Photo by Helena Lopes ()

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

Ěý

The Dystopian State of Surveillance in the Workplace

The ongoing pandemic has shaken up of the world of work. With the emergence of COVID-19, distinctions between on-site and remote workers became intuitive and reliance on technology for attuning the workforce to the situation of a pervasive contagion rapidly increased. This has naturally caused worries about the future of labour relations, the , and automation.

While remote work has its , caution must be exercised against hastily treating the situation as liberating. After all, the flexibility and cost-effectiveness associated with remote work did not result from collective bargaining by employees and labour unions, but emerged from a public-health necessity. As Antonio Aloisi and Valerio De Stefano , the result is an asymmetrical distribution of the benefits of digitalization—as evidenced by the technology (more than 58 percent since the beginning of the pandemic). In many firms, working at home has made bare an as workers are often called to download apps that track how long they are away from the computer (), record and send their web-history to their employers (), and take screenshots of their desktops ().

Against Technological Determinism

On the other hand, it is important to dispel any conception of technology that grants it an agency of its own, as if acting as an imposing itself on societal relations, labour markets, and daily tasks. For instance, AI is often said to inevitably replace many jobs performed by humans; self-checkout machines in grocery stores are a common example. While there is some truth to this statement, emphasizing inevitability tends to mask the bigger picture that human decisions—more precisely, those of the tech elite, policy makers, security and military officials, and employers – fundamentally shape technological progress.

As Aloisi and De Stefano emphasize, .” In other words, it matters whether technology and machinery are used and developed for the purposes of extracting profit and cutting down costs, or for the purposes of building trust in work relations and increasing workers’ . For instance, ” may provide the conditions for establishing a four-day workweek, according to a 2018 study by the Social Market Foundation.

Moreover, automation often increases demand for complementary skills. For instance, A human-centered research mandate and policy objective would thereby identify the required complimentary skills borne out of the automation process in order to create jobs and increase wages. As Frank Pasquale, professor at Brooklyn Law School, rhetorically asks: This invokes broader questions, often relegated to the sidelines, . The issue is, of course, political at heart; a worker-affirming answer to such questions depends on structural changes that place workers as powerful stakeholders in the decision-making process that underlies the direction of technological advancement.

The post Concerning But Not Predetermined: A Short Note on Technology and the Future of Work appeared first on IPOsgoode.

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

Ěý

It is now an unfortunate truism that we are all subjects of perpetual surveillance. The legal infrastructure that sustains and enables this Orwellian dystopia is undoubtedly overwhelming and discouraging for those seeking change. But victories are also possible; the two Schrems cases, discussed below, are an example. Yet, these cases also point to the need for a more or less uniform legal order for data governance.

Schrems I

In 2015, Austrian law student and privacy activist, Maximillian Schrems, sued Facebook Ireland for what he alleged to be an . Schrems’ claimed that the U.S. mass-surveillance program renders it unable to provide an of personal data (PD). The EU Data Protection Directive (95/46/EC) imposes this requirement on countries outside of the EU. While Canada passed the in order to meet this requirement, the U.S. negotiated the with the EU; a self-certification scheme that allows U.S. organizations receiving information from the EU to attest that they adhere to EU data and human rights laws.

Schrems challenged the Safe Harbour Agreement, which passed the muster of the European Commission (EC) in . The EC is the executive branch of the EU that, among other things, . However, following Edward Snowden’s , there could be no doubt as to the “generalized basis” by which the US government collects and stores citizens’ data, which the Court of Justice of the European Union (CJEU), Europe’s highest court, found to “.” This decision, which came to be known as Schrems I, ultimately invalidated the Safe Harbour Agreement.

