Harvard Law Review Harvard Law Review Harvard Law Review

Consumer Law

The Fiduciary Model of Privacy

Responding to David E. Pozen & Lina M. Khan, A Skeptical View of Information Fiduciaries

The full text of this Response may be found by clicking on the PDF link to the left.

In the digital age people are increasingly dependent on and vulnerable to digital businesses that collect data from them and use data about them. These companies use data to predict and control what end users do, and to sell advertisers access to those end users. Digital companies invite people to trust them with their data. When people accept that offer of trust, they become vulnerable: to how the companies use their data, to companies’ data security (or lack thereof), and to companies’ choice to share or sell the data to others. Because of the vulnerability and dependence created by information capitalism, I have argued that the law should treat digital companies that collect and use end user data according to fiduciary principles. The law should regard them as information fiduciaries.

 

* Knight Professor of Constitutional Law and the First Amendment, Yale Law School.