Government interest in artificial intelligence (AI) and automated decision-making (ADM) systems is growing rapidly. This is because AI and ADM have tremendous potential to transform government decision-making and public services. Thousands of government actions – large and small – affect fundamental entitlements including licensing, social benefits, and regulatory investigations. In day-to-day regulatory activity there is little public awareness about the use of AI systems and yet potentially many applications.
Early experience with ADM in these contexts appears to be mixed. On the one hand, ADM has notable potential to improve access to justice and reduce discrimination. For example, these systems can be used to reduce costs, and promote speed, efficiency and consistency in decision-making. Experience also demonstrates the potential for these technologies to be opaque, inexplicable, and discriminatory.
The “digital rights,” legal, and technology communities are increasingly focused on questions regarding the transparency, accountability and impact of these systems. More specifically, questions are being asked about how to ensure these systems are disclosed, how to ensure these systems conform with human rights laws and principles, and how to ensure an effective remedy in the event of a rights violation. These are difficult and complex issues, particularly in light of rapidly changing technology. The law reform options for addressing these issues are neither interchangeable nor trivial. Each option has benefits/drawbacks and the choices are consequential. Critically, there does not appear to be a comprehensive legal framework in Ontario to guide the use of these technologies or their intersection with foundational rights related to due process, administrative fairness, human rights, and justice system transparency.
The Civil AI project highlights the shift these systems introduce to governments, including the potential opportunities for improved efficiency and fairness and the corresponding challenges to individual rights and access to justice. The project looks at key issues such as disclosure, transparency, explainability, discrimination and accuracy, and the existing laws in Ontario, including due process and procedural fairness, privacy law, human rights law, evidence, and civil procedure. The purpose of this project is to showcase the gaps in existing laws in Ontario, start the conversation about how to fill these gaps, and prioritize issue for initial law reform efforts.
Expert Forum – December 2019
As part of this the project, in December 2019 the LCO hosted an invitational forum on automated decision-making in the civil and administrative justice system. The forum was a cross-disciplinary event designed to promote innovative, collaborative and multi-disciplinary analysis and recommendations. The LCO invited more than 30 policy makers, lawyers, jurists, technologists, academics, and community organizers to share experiences, discuss issues, and consider law reform options. We also invited leading US advocates and researchers to help us learn from the American and international experience.
- Kevin DeLiban (Legal Aid Arkansas), Martha Owen (Deats, Durst, Owen & Levy P.L.L.C.), and Christiaan van Veen (Director, Digital Welfare State and Human Rights Project at NYU Law), who shared case studies of AI in administrative decision-making;
- Professor Jennifer Raso (University of Alberta, Faculty of Law) and Raj Anand (Partner at WeirFoulds, former Chief Commissioner of the OHRC), who discussed legal issues that arise from the use of AI and automated decision-making in government decision-making; and,
- Nele Achten (Berkman Klein Center for Internet and Society, Harvard University), Benoit Heshaies (Treasury Board of Canada Secretariat, Government of Canada), Amy Bihari (Ontario Digital Service, Government of Ontario), and Professor Julia Stoyanovich (NYU), who discussed regulatory efforts underway in the area of AI and civil justice.
Forum materials included:
Workshop with Ontario Digital Services
In late 2020, the LCO completed a successful series of workshops in partnership with the Ontario Digital Service (ODS). Amongst its many responsibilities, the ODS is responsible for facilitating the development of AI within the provincial government.
The workshops brought together a wide range of legal, policy, operational and technology experts for a constructive discussion about AI and ADM development within the provincial government. Participants included representatives from several provincial ministries, including transportation, finance, consumer services, treasury, agriculture and the anti-racism directorate of the solicitor general. Participation also included representatives from the federal government, the City of London and several LCO advisory panel members.
The 4-part workshop was designed around four stages of creating an AI system: development and design; implementation; evaluation; and legal challenges. During the workshop, we discussed key themes of disclosure and transparency; bias; public participation; and due process. The workshop was grounded in a hypothetical case study around eligibility for social benefits.
The discussions were a productive collaboration of various viewpoints and expertise, highlighting similarities and gaps in understanding, best practices and potential reforms. The LCO’s report, Legal Issues and Government AI Development, identifies major themes and practical insights to assist governments considering this technology.
Legal Issues and Government AI Development (March 2021)