Schrems II

While the initial decision was a victory for Schrems, it later turned out that Facebook was not relying on the Safe Harbour Agreement, but on the ). These clauses, also passed by the EC, .” Compelled to revise his challenge in 2015, Schrems alleged that contractual arrangements in the U.S. legal regime cannot adequately protect PD because, among other things, U.S. law to the U.S. National Security Agency (NSA) and the Federal Bureau of Investigation pursuant to . In the meantime, following the invalidation of the Safe Harbour Agreement, the U.S. and the EU negotiated another self-certification scheme for U.S. companies called the Privacy Shield Agreement, which the EC in 2016.

In the , released in July 2020, the CJEU once again invalidated a EC adequacy decision, this time invalidating the Privacy Shield Agreement because it does not contemplate sufficient avenues for individuals to bring an action against the government for unlawful surveillance. The CJEU ultimately agreed with Schrems that the U.S. legal system, , does not provide “essentially equivalent” protection of data as EU law. Thus, while the CJEU in Schrems II held that SCCs may provide “effective mechanisms” for the protection of transferred PD pursuant to EU law, including the passed in 2018, it also emphasized that SCCs do not bind public authorities of data-receiving countries. In other words, the U.S. government is not a party to SCC contracts between data importers and individuals, leaving its vast surveillance apparatus unrestrained.

Implications of Schrems

Schrems II confirms the CJEU’s stance against mass-surveillance. But while a victory for privacy, the decision also creates a web of uncertainty; for now, s.” This impossibility has raised concerns in the health industry, of which

It is too soon to evaluate the implications of the Schrems II decision, given that the EC just released on June 4, 2021. provisions into standardized contracts for the international transfer of data. With the invalidation of both the Safe Harbour Agreement and the Privacy Shield Agreement, we are left with the discrepancy between rigorous data protection laws in one jurisdiction (i.e., the EU), and a lax legal order with respect to surveillance in the other: an incoordination that significantly withholds the benefits associated with international data flow.

The post The Current State of Cross-Border Data-Transfers appeared first on IPOsgoode.

Photo Credit: Ashley Moniz

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

Ěý

On June 28, 2021, IP Osgoode hosted a panel discussion in their Bracing for Impact Webinar Series titled AI’s Dirty Footprint. Organized in collaboration with the Harry Radzyner Law School at IDC Herzliya in Israel, Microsoft Canada, and Alectra's GRE&T Centre, the central question of this webinar was: in what way can we use artificial intelligence (AI) to ensure that the negative impacts of its energy consumption do not exceed its beneficial effects for environmental sustainability?

IP Osgoode’s own Professor Giuseppina (Pina) D’Agostino opened the panel by setting the stage for the discussion and introducing the speakers.Ěý

In his opening remarks, Dr. Amir Asif, Vice President of Research and Innovation at 91ŃÇÉ«, noted that AI remains a “key strategic area” for research at 91ŃÇÉ«. Emphasizing the need for an interdisciplinary approach, Dr. Asif also stated that exploring AI’s ethical and legal implications will require collaboration between researchers in the AI community, social sciences, and the humanities.

Indeed, “collaboration” was one common thread among all the speakers. In his first formal address since he took office, the Hon. David Piccini—Ontario Minister of the Environment, Conservation and Parks—turned not only to universities for ideas in using AI to improve the climate situation, but also to youth as part of the government’s broader environmental policy plan. The youth, he noted, must be “unapologetically engaged”. Given the , the Minister’s words are welcome if they signal any change.

The panel then proceeded to a discussion moderated by Dr. Aviv Gaon, professor at IDC Herzliya. In his introduction, Gaon brought attention to that outlines 17 internationally-agreed-upon sustainable development goals for 2030, spread across 169 targets. With respect to the environment, the study shows that AI’s potential to enable the environmental targets of these 17 goals outweighs its inhibitory effects.

