Facebook is preparing to pay a multibillion-dollar fine and dealing with ongoing ire from all corners for its user privacy lapses, the viral transmission of lies during elections, and delivery of ads in ways that skew along gender and racial lines. To grapple with these problems (and to get ahead of the bad PR they created), chief executive Mark Zuckerberg has proposed that governments get together and set some laws and regulations for Facebook to follow.
But Zuckerberg should be aiming higher. The question isn’t just what rules should a reformed Facebook follow. The bigger question is what all the big tech companies’ relationships with users should look like. The framework needed can’t be created out of whole cloth just by new government regulation; it has to be grounded in professional ethics.
Doctors and lawyers, as they became increasingly professionalized in the 19th century, developed formal ethical codes that became the seeds of modern-day professional practice. Tech company professionals should follow their example. An industrywide code of ethics could guide companies through the big questions of privacy and harmful content.
State governments made compliance with such codes mandatory to get a license to practice medicine or law. Lawyers’ ethics require that they meet obligations — sometimes called “fiduciary” duties — of confidentiality, loyalty and care. Modern-day medical ethics are framed to include autonomy (i.e. respect for individual self-determination), “non-maleficence” (Hippocrates’ “first, do no harm”), beneficence and justice — concepts that reflect the same kinds of values.
Drawing on Yale law professor Jack Balkin’s concept of “information fiduciaries,” I have proposed that the tech companies develop an industrywide code of ethics that they can unite behind in implementing their censorship and privacy policies — as well as any other information policies that may affect individuals.
Just like legal and medical practitioners, tech companies are knowledge specialists, so it makes sense to obligate them to develop standards of good ethical practice for gathering and using data about you. (They can begin by googling medical and legal ethics codes!) An ethical code also doesn’t require legislation or regulation to be put into place; the companies could adopt it on their own. But it would be no surprise if a well-developed ethical code ended up being backed by law and regulation. That’s what ultimately happened with doctors and lawyers.
The scope of “information fiduciary” ethics has to apply to all people, not just a company’s customers or subscribers. (Facebook, for example, collects data on non-Facebook users, and to some degree can’t help doing so.) Even if companies can’t stop gathering user data, they certainly can be obligated to treat users and nonusers alike. They should also be duty-bound to treat them with care (don’t allow individuals’ data to be used in ways that harm them; don’t serve them content or ads that are false or misleading), loyalty (don’t put company interests ahead of the well-being of the individuals whose data you hold), and, perhaps most important, confidentiality. That last duty means, at a minimum: Don’t share individuals’ data with companies without their knowing, particular consent. And don’t share individuals’ data with governments unless the governments have sought that information consistent with international rights guarantees and norms of due process.
An industrywide — and, ideally, societywide — recognition of the tech companies’ duty of confidentiality, care and loyalty has another benefit. It can give the companies legal standing to fight for user interests in the face of government demands for individuals’ private data. More broadly, it might also give the companies standing to fight censorship of content that individuals have the right to produce, to seek and to read, as allowed by the United Nations Universal Declaration of Human Rights and other international rights instruments.
But the companies shouldn’t stop with building an ethical framework. They should also convene forums (my preferred model is the U.N.-backed internet Governance Forum) through which governments, communities, individuals and other stakeholders can raise ethical criticisms and concerns directly with the companies and one another. These forums should be global with low barriers to participation. (It follows that any tech-ethics framework should be open to amendment based on critical feedback from these forums or from elsewhere.) At worst, such a forum allows stakeholders to let off steam; at best, it can enable people who care about the internet and its services to identify emerging problems and solutions quickly.
None of this will end criticism of the big internet companies. When they remove content — abiding by either law or their own content policies — they invariably will get three reactions: You censored too much! You didn’t censor enough! You censored the wrong stuff!
Still, it’s better to allow the companies to try to keep such services from being overrun with informational garbage. If we’re smart, we’ll recognize that they’ll never be perfect, or even perfectly consistent.
It’s fashionable to suppose that all tech companies are amoral and selfish — and certainly some have given us good reason to think so. But I think it’s useful to begin by assuming they want to do good, and that they want to act in good faith. Most of their missteps, I believe, are grounded not in sociopathology or malice but in the arrogance that springs from their own perception that their intentions are beneficent.
That arrogance has been shaken by the “techlash,” which is all to the good. If the newly chastened companies like Facebook are now ready to do whatever it takes to “friend” us, drafting and adhering to a code of ethics isn’t asking too much. Commit to that, and I’ll accept the request.
Mike Godwin is a senior fellow at R Street Institute, and was elected in April to the board of trustees of the internet Society. He wrote this article for the Los Angeles Times.
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