Q 8. I’ve heard something about this “information fiduciary” idea, that has been put forth by Jack Balkin and Jonathan Zittrain. Can you tell us more, and how your model differs?
A. Sure.
Some very smart folks like Zittrain, Balkin, and former FCC Chairman Tom Wheeler have done a commendable job of bringing to the policy table the notion of applying fiduciary duties to the platform companies.
I see three material differences between the Balkin model and the TM model, across the trust/accountability/support components I discussed previously.
-- The Balkin model would be (1) mandated/imposed by government, (2) based on a rudimentary duty of care (do no harm), and (3) focuses on the data/information component.
-- The DTM model would be (1) entered into freely by both sides, (2) based on a heightened duty of loyalty, and (3) includes all major aspects of the digital world.
Q 9. Didn’t Mark Zuckerberg recently claim that Facebook already is a fiduciary today?
A. Yes.
The concept came up in an interview at Harvard a few months ago, where Zuckerberg claims to see FB already as a fiduciary to its users. I don’t really agree, but again that can easily be a (much) longer conversation.
Q 10. And didn’t Zuckerberg last week also announce a new privacy-centric business model for Facebook? That sounds a bit like what you are describing.
A. Not exactly.
Zuckerberg’s approach appears to be largely to retain the current Facebook business model for the social media portion of his platform, while supplementing the communications channels (WhatsUp, etc) with a more privacy-focused approach. So it seems Facebook would continue the actual lucrative business model of harvesting and utilizing personal data via the other FB platforms and the open Web. In fact, this is one of the reasons I have expressed concern in the past about folks using the broad brush of "privacy" (rather than autonomy, or choice, or freedom, or other pro-user concepts) as the primary sword raised against the platform companies. Frankly it’s just too early to accurately assess Mr. Zuckerberg’s motivations and outcome --- so I won’t try. But a fascinating development to be sure.