The first panelist was Andrea Roszell, Director of Energy, Sustainability and Infrastructure at Guidehouse. Her discussion was centred on AI’s capabilities to increase efficiency in the energy and utility sector. In particular, she pointed to the “energy cloud”, a concept developed at Guidehouse that moves away from a “one-way flow” of power from energy centers to consumers, to a more networked, interconnected “multi-flow” dynamic. This requires an infrastructure—a neural grid—that utilizes artificial intelligence in technology, such as sensors software and monitoring systems, to create large “data sets” for utilities to access. Despite requiring increased energy consumption, Roszell stated that these data sets are a net benefit to the environment due to the new efficiency gained in management of greenhouse gases and predictive maintenance models that ultimately lead to a more sustainable and reliant energy infrastructure.

The second panelist was Dr. Audrey Lee, Senior Director of Energy Strategy at Microsoft. She started by pointing to Among other goals, Dr. Lee highlighted Microsoft’s plan to offset all of its electricity usage with renewable energy by 2025 and to be carbon negative by 2050. Lee noted, however, that the first step in achieving any such goal is to establish a proficient “measurement infrastructure” that can enable us to quantify our environmental footprint with sufficient precision—for example, data analytics that detail how and to what extent a particular utility uses electricity at each hour.

The panel then continued to its third speaker, Kapil Singhal, Co-Founder & CEO of Vyntelligence. At the very outset of his discussion, he too emphasized the need for collaboration. In particular, Singhal noted how Vyntelligence has made possible a new form collaboration between artificial intelligence and human brain power. Utilizing short videos of workflow in the field, artificial intelligence can augment workers’ awareness of a given project by revealing further areas of risk and benefit. This, when combined with human cognitive and decision-making power (which Singhal noted far exceeds what AI can learn), will yield more efficient outcomes. One such outcome is enhancing the infrastructure that allows for remote work (the importance of which is vividly felt in times of COVID-19), reducing thereby the carbon footprint of work-related travel.Ěý

Finally, the panel featured Neetika Sathe, Vice President of the GRE&T Centre at Alectra Inc. First, she noted that as more and more people gain access to the internet, global energy consumption is bound to increase. Thus, she emphasized the need for international collaboration beyond local efforts. She further mentioned that about half of the energy used at datacentres is used to cool their servers, which brings attention to the need for more efficient infrastructures.

In closing, it is important to address that, as the panelists mentioned, data centres account for only 1-2% of global energy consumption. However, as I mentioned in , AI’s “dirty footprint” is not confined to the energy it consumes, but extends to its ability to offer services for resource extraction which, for example, is enabled by the connection and collaboration between the tech and fossil fuel industries. Any meaningful policy directed at reducing AI’s negative environmental impacts must also account for this broader perspective.

A link to watch a recording of the event can be found on IP Osgoode's page.

The post IP Osgoode tackles AI and the Environment in "Bracing for Impact" Webinar appeared first on IPOsgoode.

Photo Credit: Adib Hussain on Unsplash (edited by Ashley Moniz)

Photo Credit: Adib Hussain on .

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

Ěý

The ever-growing reliance on artificial intelligence (AI) in our everyday life and industry is an undisputable condition of our time. Whether we speak of gaming, speech and facial recognition, smartphones, medical research, agriculture, trading and investment, cybersecurity, or resource extraction (and of course, much more)—few, if any, sectors fall outside the purview of AI. As with any emerging technology, as to whether AI is a “net good” are abundant. This brief article focuses on this issue with respect to AI’s environmental impact.

For starters, it is important to acknowledge AI’s potential in combatting climate change. Among other things, lead to better climate predictions, create virtual simulations that demonstrate what a given area would look like after the impacts of climate change, and help track the source of carbon emissions for regulation purposes.

On the other hand, AI requires infrastructure that consumes a great deal of energy. study conducted at the University of Massachusetts Amherst shed light on the enormous scale of this consumption: the energy required to train a single natural language processing (NLP) model leaves a carbon footprint of roughly 300,000 kg— (for a fascinating map on the human and environmental costs of AI, see ). Of more concern, “.” But what contributes to this increasing energy-intensive dynamic? Consider the following two points .

