness of the governance and regulatory system of charities in England and Wales.