DL Seminar | A Skeptical View of Information Fiduciaries

By Renee Zacharowicz | MS Student in Information Science

Illustration by Gary Zamchick | DLI Chronicler

In his Digital Life Seminar talk on February 14, 2019, Columbia Law School Professor David Pozen makes a compelling counterargument to Balkin’s appropriation of a fiduciary entity to Facebook, Google, twitter etc. Such platforms- Facebook in prominence but not in exclusivity- have come under intense scrutiny in the past few years due to their implications in genocide, propaganda proliferation, hate speech, terrorism recruitment, and Russian meddling. Secondarily but not inconsequentially, social networks short-circuit family units and widen the political aisle.

Established legal and political principles are not suited for handling these digital threats. Of primary concern are the political experts who are naive to the basic functionality, technical limitations, and company practices of Facebook. This became all too clear in the 2018 congressional hearing of Mark Zuckerberg regarding the Cambridge Analytica scandal. Senators Kennedy, Schatz, Hatch, Wicker, Blumenthal, Graham and others advertised America’s legislative ignorance and made it blindingly clear that the governing powers do not know the animal they are up against, less how to address it.

Enter Balkin, a leading legal academic at Yale University, who makes a valiant effort to fit Facebook into an information fiduciary framework in the hopes of forging a trustworthy relationship between Facebook and its 2.32 billion users. While Balkin’s motivating objectives are understandable, his tactic is fundamentally flawed, according to Pozen.

On the most fundamental level, Facebook has no business occupying the fiduciary bucket. The fiduciary structure secures trust and maintains confidentiality between a server and client. This structure makes sense in a context where the roles are clearly defined and a good-acting server necessarily benefits her client. The fiduciary structure then simply ties the knot, solidifying trustworthiness.

However, in this complex relationship, Facebook’s users are arguably not its clients. Pozen brings this point home in his illustration of the Facebook physician who examines her patient free-of-charge, tailoring her medical recommendations to fit the interest of drug companies responsible for her income. The poor patient is bombarded with leaflets and advertisements funded by those who are concerned with patient experience to the extent that it will affect her return to the site for further advertisement manipulation. No, Facebook’s users are not its clients. Its users are simply means to fulfill its truly owed fiduciary responsibilities: to its shareholders.

Under the law, this Delaware company is required to give absolute consideration to stockholders’ benefit. Undoubtedly, improving user experience is at odds with fulfilling shareholding legal and business responsibilities. Notably, Facebook cannot simultaneously satisfy shareholders’ ad revenue expectations while satisfying data privacy concerns which are the workhorse of this ad-targeting company. Facebook’s legitimate fiduciaries and its would-be user fiduciaries have undeniably divergent benefits.

Second, neither Facebook nor its users cleanly define the expert-server or vulnerable-client personas. Facebook neither provides nor produces expert services for its users. Its service is simply a well-adopted platform. Its proprietary, revenue-driving optimization algorithms influence user experience for ulterior purposes to its user-objectives. This service is a world away from a proprietary optimization algorithm packaged and delivered for its users. On the other end, users are not entering a vulnerable affiliation with Facebook per se. Facebook’s users upload personal content of their choosing and share it not with Facebook but with selected friends. While vulnerability and insecurity on social media is a serious matter, it is not a function of the Facebook-user hierarchical relationship. Instead, vulnerability on social media is a function of other users’ hate-filled comments which increase in vitriol behind a thin digital avatar and instantaneously propagate through the network.

Finally, the information fiduciary tag immediately peels off when one considers the impractical nature of Facebook entering into a binding relationship with its 2 billion users. Obviously, Facebook’s user body is fractalized and fragmented. How could Facebook feasibly address the needs of a 2 billion account holders whose needs and demands conflict more with each other than Facebook? And how might Facebook address a court appeal? Would any one user have the legal right to take Facebook to court or would there be a requirement for thirty percent of the world’s population to defend the user agreement?

Facebook’s profound position on the world’s stage cannot be overstated. The intent of Pozen’s thesis (and this post) is not to dismiss Facebook’s responsibility to its users and influence but to point out fundamental flaws to misappropriating an old construct to a new entity. Political and legal experts alike need to safeguard inalienable rites and securities by addressing technological advancements with statutory innovation.