First, some researchers and academics have raised concerns about the AI community’s hyper-focus on their models’ accuracy and which come at the expense of cost and energy-efficiency considerations. Accordingly, calls are being made to research “ Ěýthat not only incorporates the energy consumption levels of a given AI model in its evaluative criteria, but also factors in the renewability of energy-sources and the extent to which a given model’s research results can be reproduced for future research.

Second, a 2020 , illustrates the close connection between tech and fossil-fuel industries. For instance, while Microsoft has vowed to become “carbon negative” by 2030 in order to counteract its contribution to environmental damage, it also offers AI capabilities to oil and gas companies such as ExxonMobil “in all phases of oil production.” Microsoft is not alone in signing these kinds of lucrative contracts; it’s joined by companies such as Amazon and Google. This casts huge doubt on the achievability and commitment of tech firms’ own climate goals. As was the case when , it is important for both civil society and insiders in the tech industry to pressure corporate executives to stop assisting the extractive activities of the fossil fuel industry and be more aggressive in reducing their own carbon footprints.

It is important to mention that the success of initiatives aiming to reduce the negative impacts of AI depend on the , both domestically and internationally. In this regard, I end with a hopeful starting point: Germany’s supreme constitutional court’s historic ruling in April 2021 that rendered the government’s climate goal to achieve carbon neutrality by 2050 as . The Court found that the government’s policy simply does not go far enough in protecting future generations from the catastrophes of climate change. As a result, the German government is in the process of bringing forward a —which undoubtedly bears regulatory implications for the tech industry.

To learn more about the relationship between artificial intelligence and the environment, check out next week’s , hosted by IP Osgoode and featuring a panel of leaders in the fields of AI and sustainability.

The post The Environmental Impact of Artificial Intelligence: The Tech-Fossil Fuel Connection appeared first on IPOsgoode.

AliĚýMesbahianĚýis anĚýIPilogueĚýWriter and a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

Ěý

Thanks to deepfakes, it is becoming increasingly difficult to tell whether a video is real or not. Deepfakes are machine learning processes that video and audio recordings using the images and sounds belonging to individuals not present in the original recordings in order to produce . As the technology behind deepfakes further develops, it becomes . What results is the widespread use of deepfakes for nefarious purposes, such as pornography ( of its use according to a 2019 inquiry), and influencing elections. The rapid development of deepfakes also threatens to influence our understanding of the world. What if we reach a point where it is impossible for a layperson to be certain of the veracity of a video in which someone is saying or doing something controversial? Politicians can then exploit the doubts that fill our perception to avoid accountability when real scandals arise. Danielle Citron and Bobby Chesney, law professors at the University of Virginia and the University of Texas respectively, call this the “liar’s dividend”. Because we are aware that deepfakes enable anyone to say or do anything in a video or audio recording, we lose trust in our eyes and ears, allowing accurate information to be veiled as “” in unprecedented ways.

Legal Responses to Deepfakes

Currently, that explicitly criminalizes abusing deepfakes. While remedies grounded in copyright infringement, defamation, and violations of privacy and impersonation in elections may cover deepfakes, we require a uniform and direct effort to combat their nefarious use. As Citron explains, a coordinated international response is necessary given how easily accessible falsified videos are from different parts of the world. We must also address this issue cautiously. As Chesney notes, granting the government regulatory authority to determine what is or isn’t true tends “”. In other words, the concern is that undue censorship may arise in the name of protecting the accuracy of information.

The recently proposed includes privacy provisions that may directly impact the regulation of deepfakes. Despite invoking the Charter, the Act “”. As Emily Laidlaw, law professor at the University of Calgary, explains, while the Act invokes human rights language, it is essentially framed as a , making corporations and tech platforms responsible for ensuring the privacy interest of their users and liable in case of a breach. Therefore, if the proposed framework is used to regulate deepfakes, we may return to the problem that I mentioned in my : outsourcing our fundamental rights to corporations and expanding corporate power as opposed to limiting it.

