Photo by Jimmy Jin ()

Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

��

In August, Apple made headlines by . These new features are purported to expand protections for children through modified communication tools, on-device algorithm learning within , , and , and Search . Although protecting children as a vulnerable group should be of utmost importance to all, many security experts find some of these proposed changes troubling as they may undermine the company’s longstanding reputation in privacy preservation and enable future security .

Over the years, Apple has cultivated a strong reputation as a One of their core values and s is that After all, their security and privacy designs are so powerful that Apple allegedly can’t access encrypted user data—. In 2015, Apple CEO Tim Cook that while issues such as national security are important, Apple would not implement any technology which malicious actors could misuse as a backdoor to encrypted user data. Now, in 2021, Apple’s ironclad encrypted system has one exception.

As one of the changes, Apple intends to introduce photo-scanning technology for all users to identify any Child Sexual Abuse Material (CSAM). This well-intentioned technology is already widely used online to identify known explicit materials, including terrorist propaganda and other violent content. Some consumers worry that all their private images will be scanned in search of illegal content; however, Apple is not proposing that. The technology scans for the “” of a file and matches it to a known hash. If a certain threshold of known CSAM is found, barring false positives, then law enforcement is contacted. Strangely enough, Apple has noted that users can opt to disable photo uploads to iCloud, expressing that CSAM is only identified within their servers, and not on users’ devices. Some experts interpret this as

Some security experts expressed strong s over modified communication tools for children. Apple alleges that device software will detect any explicit content (not hashes) within a minor’s Messages conversations—a feature that can be turned on or off by a guardian. This will alert a parent if their minor has received any image that is flagged as explicit. This seems appropriate to allow some supervision to protect vulnerable children from online predators; however, the algorithms currently used to detect explicit images are . It is widely known that benevolent, non-sexual content, particularly , is consistently To add to this, child advocates worry about the possibility of minors in abusive households being monitored by such a faulty and algorithm.

Though is not a new concept, these changes will suddenly affect billions of consumers. It’s been reported that when a child, like any other user, experiences negative behaviour online, they . However, there is currently no way to report messages within Apple’s Messages application. . After causing a tremendous stir in both the privacy and child advocacy communities, Apple that Messages scanning would only apply to those under 13, not teenagers, and have attempted to offer limited clarity on the new technologies.

Despite the changes, . Children need to be protected and prioritized in terms of technology experience, but their privacy matters too. It will be interesting to see the roll-out of Apple’s polarizing changes, particularly how they will affect Apple’s reputation and ecosystem security and if Apple will introduce any more changes moving forward as it responds to community concerns.

The post Privacy Plight: Apple’s Proposed Changes & Consumer Pushback appeared first on IPOsgoode.

Photo by (

Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

��

is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

The post Copyright Confusion: Sony Upsetting Nintendo YouTubers appeared first on IPOsgoode.

Photo Credit: ()

Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

��

(FRT) is an increasingly popular and controversial tool used by public authorities and commercial institutions. FRT increases surveillance methods for investigative or security work. FRT easily collects vast quantities of biometric information with minimal cost or effort. Sensitive identity-based data is particularly valuable.

These databases and data collection methods are not without risk. Reports of and Canadian privacy law violations weaken the argument for implementing FRT. On June 10, 2021, issued a on FRT and -related surveillance as it pertains to the Canadian public. The special report specifically investigates the RCMP’s use of Clearview AI (with FRT), pursuant to section .

What is Clearview?

(“Clearview”) is an American-based entity that has amassed a wide catalogue of facial images with associated location information. Users with Clearview accounts can access the images for matching purposes. In October 2019, the RCMP confirmed that it . The OPC subsequently received a complaint under the . Clearview also has their

Canadian Legislation

The OPC investigation and report engages the Privacy Act, specifically : “No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.”

Further, applies to “private-sector organizations across Canada that collect, use or disclose personal information in the course of a .” Commercial activity is defined by law as “any particular transaction, act, or conduct, or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.”

, , and have their own privacy laws that may apply instead of PIPEDA. Most organizations within these provinces rely on provincial privacy laws, except for “,” or “ (FWUBs) such as banks, telecommunications and transportation companies,” .

2020 Investigation into Clearview

On February 21, 2020, the OPC, along with privacy authorities in , , and (“the Offices”), began investigating Clearview, their FRT database, and database disclosures pursuant to . Clearview’s collection practice was found to contravene privacy laws in all investigating jurisdictions. This investigation provided much of the backdrop for the subsequent RCMP investigation. As outlined in the , the Offices set out to identify whether Clearview:

1. “obtained requisite consent to collect, use and disclose personal information; and
2. collected, used and disclosed personal information for an appropriate purpose.”

The Commission d'accès à l'information (CAI) also sought to determine if Clearview had:

• “reported the creation of a database of biometric characteristics or measurements.”

The OPC’s February 2021 report of Clearview’s facial recognition tool identified .

“C���𲹰��������:

1. “scrapes” images of faces and associated data from publicly accessible online sources (including social media), and stores that information in its database;
2. creates biometric identifiers in the form of numerical representations for each image;

• allows users to upload an image, which is then assessed against those biometric identifiers and matched to images in its database; and

1. provides a list of results, containing all matching images and metadata. If a user clicks on any of these results, they are directed to the original source page of the image.”

