Professional Conduct Standards for Social Media

Writing for Slate, Mike Godwin (former counsel for the Wikimedia Foundation) discusses an intriguing new way to conceptualize our relationship, as customers, with social media companies:

[Yale law professor Jack] Balkin's ... "information fiduciaries" model ... says the companies that gather our data in order to subsidize services for users could adopt -- or Congress or the courts could impose on them -- a legal and professional relationship with users as, in effect, trustees of our personal data. Just as doctors and lawyers gather information about us in order to serve us better, the companies might be constrained by the creation of similar professional relationships based on the services they offer and the individual users they are serving. As "fiduciaries," Balkin argues, the companies would have "three basic duties: a duty of care, a duty of confidentiality, and a duty of loyalty." These are the same duties that doctors and lawyers have with regard to their clients. Care and confidentiality mean the companies holding your data need to keep it secure and not use it negligently in ways that might hurt you, even accidentally. A duty of loyalty -- again, the same duty that doctors and lawyers are bound by -- means that the company you trust with your data can't use it in ways that benefit the company while hurting your interests... [format edits, bold added]

As any regular reader should suspect, I am absolutely not in favor of any company (or its customers!) being forced to have such obligations imposed by government force. That would be a violation of the freedom to contract. But, aside from the ridiculous idea that advertising robs us of free will, I think the article makes a good case for the idea that companies could and should abide by rules established by something like a professional association to ensure that something like the relationship one has with a doctor or lawyer exists regarding one's personal data. As an example, Balkin notes the following legal precedent:

Image via Pixabay.

Another possible benefit might be that Apple, Google, Facebook, Twitter, and others might have standing as fiduciaries or trustees to defend our fundamental rights of speech and privacy. After all, as we know from a 60-year-old Supreme Court case, NAACP v. Alabama, our ability to speak collectively may depend on our privacy and anonymity. In that case, the Alabama state government tried to compel the organization to disclose lists of its members (including addresses and phone numbers and so on). The NAACP resisted, and the Supreme Court concluded that (a) the NAACP has standing to assert fundamental speech and associational rights on behalf of its anonymous members, knowing that if compelled to disclose membership this would have real-world consequences for those members, and (b) these fundamental rights are deeply grounded in the First Amendment. The case is obviously relevant in this century because our ability to speak freely online and our privacy online are so intimately related. Properly understood, the NAACP was a "platform" for political speech and action in 1958, just as Facebook and Twitter are today. The companies might have standing, just as the NAACP does, to assert that the free-speech rights of their subscribers depend on their fiduciary obligation to keep user data confidential. [format edits, bold added]

I'd strike "collectively" from the above, as numerous cases of "doxing" should indicate -- along with the fact that freedom of speech is an individual right.

Although there are several things I do not agree with in this article, I think it provides enough information to suggest an individual rights-respecting, free market solution to a modern problem caused in large part by a lack of uniform basic standards regarding what companies do with our information.

-- CAV