Should we hold companies like Equifax and Facebook responsible for the protection of our personal information in the same way we hold banks and hospitals responsible? Should we expect the same level of control over data we’ve given to Google as we do with information shared with our doctor or lawyer?
Should we hold companies like Equifax and Facebook responsible for the protection of our personal information in the same way we hold banks and hospitals responsible? Should we expect the same level of control over data we’ve given to Google as we do with information shared with our doctor or lawyer?
A new bill introduced by Senate Democrats on Wednesday says the answer is “Yes,” that some online companies should bear a comparable level of responsibility for the control and protection of Americans’ private data. Because ultimately, the argument goes, Mark Zuckerberg should have a similar level of responsibility to protect your data as your doctor does.
While the legislation is new, this idea is not. Some legal experts have long argued that companies that handle large amounts of data should have a legal obligation to act responsibly. They call such companies information fiduciaries.
Senator Brian Schatz, the bill’s principal author, says he’s going with something a bit less snooze-inducing and complicated: “data care.” (The term “data care” is used in lieu of “information fiduciaries,” he explained, because the latter provokes too many extraneous legal connotations.)
Jack Balkin, a professor of constitutional law at Yale, wrote on this topic in 2016 about how the law requires doctors and lawyers—traditional fiduciaries—to act in good faith, and “on pain of loss of their license to practice,” specifically because our interactions with them are unavoidable. We depend on them and in some cases have no say in the matter. The confidentiality of some information, he then says, is not conditional based on its content alone, but may be private by default because of a special social relationship.
