Chapter Two: D>=A - Expanding our Human Rights in the Digital Realm

Every historical crisis terminates in institutions. If we have no control over the crisis itself, which is pure hazard, we do have control over the institutions, since we can define them, choose the ones for which we will fight, and thus bend our efforts toward their establishment. Albert Camus, The Rebel (1956).

In the opening article of this series, we explored the necessity of creating enduring change in our failing social systems, in particular the exploitative ethos of the Web. Against the relentless online paradigm of “SEAMs” (Surveil, Extract, Analyze, and Manipulate) was posited a counter-paradigm of enhancing human autonomy and agency via computational systems, or “HAACS.” The article suggested that effective leverage points include creating human-centric infrastructures of trust and empowerment. Below, we will see how fiduciary law principles provide one promising pathway to expanding our rights in the digital realm.

The scenario: IRL

It’s early March 2020, someplace in the United States, and Carla wakes up early with a high fever and tenacious cough. She doesn’t typically come down with the flu bug this time of year, but this one already feels pretty bad. After a quick browse online with her symptoms, she decides to make an appointment with her primary care physician.

Next morning, Carla takes her two young children to daycare, and then drives to the health clinic. The medical assistant takes her vital signs, and jots down her symptoms. Doctor Jones comes by, reviews the file, asks some questions. The verdict? Likely the seasonal flu. Medication is prescribed.

On her way home, Carla stops at the pharmacy to pick up an antiviral prescription and some cough syrup. She then retrieves clothing from the dry cleaner, cashes a check at the credit union, and drops off to the library three borrowed books on the history of institutional racism. Once home, Carla looks over her mail, including a monthly statement from her employer’s pension plan, and a legal document extending a guardianship to care for her ailing father. Later she returns to daycare to gather up her kids.

The fiduciary world around us

While Carla may not be fully aware of it, typical moments in her everyday “analog world” include interactions with various types of fiduciaries. These are individuals or entities with whom Carla has an ongoing relationship of some sort, as an existing customer, client, or patron. In each case, Carla is placing her trust in their care, for the well-being of herself, her family members, and their interests and possessions. In return, these entities owe Carla various obligations to protect and promote her personal interests. She operates in a social fabric made up of interwoven trust relationships.

The law of human relationships: from power, to trust

Over hundreds of years, fiduciary law has formed essentially the ethos of uneven person-to-person relationships.[1] This legal doctrine is entwined with centuries of equity, torts, and other common law disciplines. Noted legal expert Tamar Frankel has observed that “throughout the centuries the problems that these laws were designed to solve are eternal, etched in human nature, derived from human needs, and built into human activities.”[2] Not surprisingly, then, fiduciary law principles are near-universal, having been applied across a vast array of human endeavors,[3] and encompassing most major global cultures and societies.[4]

The basis for a fiduciary relationship is straightforward: assigning certain legal and moral obligations to people engaged in exchanges of value with each other. The linchpin is what Frankel calls “entrusted power,”[5] where one person holds a significant advantage over another. What are some examples from Carla’s day? Doctor and Patient. Attorney and Client. Financial Advisor and Client. Pharmacist and Customer. Bank and Customer. Librarian and Patron.

In each instance, Carla is entrusting a third party (the fiduciary) with something of value to her (the entrustor or beneficiary), based on a certain recognized duty of care or loyalty that they owe to her in return. Parents too have a long-recognized fiduciary duty to care for their minor children; grown children in turn have similar duties to provide care to infirm parents. Even dry cleaners owe a related “bailment” common law obligation for the clothing entrusted to their temporary care.

These fiduciary-based norms and practices have become so ingrained in our daily lives, often we forget that they exist, or how much we rely upon them. In each instance, the duty is rooted in asymmetric power relationships between people.[6]

Typically there are three indicators that parties are engaged in a fiduciary relationship: expertise, benefit, and confidences.

