“Information Fiduciaries” Idea Won’t Fix Platform Monopolies, say Open Markets Fellow and Columbia Law Professor

Open Markets senior fellow Lina Khan and Columbia law professor David Pozen have published a new paper criticizing the idea that digital platforms should be treated as “information fiduciaries.” First introduced by Yale Law School Professor Jack Balkin, the proposal would impose on digital companies such as Facebook and Google special duties not to harm their users. In December, a group of Democratic Senators introduced a bill that draws directly from this proposal. In an interview last week, Mark Zuckerberg appeared to endorse it.

Khan, also an academic fellow at Columbia Law School, and Pozen’s new paper breaks with the growing consensus that this “information fiduciaries” framework is a desirable solution to digital platforms’ major privacy problem. A Skeptical View of Information Fiduciaries, identifies a number of tensions and problems in Balkin’s proposal.

“The relevant inquiry for legal reformers… should not just be how a firm such as Google or Facebook exercises its power over end users, but whether it ought to enjoy that kind of power in the first place,” Khan and Pozen argue. “Limiting the dominance of some of these firms may well have salutary effects for online privacy, both by facilitating competition on privacy protection and by reducing the likelihood that any single data-security failure will cascade into a much broader harm.”

According to Khan and Pozen, Balkin’s proposal diverts attention away from central problems regarding the dominant digital platforms — namely, high levels of market concentration, issues of free speech, problems inherent in the targeted-advertising-based business model which, among issues of user privacy, are strangling journalism and the production of news.

Khan and Pozen warn that if the law were to make Facebook and Google “information fiduciaries,” it would risk ratifying their structural power and prematurely abandon alternative avenues for public intervention, such as enforcing anti-monopoly policies.

“We can regulate the dominant online platforms as information fiduciaries or we can target their market dominance, but very likely we cannot do both,” write Khan and Pozen. “[W]e believe that pro-competition policies should assume a more prominent place in the debate.”