Digital Rights

 

The LCO’s strategic priorities for 2017—2020 mandate the organization to give priority consideration to technology law reform issues. The influence of technology is pervasive; it is spreading to new areas of the private and public sectors, shaping lives like never before, and raising serious questions about access to justice. Today there are computer algorithms that adjudicate criminal sentencing and bail conditions; private “gig economy” platforms that decide who works and who doesn’t; and “smart cities” built with sensors in public spaces. From these and other examples the LCO has begun to identify specific areas where there is evident need for sophisticated, thoughtful legal analysis in the Ontario context.

This project is partially funded by the Law Foundation of Ontario Justice and Technology Grant.

What kinds of “digital rights” are arising?

There is no single definition of “digital rights.” Digital rights include topics as diverse as digital inclusion and access; a digital bill of rights; rights in a smart city; “digital due process;” regulatory sandboxing; social scoring and algorithmic black boxing; digital democracy; new frameworks for informed online consent; and more. These are important, timely, and controversial issues. Our goal is to better understand these issues and to help shape a digital rights agenda for Ontario and beyond. As with all LCO projects, we undertake research and conduct public consultations to better identify and recommend law reforms that are concrete, precise, and responsive to the access to justice and equality rights of Ontarians. To accomplish this, we accept three important things as starting points:

• Technology has created a significant new frontier for access to justice. This is not to say that access to justice has otherwise been addressed – far from it. But technology raises new and crucial questions rooted in fundamental due process: how do you know when an algorithm has been involved in determining an application for a job, social entitlements, or is adjudicating your legal claim? Can an algorithm explain the decision it has rendered, and should it be required to? How do you cross-examine an algorithmic decision maker?
• Technology stakeholders are different. Technology platforms and products shape behaviour, filter information, automate activities, and set terms and conditions for use. They are unique in actively being able to incorporate access to justice in the everyday where it matters most to people, be that in the public or private sphere. Technological stakeholders may thus have a much different and much more active role to play in law reform initiatives.
• New digital rights will find innovation in existing legal principles. There is considerable need for the legal imagination to connect new digital rights to the array of potential legal approaches. For example, what if the focus of privacy law shifted from individual consent to collective consumer rights? Could protections from discrimination guaranteed under Ontario’s Human Rights Code be incorporated directly into an algorithm, and this ensure structural compliance?

This project is the civil justice system equivalent to the LCO’s AI and Criminal Justice System project.  This project considers the use of AI and algorithms in regulatory investigations, government benefit determinations, and to support decision-making in the civil and administrative justice systems.  As part of this the project, in December 2019 the LCO will host an invitational forum on automated decision-making in the civil and administrative justice system. The forum is a cross-disciplinary event designed to promote innovative, collaborative and multi-disciplinary analysis and recommendations.  The LCO has invited more than 30 policy makers, lawyers, jurists, technologists, academics, and community organizers to share experiences, discuss issues, and consider law reform options.  We are also inviting leading US advocates and researchers to help us learn from the American and international experience. 

Presenters include:

• 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 will share 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 will discuss 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 will discuss regulatory efforts underway in the area of AI and civil justice

Following the forum, the LCO will produce and distribute an event report and supporting materials.

This project considers how to better protect consumers in Canada’s “digital marketplace.”  The LCO is partnering with the Centre for Law, Technology and Society at the Faculty of Law, University of Ottawa to make recommendations to consumer protection legislation to address online “terms of service” and “click consent” contracts. Coming soon: check back for updates, or sign up using the box above to get on our mailing list!

AI and algorithms are increasingly being used to support police and judicial decision-making in criminal justice systems across the world.  The use of these systems is controversial and raises significant access to justice, human rights and due process issues.  In March 2019, the LCO partnered with Citizen Lab, IHRP, and the Criminal Lawyers Association to host Canada’s first multidisciplinary forum addressing predictive policing, citizen profiling, and automated bail and sentencing. Check back soon for our report on this topic, or sign up using the box above to get on our mailing list!

In June 2019, the LCO presented a paper, AI and Automated Decision-Making: lmpact on Access to Justice and Legal Aid, to the 2019 International Legal Aid Group global conference.  The paper discussed the impact of technology on access to justice for low-income communities and presented ideas for how legal aid plans plan can respond. 

In May 2019, the LCO partnered with Element AI and Osgoode Hall Law School to present “AI for Lawyers:  A Primer on Artificial Intelligence in Ontario’s Legal System“. This symposium explored how automated decision-making and artificial intelligence are changing the practice of law, litigation, and legal regulation in Ontario’s justice system.  Speakers included Carole Piovesan, Richard Zuroff, and Jill Presser.

In November 2018, the LCO convened a roundtable of subject-matter experts on how best to scope and sequence the LCO’s digital rights law reform projects spanning automated decision-making, consumer protection, and precarious work.

In March 2018, the LCO partnered with the Mozilla Foundation to bring together policy makers, legal scholars, lawyers, technologists, academics and community organizers to discuss a digital rights agenda for Ontario and beyond.

A report on the findings of this event is available here. Among the priority themes identified were:

• transparency and accountability for artificial intelligence and algorithms automatically filter content, price goods, determine eligibility for bail, and make medical recommendations,
• questions about how digital consumer rights can strike a better balance beyond the choice to either opt-in or miss-out, and
• modernizing employment and labour rights for the increasing proportion of Ontarians making a living in the “gig economy” of contingent and precarious work.

• November 2018: The LCO convened a roundtable to elicit the advice of over a dozen subject-matter experts on how best to scope and sequence a series of digital rights law reform projects spanning automated decision-making, consumer protections, and precarious work.
• May 2018: The LCO partners with the Mozilla Foundation to host a Roundtable on Digital Rights and Digital Society that brought together a dozen key policy makers, legal scholars, lawyers, technologists, academics and community organizers to discuss a digital rights agenda for Ontario and beyond.
• May 2018: The LCO hosts an International Conference on Defamation Law in the Age of the Internet, cited by one participant as among the most comprehensive analysis of a defamation law framework to date, anywhere in the world.
• May 2018: The LCO hosts a panel presentation at RightsCon, Canada’s largest conference on digital rights and digital society, discussing Reforming Intermediary Responsibility: Testing a Human Rights Centred Framework Beyond the Liability and Immunity Divide 
• September 2017: The LCO’s Class Actions Project received funding from the Department of Justice to establish a public, online, open data catalogue of class action cases and information. This is the first of its kind in Canada and will support ongoing access to justice and law reform research across the country.
• April 2016: The LCO partners with Legal Aid Ontario to host an Open Data, Open Government Symposium, looking at concrete issues of transparency, accountability, and “big data” for government, courts, and tribunals in Ontario.

Windsor Law: Artificial Intelligence and the Justice System

Law Times: ‘Ethical’ artificial intelligence no silver bullet to due process issues, says panel

Toronto Star: Soon, intelligent machines could help decide whether to keep people in jail. It’s time to prepare.

The Lawyer’s Daily: Challenges in litigating AI, focus on transparency, highlighted at LCO event

Law Times: Human rights concerns about AI hit lawyers in immigration, criminal law and trusts

The Globe And Mail: Canada lacks laws to tackle major problems posed by artificial intelligence, experts warn

Slaw.ca: Algorithms and Justice

Advocate Daily: Decoding automated decision-making in the justice system

Sossin Blog: The Algorithm of Justice? Fairness and Digital Rights