Unregulated algorithms is “privatized discoverability regulations” not consumer choice, Senate hears

The question over the place of algorithms and discoverability in the Online Streaming Act is a question about who should set the course for Canadian culture, according to Brock University associate professor in Political Science Blayne Haggart. “Is it the free market – and like I said it's not really free if it's basically companies that are determining what's getting seen – or is there a role for government intervention in this area,” Haggart asked senators. Wednesday evening Haggart appeared before the Senate Committee on Transportation and Communications as it continued its study of Bill C-11. Also appearing were Concordia University associate professor in Information and Communication Technology Policy Fenwick McKelvey and University of Calgary Canadian research chair in Cybersecurity Law Emily Laidlaw. “Who sets these rules? Right now, they're being set by private companies. So it is the algorithms, it's not consumer choice; that's it setting them. Consumer choice – your actions on these platforms – is one input into that but it's not the only one,” said Haggart Haggart argued that global content intermediaries, such as Alphabet Inc.’s YouTube or TikTok, have emerged as significant and largely unaccountable cultural regulators in and of themselves. “The first key point that I'd make is that these rules would not involve government interference into an otherwise free marketplace of ideas, which is the traditional terrain for these kinds of CanCon debates. Rather, they target companies that are already acting as consequential regulators and that’s where algorithms come in.” Haggart said that algorithms are already a form of regulation for private companies. “These privatized discoverability regulations are not designed simply to surface the most popular content or the content that you, the viewer or reader, are most interested in,” he said. He said that those types of platforms, without government oversight, can decide for themselves who are the “winners or losers” and what’s popular, which will disadvantage certain communities. He noted that there were allegations that YouTube demonetized LGBTQ content on its website. There have also been reports that TikTok suppresses videos made by individuals who are deemed “ugly.” One of the benefits of CRTC regulation, according to Haggart, would be the ability to produce concrete data, so the government can make policy based on hard evidence rather than anecdotes. Right now algorithms are proprietary knowledge so there is very little understanding of how they work on platforms. “In short, the question for parliament is ‘what criteria do we want to use to determine what content gets promoted to Canadians?’ And ‘who should be allowed to make these decisions?’ These are all legitimate reasons for action by the federal government and the CRTC,” he said. The biggest problem with discoverability is that the government would have no means of knowing if its policies are working or not, he added. “The idea of discoverability itself is very much in line with the theory that cultural policy must be supply-driven, and not just demand- or market-driven. Ideally, targets would help to promote not only Canadian culture as a whole, but also Francophone and indigenous culture, as well as creators outside of the Canadian mainstream … But there needs to be a robust discussion about what these targets should be, and that really I don't think has happened.” Laidlaw warned senators that any government legislation which compels specific algorithmic outcomes may be a form of compelled speech, therefore violating Canadians’ rights to freedom of speech. Case law in the United States found that mandating certain search results was a form of compelled speech. Although Canada is not that extreme, the government needs to tread lightly, she said. “I really have two pieces of advice. One: narrow targeting of social media to social media of a certain size, narrow the range of content and behaviors that are being targeted. In short, be under-inclusive in the name of certainty and constitutionality, and the second would be to broaden the focus to algorithmic accountability to get to the real root of the problem.” According to Fenwick., nuance is lacking in the Online Streaming Act when it comes to defining discoverability and creators. “The lack of a clear definition of discoverability – as opposed to prominence or catalogue quota – undermines a larger movement for algorithmic and AI accountability,” he said. McKelvey said the act needed to better define “discoverability” and its consequences for regulated entities and the feasibility under the United States–Mexico–Canada Agreement (USMCA). “In addition, I recommend a more coordinated effort across government to implement an Algorithmic and AI accountability act.” McKelvey said nuance is lacking in the bill to define who gets scoped into the bill and recommended that the government create a separate bill for digital content creators. As it stands now, Bill C-11’s “exception to the exception” scopes out social media users but then scopes back in certain kinds of programs on platforms such as YouTube if it “directly or indirectly generates revenues.” “There's a spectrum of creators,” he said. “One of the challenges, presently, is the confusion – or at least a need to delineate the different spectrums – at one end commercial creators with the designation before the government and then at the other end user generated content creators. And one of the parts that I think complicates the bill is the growing involvement of platforms in cultivating creators, whether that's through affiliate programs, or within kind of podcasting deals with Spotify. So I think it's important to say that when we're discussing creators, we're not talking about all the same category. The problem with the bill presently is that that nuance is lacking.” McKelvey said discoverability might also lead to privacy issues arguing that a private data collector can grant broadcasting distributors unfair market power and recommended the act adds a policy objective to “contribute to the protection of the privacy of persons and recognize the public and cultural significance of information about them.” “The amendment recognizes both the need to harmonize privacy and broadcasting policy, but also recognizes the significance of cultural data as a public commons that require care and protection, especially in an age of DALL-E and Stable Diffusion,” he said, referring to machine learning models that produce images through AI. – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Unregulated algorithms is “privatized discoverability regulations” not consumer choice, Senate hears

News | October 6, 2022

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Unregulated algorithms is “privatized discoverability regulations” not consumer choice, Senate hears

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