Privacy Law Commons^™

Slouching Toward Regulation: Assessing Bill 88 As A Solution For Workplace Surveillance Harms, Danielle E. Thompson, Adam Molnar

Canadian Journal of Law and Technology

Employee monitoring applications (‘‘EMAs”) are proliferating in Canada and provide employers with sophisticated surveillance tools for the monitoring of workers (e.g., on-device video surveillance, browser activity, and email monitoring). In response to concerns about these increasingly invasive surveillance practices, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022, which requires all employers with 25 or more workers to have a written policy stating whether and how they electronically monitor their employees. Bill 88 marks a more explict attempt to regulate workplace surveillance in a modern digital context in Canada; however; however, an analysis of the Bill’s …

When Your Boss Is An Algorithm: Preserving Canadian Employment Standards In The Digital Economy, Fife Ogunde

Canadian Journal of Law and Technology

The platform or ‘‘gig” economy is a rapidly growing economy in Canada. Between 2005 and 2016, the share of gig workers among all workers in Canada rose from 5.5% to 8.2%. These include independent contractors, select freelancers and platform workers. In 2018, 28% of Canadians aged 18 and older reported making money through online platforms. Research by Payments Canada in 2021 showed gig workers as representing more than one in 10 Canadian adults with more than one in three Canadian businesses employing gig workers. As the share of platform workers in the economy has grown, so has the discussion regarding …

The Need For Cyber Resilience Of Space Assets: Law And Policy Considerations Of Ensuring Cybersecurity In Outer Space, Daniella Febbraro

Canadian Journal of Law and Technology

In 2018, NASA’s Jet Propulsion Laboratory was the subject of a data breach where over 500 megabytes of data from a major mission system was stolen by hackers. This attack affected NASA’s Deep Space Network, prompting the United States Johnson Space Center to disconnect the International Space Station from the affected gateway due to fears that mission systems could become compromised. NASA has acknowledged that its vast online presence, which includes thousands of publicly accessible datasets, offers a large potential target for cybercriminals. The 2018 incident was one of many, with NASA experiencing more than 6000 cyberattacks from 2017-2021 alone. …

Opaque Notification: A Country-By-Country Review, Lauren Mantel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Femtechnodystopia, Leah R. Fowler, Michael Ulrich

Faculty Scholarship

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 1), Jay Conrad

Seattle Journal of Technology, Environmental, & Innovation Law

A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 1) is the first of a two-part series dealing with an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 details the current tactics and impacts of Internet shutdowns and which human rights are most likely to be violated by or during a shutdown. Part 2 will address the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this …

Aclu V. Clearview Ai, Inc.,, Isra Ahmed

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Extended Privacy For Extended Reality: Xr Technology Has 99 Problems And Privacy Is Several Of Them, Suchismita Pahi, Calli Schroeder

Notre Dame Journal on Emerging Technologies

Americans are rapidly adopting innovative technologies which are pushing the frontiers of reality. But, when they look at how their privacy is protected within the new extended reality (XR), they will find that U.S. privacy laws fall short. The privacy risks inherent in XR are inadequately addressed by current U.S. data privacy laws or courtcreated frameworks that purport to protect the constitutional right to be free from unreasonable searches. Many scholars, including Ryan Calo, Danielle Citron, Sherry Colb, Margaret Hu, Orin Kerr, Kirsten Martin, Paul Ohm, Daniel Solove, Rebecca Wexler, Shoshana Zuboff, and others, have highlighted the gaps in U.S. …

Do Not Touch My Data: Exploring A Disclosure-Based Framework To Address Data Access, Francis Morency

Washington and Lee Journal of Civil Rights and Social Justice

Companies have too much control over people’s information. In the data marketplace, companies package and sell individuals’ data, and these individuals have little to no bargaining power over the process. Companies may freely buy and sell people’s data in the private sector for targeted marketing and behavior manipulation. In the justice system, an unchecked data marketplace leaves black and brown communities vulnerable to serious data access issues caused by predictive sentencing, for example. Risk assessment algorithms in predictive sentencing rely on data on individuals and run all relevant data points to provide the likelihood that a defendant will recidivate low …

Law Informs Code: A Legal Informatics Approach To Aligning Artificial Intelligence With Humans, John J. Nay

