When All You Have Is a Fiduciary

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

James Grimmelmann – 

fbookOnline platforms do different things for (and to) users. Some of these things are a good fit for fiduciary principles, some are not.

Perhaps most obviously, platforms collect data about users. Some of that data is inherently sensitive, like health records; some of it is sensitive in the aggregate, like months of Facebook likes. Either way, the users could be harmed if their data got into the wrong hands or were used against them.

Fiduciary principles are a good fit for platform data collection in two overlapping ways. First, the core fiduciary duty of confidentiality has long applied to knowledge professionals like doctors and lawyers when they receive information about their patients and clients. Like digital platforms, they need information to do their jobs; fiduciary law makes sure they use it only to do their jobs. Second, fiduciary duties of care and loyalty have long applied to parties who are entrusted with a thing of value. That’s what happens in a literal trust, the paradigmatic source of fiduciary duties. It is not difficult to extend those duties to parties who hold information, rather than money or other tangible property. Current U.S. information privacy law is patchy and hesitant, but its best version of itself would cash out fiduciary principles in specifying when and how platforms can use and share user data.

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Raze and Rebuild the Property Course

James Grimmelmann

“Certainly if we view the common law on the eve of reform, we see the spirit of Heath Robinson at his most extravagant. … It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole.”

S.F.C. Milson, Historical Foundations of the Common Law xii (1969)

It is impossible to speak critically about a disorganized mess, except in one of two unsatisfying ways. One can point out a detail here or there that seems exceptionally out of joint, or one can gesture uselessly at the whole awful heap and suggest in vague terms that perhaps it ought to be scrapped and replaced with something better. Real reform requires real understanding.

The traditional organization of the first-year Property course is an affirmative obstacle to comprehension. It starts with an act of misdirection, encouraging students to think that property law is only about houses and land, please pay no attention to the vast amounts of abstract wealth sloshing through the financial system. It continues with a protracted tour of the Museum of Doctrinal Arcana, featuring such exhibits as the distinction between remainders vested subject to open and remainders vested subject to complete defeasance.

It is not that it is hard to find interesting political angles in this tangle. From “first” possession to permanent physical occupations, the use and abuse of power is everywhere in the course. A skilled teacher who wants to bring out progressive themes can do so in every class. So can a skilled teacher who wants to emphasize economic analysis, or the choice among institutions, or the long shadow of history. (Teachers gonna teach, teach, teach, teach, teach, teach.)

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