· Expertise. In each instance, Carla is dealing with someone possessing considerable specialized expertise, knowledge, or experience in their chosen field — her doctor, her lawyer, her pharmacist, her financial advisor, her librarian. With this expertise comes the expectation that the fiduciary will exercise good judgment in the ways it makes decisions on the entrustor’s behalf, and otherwise meets its obligations to her.

· Benefit. Each of these relationships concerns Carla receiving a benefit of significant value to her — for example, medical assessment and treatment, or financial management, or legal advice and representation.

· Confidences. In most instances, some sensitive information is created, or changes hands, or otherwise becomes subject to protection. Consider doctor-patient confidentiality, or attorney-client privilege. By voluntarily sharing private aspects of herself, Carla seeks the fiduciary’s services to better her personal situation — even down to protecting her library lending records.

For example, Carla’s doctor may be the first to learn that she has tested positive for COVID-19. The doctor’s expertise allows him and his staff to interpret the results, and prescribe treatment. This diagnosis, and subsequent treatment and care, also bring significant benefits, in terms of ramifications for Carla’s family and friends, her employer, her community. The nature of confidentiality gives the doctor some discretionary power to disclose, or not disclose, the results to other people.

Recognizing duties of care and loyalty

In many cases, fiduciaries are considered professionals, bound by enforceable rules of conduct governing their actions, which creates some accountability and recourse for the entrustors. The entrusted power is acknowledged, channeled, and otherwise put in check. For this reason, fiduciaries live by codes of trust.

Normally a fiduciary abides by two basic sets of obligations: a duty of care, and a duty of loyalty.[7]

· Duty of Care: This obligates the fiduciary to, at minimum, carry out its practices in a prudent and reasonable manner, and may also prohibit causing harm to the entrustor.

· Duty of Loyalty: This obligation goes further than care. Under the so-called thin version, the fiduciary must have no conflicts of interest or duty. The thick version requires that the fiduciary promote the entrustor’s best interests. Other related fiduciary duties include good faith and confidentiality.

Carla’s voluntary acts of entrustment convey considerable power to the doctor, the lawyer, the pharmacist, and others. In return, she rightly expects to directly benefit from the arrangement, and be protected from the control they gain over her. But what about in a digital setting? When Carla goes online, to check her email, or visit social media sites, or search for medical information about her symptoms? Where are the duties of care and of loyalty that follow the entrustment of power to others? Where are the digital versions of fiduciaries?

In short: there aren’t any.

Welcome to Userhood

At the root of our online challenges is our consignment to the role of a user. Our “userhood” plays out in increasingly unfavorable aspects, via our interactions with (1) the World Wide Web, (2) online platform companies, and (3) data brokers.

Aspect One: The Web

Carla has grown accustomed to dealing in offline relationships with entities and individuals that treat her, at minimum, as a valued customer, but perhaps also as a bona fide client, or a well-guarded patron. Unfortunately, those same concepts typically hold little meaning with other types of entities online. There, as far as the Web is concerned, she is a “user.” With no mutual relationship, no protection, and no recourse.

On the Web, the default rule is your user status. Which means, in essence, that you visit websites, click on applications, utilize offerings, for which you pay with your personal data. And in return, you become subject to the one-sided terms of service that their lawyers write to apply to these interactions. These websites and app providers and social media companies endeavor to owe you nothing beyond the basic transaction. No duties of care, or loyalty, or simple good faith. No promises to treat you like a bona fide client, or patron, or even a “mere” customer. Just a user.

Noted designer Don Norman decries how “we degrade people by the passive, inert term of ‘user’” (he’s no fan either of the “consumer” and “customer” labels).[8] Similarly, Twitter CEO Jack Dorsey has called for reconsidering the term. Although tech designers speak of concepts like “user-centric design,” “user benefit,” and “user experience,” Dorsey observes that “the result is a massive abstraction away from real problems people feel on a daily basis.”[9]

The basic problem, of course, is that the abstraction is very real; the nomenclature of userhood matches well to the actual ways we are treated online. Userhood is, Norman observes, a way of labeling humans “as objects instead of personifying them as real living, breathing people.”[10]

Aspect Two: The Platforms

As mentioned in the previous article, Web companies today are keen to employ the SEAM control paradigm. This involves continual data-centric feedback cycles of surveillance, extraction, analysis, and manipulation. Being a user means being especially open and vulnerable to all these simultaneous activities.

