Why not property
Many privacy proposals rest on the idea that people own their data. The fiduciary framework takes a different and more durable foundation. Facts are discovered, not authored; a birth date, an address or an income cannot be owned in any legally meaningful sense. Property can also be alienated, so a property regime lets people "consent" away protection under conditions of structural coercion. And property cannot reach government's own databases, because collection authorized by law is neither a voluntary transfer nor a trespass.
The bilateral trust
The framework replaces ownership with trusteeship. The individual is the primary trustee of facts about herself: she has the greatest stake in their accuracy and the most legitimate authority over their use. Her trusteeship is not only self-protective. By keeping facts about herself accurate and particular, she protects the integrity of a shared commons on which self-government depends.
Government holds those facts only as a secondary fiduciary. It is authorized to verify facts when constitutionally justified, and only through means that preserve the individual's primacy. The relationship is bilateral: citizens owe accurate information for legitimate civic purposes; government owes bounded, enforceable duties in return.
What follows
Two consequences matter most. First, the bilateral structure explains why government surveillance capacity, and not only surveillance activity, violates constitutional structure: a capacity that lets government know more than any particular relationship authorizes already displaces the individual's primacy. Second, it explains why centralized national digital identity systems of the kind built elsewhere are unavailable in the American constitutional setting, whatever their democratic provenance.
The commons framing also avoids two bad outcomes of a property regime: informational monopolies purchased by the powerful, and individuals suppressing truthful information that others legitimately need. Facts can be governed. They cannot be owned.
Where this is developed
- Government as Information Trustee: A Fiduciary Framework for Surveillance-Age Privacy
- The Architecture the Court Cannot Build: Chatrie v. United States and the Case for Fiduciary Governance of Government Data
- Context as Constitutional Constraint: How Authorized Informational Context Grounds the Fiduciary Duty of Loyalty