Northwestern Journal of Technology and Intellectual Property

Artificial Intelligence (AI) capabilities are rapidly advancing. Highly capable AI could cause radically different futures depending on how it is developed and deployed. We are unable to specify human goals and societal values in a way that reliably directs AI behavior. Specifying the desirability (value) of AI taking a particular action in a particular state of the world is unwieldy beyond a very limited set of state-action-values. The purpose of machine learning is to train on a subset of states and have the resulting agent generalize an ability to choose high value actions in unencountered circumstances. Inevitably, the function ascribing …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Internet-of-Things (IoT) devices are ubiquitous, but little attention has been paid to how they may incorporate dark patterns despite consumer protections and privacy concerns arising from their unique access to intimate spaces and always-on capabilities. This paper conducts a systematic investigation of dark patterns in 57 popular, diverse smart home devices. We update manual interaction and annotation methods for the IoT context, then analyze dark pattern frequency across device types, manufacturers, and interaction modalities. We find that dark patterns are pervasive in IoT experiences, but manifest in diverse ways across device traits. Speakers, doorbells, and camera devices contain the most …

Comment: The United Nations And Robot Rights, Heather Alexander

Canadian Journal of Law and Technology

This comment predicts that robot rights under the law are likely to become a reality in the next fifty years, possibly in multiple countries, as governments pass laws granting rights to robots, including civil rights like voting. This comment calls on the United Nations (‘‘UN”) to be pro-active in guiding the emergence of robot rights by convening a working group on robot rights to better guide member states through what will be a time of momentous change.

Why are robots likely to soon gain rights in some UN member states? There have been huge advances in AI that can pass …

Regulating Uncertain States: A Risk-Based Policy Agenda For Quantum Technologies, Tina Dekker, Florian Martin-Bariteau

Canadian Journal of Law and Technology

Many countries are taking a national approach to developing quantum strategies with a strong focus on innovation. However, societal, ethical, legal, and policy considerations should not be an afterthought that is pushed aside by the drive for innovation. A responsible, global approach to quantum technologies that considers the legal, ethical, and societal dimensions of quantum technologies is necessary to avoid exacerbating existing global inequalities. Quantum technologies are expected to disrupt other transformative technologies whose legal landscape is still under development (e.g., artificial intelligence [‘‘AI”], blockchain, etc.). The shortcomings of global policies regarding AI and the digital context teach lessons that …

Crowdsourcing Justice, Matthew Dylag

Canadian Journal of Law and Technology

Social media has become ubiquitous in the daily lives of Canadians. Beyond connecting with friends and family, people also turn to social media to find information and seek advice on any number of topics, be it home cooking, workout routines, or automobile purchases. Indeed, social media is a flexible vehicle that can be leveraged for communication on almost any topic. It is not surprising, therefore, that individuals are also turning to social media to help resolve their legal problems. Even a cursory examination of social media will reveal that it is not uncommon for individuals who are experiencing legal difficulties …

From Cartier To Codification: Website-Blocking Injunctions And Third-Party Internet Service Provider Respondents, Dan Mackwood

Canadian Journal of Law and Technology

In recent years, the proliferation of commercial-scale copyright infringement through unauthorized online content streaming has created persisting legal hurdles for Canadian rights holders seeking redress. John Doe defendants in online copyright disputes can easily preserve their anonymity and operate their infringing enterprises from unknown locations, undeterred by injunctions issued against them directly. These anonymized administrators of illicit streaming platforms offer users unauthorized access to content for a lower cost than or as a free alternative to the access provided by the legitimate rights holder. This form of copyright infringement has reportedly resulted in up to hundreds of thousands of lost …

Cryptocurrencies And Climate Change: A Net-Zero Paradox, Jason Maclean

Canadian Journal of Law and Technology

Cryptocurrencies pose a number of complex law and policy problems, the most pressing of which are the industry’s climate and environmental impacts. This article examines the climate and environmental impacts of crypto-assets in the broader law and policy context of the UN Paris Agreement and the global goal of reaching net-zero emissions by 2050 or earlier. This approach not only illuminates the limitations and paradoxical nature of the crypto-industry’s climate commitments, but also the limitations and paradoxical nature of ‘‘net zero” itself as the predominant framing of national, subnational, and nonstate actors’ climate pledges. The article concludes by examining the …

Copyright Throughout A Creative Ai Pipeline, Sancho Mccann

Canadian Journal of Law and Technology

Consider the following fact pattern.

Alex paints some original works on canvas and posts photos of them online. Becca downloads those images and uses them to train an AI (training configures the AI’s model parameters to useful values). Becca posts the resulting trained parameter values on her website under a license that reserves to Becca the right to use the parameters commercially. Cory uses those parameter values in a program that is designed to produce artwork. Cory clicks create and the program produces a work. This work is new to Cory, but it looks a lot like one of Alex’s …

Perceiving Critical Infrastructure With A New Awareness Of Cyber Risk, Duncad Card

Canadian Journal of Law and Technology

North America’s critical infrastructure has been the subject of cyber-attack, in various cycles of activity, for many years. In March of 2017, a cyber-attack caused periodic ‘‘blind-spots” for electricity distribution grid operators in the Western US for about 10 dangerous hours. In May of this year, there was panic at the gas pumps across many States in southeastern United States, which has been attributed to a cyber-attack on a major US pipeline that disrupted fuel supplies to the US East coast. US Commerce Secretary Raimondo soon after that attack announced that those sorts of attacks are becoming more frequent and …

