… I find myself on both sides of this emerging conflict. On the one hand, I understand that human freedom in the information age requires regulation of new forms of social and economic power, just as it did in the first Gilded Age. On the other hand, I also believe in the constitutional freedoms of the First Amendment. This essay attempts to make these two commitments cohere — to show how protections of personal privacy in the digital age can co-exist with rights to collect, analyze, and distribute information that are protected under the First Amendment. In this essay, I reconcile these seemingly opposed interests through the concept of an information fiduciary. This concept describes an important category of people and businesses in the digital age. I will argue that many online service providers and cloud companies who collect, analyze, use, sell, and distribute personal information should be seen as information fiduciaries toward their customers and end-users … (more)
Jack M Balkin, ‘Information Fiduciaries and the First Amendment’, 49 UC Davis Law Review 1183 (April 2016).