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99 Wash. U. L. Rev. 961 (2021-2022)
A Duty of Loyalty for Privacy Law

handle is hein.journals/walq99 and id is 979 raw text is: A DUTY OF LOYALTY FOR PRIVACY LAW NEIL RICHARDS* & WOODROW HARTZOG** ABSTRACT Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self- dealing exploitation of people has become a major element of the internet's business model. Academics and policymakers have recently proposed a possible solution: require those entrusted with people's data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, exactly, would such a duty of loyalty require? What are the goals and limits of such a duty? Should loyalty mean obedience or a pledge to make decisions in people's best interests? What would the substance of the rules implementing the duty look like? And what would its limits be? This Article suggests a duty of loyalty for personal information that answers these objections and represents a promising way forward for privacy law. We offer a theory of loyalty based upon the risks of digital opportunism in information relationships that draws upon existing--and in some cases ancient-precedent in other areas of American law. Data collectors bound by'this duty of loyalty would be obligated to act in the best interests of people exposing their data and online experiences, up to the extent of their exposure. They would be prohibited from designing digital tools and processing data in a way that conflicts with trusting parties' best interests. We explain how such a duty could be used to set rebuttable presumptions of disloyal activity and to act as an interpretive guide for other duties. And we answer a series of objections to our proposed duty, including that it would be vague, be too narrow, entrench surveillance * Koch Distinguished Professor in Law and Director, Cordell Institute, Washington University in St. Louis. ** Professor of Law and Computer Science, Northeastern University. Thanks to Jack Balkin, Matt Bodie, Ryan Calo, Danielle Citron, Julie Cohen, Bob Gellman, Sue Glueck, Claudia Haupt, Cameron Kerry, Jesse Lieberfeld, Jon Penney, David Pozen, Andrew Tuch, Salome Viljoen, Ari Waldman, Rebecca Wexler, Tal Zarsky, Jonathan Zittrain, and the participants at the 2020 Privacy Law Scholars Conference at the George Washington University School of Law and law faculty workshops at Northeastern University and Washington University. Thanks also to Alissamariah Gutierrez, Alexis Johnson, Hannah McDonnell, and Alex Nally for their research assistance. 961

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