The post What to do when Anything is Possible: A Brief Note on the Problems Surrounding the Regulation of Deepfakes appeared first on IPOsgoode.

AliĚýMesbahianĚýis anĚýIPilogueĚýWriter and a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

Ěý

As part of a recent effort to modernize the Canadian data and telecommunications legal landscape, the federal government proposed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (“Bill”). In a nutshell, the Act provides the (“CRTC”) new powers to regulate the internet. ”, the Bill proposes to expand the scope of “ to include online broadcasters such as (as part of new “online undertakings”), and impose regulations requiring these platforms to pay for Canadian content they air. Non-compliance will lead to large fines.

The Bill has legitimate objectives; Canadian creators (of music, movies, series, documentaries, etc.) ought to be adequately compensated for enabling streaming services to generate profits using their content; however, the surrounding the Bill signifies that its impact on civil liberties are just as important.

The Controversy

Essentially, the Bill seeks to “” by allowing the CRTC to subject online undertakings to similar regulations to traditional broadcasters. The glaring question for civil liberties advocates was whether user-generated content (i.e., media uploaded to Facebook, TikTok, YouTube, etc.) qualifies as an “online undertaking” under the Bill. If it did, this could imply the government has the power to oversee and regulate anything, from your online political expression to pictures of your cat.

In its initial form in November 2020, : “the Act does not apply in respect of programs uploaded by unaffiliated users to social media services for sharing with other users.” Yet by April 2021, the government unexpectedly revoked this exemption. ensued from the public, academics, The Canadian Civil Liberties Association (“CCLA”), and parties from across the political spectrum, compelling the government to once again change its position. In response, Canadian Heritage Minister Steven Guilbeault announced that upcoming amendments would make it that the Bill will not target user-generated content.

But according to Michael Geist, a Canadian law professor in Internet and e-commerce law, the proposed amendments will only make the Bill . While they limit the CRTC’s regulatory power, the amendments do not restore the original exemption. Moreover, the amendments add a new section specifically on the regulation of social media. The government therefore seems adamant to extend its regulatory reach to social media.

Implications for Freedom of Expression

The federal government’s refusal to restore the exemption may be understood in light of their broader effort to adapt to the realities and technological advancements of the information economy. Specifically, one of their goals is to combat . These extremely necessary and urgent objectives require a robust, evidence-based policy framework that systematically addresses numerous factors related to the technological infrastructure that gives rise to these problems. There are three main considerations.

First, as Geist points out, freedom of expression also entails the freedom “,” meaning that we ought to demand transparency from Big Tech with respect to the algorithms through which content travels to other users. As Yale law professor Amy Kapczynski highlights, a broader policy analysis in such cases would include paying attention to intellectual property and trade secrecy laws that from disclosing their algorithmic models.

Second, it is unclear what criteria will be used to judge what content is “Canadian”. Such absence entails regulatory discretion¾a slippery slope that may prove problematic. As warned by Cara Zwibel, director of the Fundamental Freedoms Program of the CCLA, the concern is less about what the government will currently do with these new powers and more about the ” this Bill opens in the future. With little guidance on regulatory criteria, “Canadian content” seems highly malleable. To implement regulations without explaining how to interpret them tends to grant the government sweeping powers that may detriment online expression.

Third, it is important to learn from the problems faced by other jurisdictions that implemented similar provisions, such as Germany and Australia. Their experience shows that corporations faced with regulatory requirements tend to by broadly taking down any content that may be construed to contravene applicable legislation, in order to avoid hefty fines. Especially with the new amendments in Bill C-10 providing specifically for the regulation of social media, we must stop and ponder if it is a good idea to outsource freedom of expression to Big Tech.Ěý

If the controversy around Bill C-10 points to one thing, it is that complex social problems require solutions that empower civil society, not ones that grant the government blanket regulatory authority.

The post Does Bill C-10 Target Big Tech or Civil Liberties? appeared first on IPOsgoode.