The OPC found that Clearview’s database contains over , including pictures of Canadian faces (including children) collected without their knowledge or consent. Clearview allows law authorities and commercial entities to match people to online images within their database. The OPC found that the large image database “The OPC stated that police authorities can “essentially” subject billions of people ��to a non-consensual .

The OPC concluded that Clearview’s operations harm Canadians as they may detriment individuals whose photos are used without their explicit and informed consent. The method in which images were scraped from web pages was also found to be “”, among other Clearview activities.

The OPC provided three recommendations for Clearview to better comply with federal and provincial privacy laws: cease offering its facial recognition tool to clients in Canada; (ii) cease the collection, use and disclosure of images and biometric facial arrays collected from individuals in Canada; and (iii) delete images and biometric facial arrays collected from individuals in Canada in its possession.”

, noting that they had withdrawn from Canada during the investigation, and did not commit to the recommendations. Clearview also suggested that the OPC should suspend the investigation and not publish the report.

RCMP Investigation in the Special Report:

As Clearview was clearly found to contravene privacy laws, the RCMP’s use of Clearview technology was also the Privacy Act’s collection policies.

Curiously, ; that was false and concerned the OPC. According to , the RCMP made hundreds of search requests through the database on at least 19 accounts. The OPC assessed the RCMP’s They found that the RCMP failed to properly ensure that their use of Clearview technology complied with the Privacy Act. Further, the RCMP did not report any system implemented to “ Clearview’s data. This represented a serious lack of care regarding the sensitive information collected. Ultimately, the OPC recommended “ within a year to handle (any) novel collections of data.

The RCMP that they violated section 4 of the Privacy Act. In fact, they argued that under the Act, they do not have a duty to ensure legal compliance of private third parties like Clearview. However, they did agree to OPC’s recommendations in an effort to improve operations.

Soon after the OPC launched their RCMP investigation, the RCMP internally worked to some of the issues. They restricted their use of Clearview and started the “National Technology Onboarding Program” to look into how novel investigative techniques comply with the Privacy Act and the . As of July 2020, Clearview stopped offering its services to Canada, and the RCMP stopped using it altogether.

In light of this , the OPC published the “” (“the Draft”) to provide provincial, regional, federal, and municipal police agencies with more detailed privacy compliance information. The guide offers a with various related guidance, and data management related to , , , , , and more.

The OPC also offers up-to-date information on the accuracy of FRT and algorithms, emphasizing the . In the same way, the guide underlines “.” In other words, agencies should only collect and retain what is necessary, rather than cast a wide net. The is a rather thorough document with many references to specific case law and related authority. It demonstrates the importance of privacy in Canadian society and the seriousness in which Canadian officials deal with consent, surveillance, and novel technology. FRT may evolve into a useful tool, but until it meets the recommendations of the OPC, the RCMP will need some constructive and careful effort to use FRT again.

The post A 24/7 Police Line-up: Clearview AI, the RCMP, and Privacy Laws appeared first on IPOsgoode.

Impartiality is often associated with a neutral, impersonal point of view, or an observer that is hypothetically free of subjective biases. The earliest proponents of these views were David Hume () and Adam Smith (). One dimension of impartiality is the concept of being impersonal, meaning dispassionate or indifferent. For instance, the good judge is impartial insofar as they are not swayed by emotions and do not factor in personal considerations. An angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music.

Another related concept held up as a virtue for a judge is “neutrality.” (with the help of ) can help us understand neutrality by the distinction between the concepts of agent-relative and agent-neutral. The basic idea is that a reason for action is agent-relative if it makes some essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if I delivered a harsher sentence because the defendant angered me (since my anger is a reason for me but nobody else). In this case, acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. The relationship between neutrality and impartiality is that neutrality is a necessary condition to impartiality, but neutrality on its own denotes a narrower idea of non-specificity.

Algorithms can be perfectly neutral because they are not subject to emotions or other physiological limits. suggests that algorithms can be used for sentencing in order to combat concerns of judicial arbitrariness and bias.�� The results could lead to greater justice by getting a bit closer to the ideal of proportionality in sentencing. That is, even if the algorithm is not perfect, it would do better than judges, especially with respect to racial bias. attempted something like this in the 1970s and 1980s, and it largely failed because judges trusted their own judicial discretion and intuitions over these algorithms.�� While there are legitimate concerns with introducing novel technologies, technophobia should not be an impediment to a more just legal system.

Still, the concerns related to taking the human element out of judgments have some substance. Leaving aside issues around implementation, one may wonder how impartial reasoning squares with . For instance, in morality, impartial reasoning is not always appropriate. In 1793, William Godwin imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. From an impartial standpoint, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, the choice would be the archbishop. This may seem like a morally repugnant result. Indeed, feminist ethics teaches us about the importance of and in morality.

While there are a number of issues around implementing algorithms to assist the judiciary, there is clear potential for addressing access to justice issues. For example, predictable sentencing outcomes could level the playing field in negotiations between the Crown and the accused, increase efficiency for judges, and assist lawyers in building a case. is already involved in “AI-powered platforms accurately predict court outcomes and enable you to find relevant cases faster than ever before.” With already beginning at the Supreme Court of Canada, I am optimistic about the next steps in operationalizing legal technology.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

The post Algorithms, Impartiality, and Judicial Discretion appeared first on IPOsgoode.