Book Review Rethinking The Jurisprudence Of Cyberspace, David Cowan

Canadian Journal of Law and Technology

It is a common claim that law is always catching up with technology. This is not entirely fair. The European Union’s General Data Protection Regulation1 (GDPR) could be viewed as a case of technology having to catch up to the law. That said, clearly there are challenges in law and in the legal profession, both in terms of how the law can adapt to changes in the digital world and the disruption of the legal profession. On the former point, there are perhaps three broad schools of thought: existing law is sufficient for adapting to new technological challenges, as it …

Crispr, Like Any Other Technology: Shedding Determinism & Reviving Athens, Jon Khan

Canadian Journal of Law and Technology

This article examines current narratives surrounding CRISPR (clustered regularly interspaced short palindromic repeats) and the current Canadian treatment of this novel biotechnology. It argues that Canada’s current approach to genetic research and CRISPR appear to have succumbed to the false narrative of technological determinism. It argues that Canada must buck the narrative and alter the current status quo in two principal ways: Canada should pursue more somatic CRISPR clinical trials in humans and permit pre-clinical germline editing. To design a regulatory regime for clinical germline editing and better guidance on somatic CRISPR clinical trials, Canada should engage Deliberative Polling to …

Recognizing Operators’ Duties To Properly Select And Supervise Ai Agents – A (Better?) Tool For Algorithmic Accountability, Richard Zuroff

Canadian Journal of Law and Technology

In November of 2020, the Privacy Commissioner of Canada proposed creating GDPR-inspired rights for decision subjects and allowing financial penalties for violations of those rights. Shortly afterward, the proposal to create a right to an explanation for algorithmic decisions was incorporated into Bill C-11, the Digital Charter Implementation Act. This commentary proposes that creating duties for operators to properly select and supervise artificial agents would be a complementary, and potentially more effective, accountability mechanism than creating a right to an explanation. These duties would be a natural extension of employers’ duties to properly select and retain human employees. Allowing victims …

If A Machine Could Talk, We Would Not Understand It: Canadian Innovation And The Copyright Act’S Tpm Interoperability Framework, Anthony D. Rosborough

Canadian Journal of Law and Technology

This analysis examines the legal implications of technological protection measures (‘‘TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (‘‘OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s ‘‘shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: …

Harmful Speech And The Covid-19 Penumbra, Kenneth Grad, Amanda Turnbull

Canadian Journal of Law and Technology

We make two central claims in this essay. First, the themes of malinformation have remained remarkably consistent across pandemics. What has changed is only the manner of their spread through evolving technologies and globalization. Thus, as with pandemic preparedness more generally, our failure to take proactive measures reflects a failure to heed the lessons of the past. Second, we argue that the COVID-19 pandemic presents a unique opportunity to tackle online falsehoods and mitigate their impact in the future.

We proceed in three parts. Part one addresses the harmful speech that inevitably follows in pandemic’s wake. We illustrate this through …

The Adverse Human Rights Impacts Of Canadian Technology Companies: Reforming Export Control With The Introduction Of Mandatory Human Rights Due Diligence, Siena Anstis, Rj Reid

Canadian Journal of Law and Technology

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking …

Digital Surveillance Of Covid-19: Privacy And Equity Considerations, Elaine Gibson, Cal Dewolfe, Ilana Luther

Canadian Journal of Law and Technology

In this paper, we examine the potentially deleterious effects of surveillance on vulnerable Canadians. A wide range of digital surveillance technologies have either been deployed or considered for deployment both in Canada and around the world in response to the international emergency created by the COVID-19 pandemic. Some of these technologies are highly effective in predicting or identifying individual cases and/or outbreaks; others assist in tracing contacts or enforcing compliance with quarantine and isolation measures. However, there are necessarily risks associated with their deployment. First are the infringements on privacy rights of citizens and groups. Second, these technologies run the …

Masthead, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Middleware Technologies: Towards User-Determined News Curation In Social Media, Jose M. Marella

Catholic University Journal of Law and Technology

News distribution and consumption now largely occur within, and are subject to dynamics dictated by, social media platforms. Platforms create audiences, facilitate matching, provide basic services, and set interaction standards. But these networks are structured to maximize engagement and benefit the platforms’ main businesses, leaving individuals with little to no ability to tailor news consumption according to their preferences.

To re-orient platform-dictated dynamics towards user-determined exchanges, middleware technologies—software services appended to social media platforms to curate information flows—are touted as a promising solution. Still, not enough literature articulates middleware’s virtues and hurdles, especially in the context of online news. This …