In complex systems terms, the SEAM cycle is a “reinforcing feedback loop.” This means the more it works, the more power it gains to work some more. As with other similar societal systems, this particular dynamic can lock us into a “success to the successful” trap. [11]

The SEAM cycle only exacerbates the abstraction, objectification, even denigration, of the humans in front of the screens. Much of what we may choose to grant to trusted agents in the analog space, increasingly and automatically is being extracted from us in the digital space. We may recognize that entrusted power is evident with an online entity — for example, Carla benefits from having a digital existence, there are significant gaps in expertise, and the entity has unique access to Carla’s sensitive personal data and confidences. But in these digital systems, there is nothing akin to a fiduciary role. No real duties, no meaningful consent, and no recourse.

Another way to envision the situation is that, as Doc Searls puts it, the Web “has boundary issues.”[12] Even Carla’s two small children over time have come to learn about setting personal boundaries — both protecting their own, and respecting those of others. By contrast, the SEAMs-driven Web is like an untutored child, seeing anything and everything in the world as fair game for its own aggrandizement.

Aspect Three: The Data Brokers

Crucially, the SEAM cycle also opens the door wide to mysterious third parties — brokers, aggregators, advertisers, marketers, and the like. These entities may be lurking in the shadows, laying claim to aspects of our online interactions — usually including one’s personal data. These data brokers and aggregators and advertisers and marketers may have never even legitimately interacted with you.[13]

(Source: https://crackedlabs.org/dl/CrackedLabs_Christl_CorporateSurveillance.pdf)

Being a Web user by default means inviting these anonymous third parties to access your personal data, getting nothing in return except concerted attempts to influence you to buy something. Doc Searls puts it well: we are “running naked through the digital world … as we were in the natural one before we invented clothing and shelter.”[14]

In the online context, as expert Rachel Botsman acknowledges, a leading cause of distrust is the mismatch in motivations between users and platforms.[15] As we have seen, too many online entities typically treat those using their services as mere users, rather than bona fide customers. This objectification carries over to their commercial practices, which rely heavily on the SEAM cycle. All of which inevitably leads to a more trust-deficient Web.

Further, as the Web has become ever more complex, threats may come with the next mouse click, or voice command. And yet, protecting oneself has become ever more challenging. Again, the mismatch in motivations between platforms and users creates an erosion in fundamental responsibility — a lack of “skin in the game.”[16] As one example, when Web companies even provide customer support, the result is almost entirely reactive, and for most of us a subpar experience. As Botsman puts it, “the online landscape is vastly populated and yet, all too often, empty of anyone to take charge or turn to when it counts.”[17] The buck stops elsewhere.

Bringing fiduciary concepts to the Web

The digital world holds vast potential to improve our lives. And yet, at the same time the SEAMs feedback cycles expose us to countless threats to our well-being. As our personal data and actions and behaviors are relentlessly tracked and monetized on the Web, there is a compelling need to bring online old school virtues of care and loyalty and confidences-keeping. But how exactly?

For starters, we need to begin demanding adherence to a simple practice — our digital technologies should promote our interests, not harm them. This means that people like Carla should be treated online at least as well, if not better, than offline. We deserve to have access to at least the same basic rights in the digital world, as we expect in the analog world. Certainly not fewer, and optimally more. In short, we need a fiduciary-style formula, something like: D>=A

This formula proposes to elevate our rights in the digital world (D), so that they meet or exceed our rights in the analog world (A).

