What is Fiduciary Commons?
A constitutional argument and a set of model state laws. The argument is that the Fourth Amendment already makes government a fiduciary, a legally bound trustee, of the information it collects about people. The laws give those duties force: VIDA for digital identity, PDTA for government's use of personal data, and GAAFA for artificial intelligence.
What is a fiduciary?
Someone entrusted to act on your behalf and legally required to put your interests first. Lawyers, doctors and trustees are fiduciaries. The law treats these relationships specially because you are vulnerable, cannot fully monitor what they do, and have no practical choice but to trust them. Your relationship with government over your information has all of those features.
How is this different from existing privacy law?
Most privacy law relies on notice and consent: you are told what will happen and you click "agree." That fails when you have no choice, as with government. Fiduciary duties apply whether or not you "agree," and the model acts let you enforce them in court rather than waiting for an agency to act.
Does this apply to companies?
The constitutional duty applies to government, because government's power over you is mandatory. Companies that join a state's digital identity system accept a contractual duty of loyalty as a condition of participating. The two layers are deliberately kept separate.
Won't this make it harder to catch criminals or stop fraud?
It requires government to meet standards the Constitution already sets, through systems that enforce them. License plate checks still flag stolen cars and wanted vehicles; what disappears is the movement history of everyone else. See the six hard cases.
Is any of this law yet?
Utah has enacted statutes that incorporate elements of the framework, including the first statutory duty of loyalty for digital identity. The model acts are available for any state to adapt. See Utah.
Who is behind this?
Michael G. Leahy, JD, Maryland's former Secretary of Information Technology and past President of NASCIO. More about the work.