The unifying principle is to put humans in control. In terms of power asymmetries, we need to build something like the HAACS ethos, of human autonomy and agency, via computational systems. In terms of systems dynamics, we must create new feedback loops, to challenge and eventually replace the SEAM cycles of surveillance, extraction, analysis, and manipulation.[18] In terms of basic human psychology, we should be empowered to set our own boundaries, signaling to the rest of the digital world what is acceptable to us, and what is not.[19]

Fiduciary duties of care and loyalty could be one way to get us there online. Among other benefits, these duties:

· reflect shifting from the transactional mode of SEAM cycles (surveillance, extraction, analysis, manipulation), to the relational mode of HAACS (human agency/autonomy via computational systems);

· provide legitimate “skin in the game” on both sides of entrustment-based relationships with companies;

· require degrees of trust and support, that over time can feed back onto each other in positive ways; and

· “run with the person,” and all her contextual and relational ways of being in the world.

Fiduciary law certainly is not a panacea for all that ails us as a society. Some forms of social power and control likely require deeper institutional change.[20] But fiduciary-like principles do provide us with a tool — even a weapon — to counter some of the power imbalances that have become so prevalent online. The challenge is to find ways to embed it in the digital fabric of the Web.

We can start, perhaps, by seeking out and partnering with those who wish to abide, openly and voluntarily, by duties of care and loyalty to us. We can also consider imposing similar obligations where those with entrusted power resist using it accountably.

Conclusion: Countering the SEAMs

“Energy for change is created by the tension between a desired and the actual condition.” David Peter Stroh, Systems Thinking for Social Change (2015)

Carla deserves far better when she glances at her smartphone, or clicks on a website link. For the pervasive lack of trust and support she experiences online, the root cause is the same: entities who may claim outwardly to act on her behalf, but are financially conflicted from fully doing so. When one is the user, the object, the product, of an unbalanced online “relationship,” the company’s motivations are to do only as much as necessary to keep your eyes glued to screens, with no questions asked.

Perhaps the key is to delegate one’s aspirations for the Web to trustworthy and supportive third-party relationships. As we will see over the next three articles, the ethos of fiduciaries can be harnessed to play a particularly crucial role on behalf of Web users. A mix of personal, collective, and community-based agents can help us essentially to “countermediate” against the uninvited intermediaries that continue to dominate our digital worlds.

Next month: Digital fiduciaries in action.

Supported by Omidyar Network

[1] For a deeper exploration of fiduciary law in the context of the digital world, see generally Richard Whitt, Old School Goes Online: Exploring Fiduciary Obligations of Loyalty and Care in the Digital Platforms Era, Santa Clara High Technology Law Journal, Vol. 36:75 (2020). https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1648&context=chtlj.

[2] Tamar Frankel, Fiduciary Law (2010), at 79.

[3] The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller, & Robert H. Sitkoff eds., 2019), at 23–363.

[4] Id. at 471–663.

[5] Frankel, Fiduciary Law, at 7.

[6] Whitt, Old School Goes Online, at 87–88.

[7] Whitt, Old School Goes Online, at 90–94.

[8] https://jnd.org/words_matter_talk_about_people_not_customers_not_consumers_not_users/.

[9] https://jacks.tumblr.com/post/33785796042/lets-reconsider-our-users.

[10] https://jnd.org/words_matter_talk_about_people_not_customers_not_consumers_not_users/.

[11] Donella H. Meadows, Thinking in Systems: A Primer (2008), at 155.

[12] https://www.linuxjournal.com/content/dealing-boundary-issues.

[13] https://www.fastcompany.com/90310803/here-are-the-data-brokers-quietly-buying-and-selling-your-personal-information.

[14] https://blogs.harvard.edu/doc/2018/10/12/naked/.

[15] Rachel Botsman, Who Can You Trust? How Technology Brought US Together, and Why It Might Drive Us Apart (2017), at 8–9, 259–260.

[16] Taleb, Skin in the Game (2018).

[17] Botsman, Who Can You Trust?, at 108.

[18] Meadows, Thinking in Systems, at 157.

[19] https://blogs.harvard.edu/vrm/2018/07/10/privacy/.

[20] See Catherine D’Ignazio and Lauren F. Klein, Data Feminism, (2020), at 8–26 (describing the structural privilege and oppression inherent in power, and different domains of domination).