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Tatiana Dias is a fellow at Tech Policy Press.

Just hours after the Brazilian government published decrees expanding the liability of internet providers in Brazil last month, a congressional offensive to strike down the new rules began. Within 24 hours, 26 legislative decree proposals 

The move was visibly coordinated. The proposals were submitted by lawmakers from right-wing and far-right parties — most from PL, the party of former president Jair Bolsonaro — and share nearly identical arguments. Some are word-for-word the same.

As João Brant and Nina Santos, Secretary and Deputy Secretary for Digital Policies at the Brazilian Presidency, 

, the government's decrees aim to regulate last year's Supreme Court ruling — known as the STF — 

 of Brazil's Internet Civil Rights Framework, the Marco Civil da Internet.

For ten years, Brazilian law held that platforms were not liable for user-generated content. Last year, the STF ruled that article partially unconstitutional.

In practice, the decision shifted the liability regime for platforms in Brazil, but it 

. The STF is currently reviewing appeals filed by Big Tech companies against last year's ruling. The reporting justice, Minister Dias Toffoli, included a 

. The final ruling is expected to be published on Wednesday, June 17.

But it fell to Congress — according to the 

 — to establish the rules for the new liability regime to take effect. That hasn't happened so far. So the executive branch stepped in with its own regulatory proposal.

One of the Lula government's decrees is directly tied to the Marco Civil: it would require companies to exercise a duty of care over criminal content, prevent online fraud, and give the National Data Protection Authority, the ANPD, oversight power over platforms. The second focuses on protecting women online, requiring platforms to remove non-consensual intimate images within two hours and to put in place mechanisms to protect women — especially public figures and journalists.

As soon as the government released the proposals, an intense congressional push to block them began. Unlike previous episodes — 

 which was defeated after intense Big Tech lobbying — this time the companies did not act directly.

Instead, lawmakers moved in with requests to suspend the executive decrees. The proposals share the same argument: first, they invoke the Constitution to claim the decrees exceed executive authority. Then they assert that the decrees create "unprecedented obligations"; they challenge terms like "systemic failure" and "duty of care"; they warn of private censorship and free speech violations; and they conclude that regulating the matter falls outside the ANPD's mandate. Some call for the decrees to be struck down entirely; others target specific provisions.

None of the proposals have been voted on yet, but tensions are running high.

, the Brazilian Chamber of the Digital Economy — which includes companies such as Meta, OpenAI, Google, Kwai, and TikTok — alongside the Latin American Internet Association and the Conselho Digital, a Big Tech lobbying group, criticize the executive decrees as an "unusual" regulatory path and warns of legal uncertainty and excessive content takedowns.

Public figures mirrored these arguments. Lawyer Ronaldo Lemos, a member of the Oversight Board (Meta's content moderation council), an advisor to Spotify, and director of the think tank ITS-Rio, 

 sharply criticizing the government's decrees, calling the executive's move an "attack on the Constitution" and claiming that, by designating the ANPD as the regulatory body, Brazil is "copying the Russian model of concentration."

Carlos Affonso Souza, law professor and also director of ITS-Rio, said that Brazil uses the the 

digital sovereignty narrative as a 'shield’

compared the decrees to a Pandora’s box

: “once opened, jars or boxes, certain evils don't easily go back inside: diffuse surveillance, lawless competition, the space to silence legitimate dissent”.

In response, other commentators — including law professor Conrado Hubner — 

's authority to regulate the STF's decision, particularly given Congress's inaction on the issue. "The weak regulation of Big Tech offers a clear example of how legislative silence is not always an authentic expression of popular sovereignty. In this case, there is documented evidence of congressional capture by the most insidious corporate power ever seen in the history of capitalism," he wrote.

"Regulating the administrative operation of these rights, within the boundaries set by the STF and while awaiting congressional action, is not mimicking authoritarian countries. It is exercising the digital sovereignty of a democratic state under the rule of law," wrote seven other researchers in law, journalism, and sociology, in a 

separate piece defending the government's decrees

Amid the dispute, Big Tech still holds the 'Trump card'

There is yet another external element adding pressure to the debate. On June 1, the USTR proposed new 25% tariffs on Brazilian goods. The US investigation, which began last year, accuses Brazil of adopting anti-competitive practices that harm American companies — particularly in digital markets, payment systems, ethanol, corruption, and deforestation.

The USTR singles out Brazil's PIX payment system as an unfair practice and also references "secret court orders" suspending accounts and platforms — a reference to 

decisions issued by Justice Alexandre de Moraes

The STF ruling that declared Article 19 of the Marco Civil partially unconstitutional is also directly cited in the 

. According to the USTR, the decision "compounds this situation of uncertainty and risk, and effectively requires companies to choose between potentially incurring substantial liability for user-generated content and preemptively taking down potentially lawful content."

The tariff announcement came on the same day Trump 

with Jair Bolsonaro's son, Flávio, the far-right presidential candidate in this year's elections. Although Flávio 

 the new tariffs and the visit, last year his brother Eduardo has actively lobbied for U.S. retaliation against Brazil and publicly celebrated Trump's support after the announcing of the tariffs.

That moment, when Trump first floated the possibility of tariffs of up to 50% on Brazilian goods, Brazilian Vice President Geraldo Alckmin took the lead in negotiations, meeting not only with US officials but 

directly with the tech companies themselves

. In a series of meetings with Meta, Google, Amazon, Apple, Visa and others in July, following the tariff announcement, Alckmin signaled openness to data center investments and argued that Brazil "should not rush" to regulate Big Tech. 

With the decrees, the picture that emerges is one of coordinated pressure on multiple fronts: in Congress, through legislative decrees; in the public debate; and now on the geopolitical stage, with Washington using tariffs as leverage to defend American corporate interests in Brazil's digital market.

For the Lula government, the question is beyond regulatory. It is whether Brazil has the autonomy to set the rules of its own digital environment, or whether that decision will be negotiated, as it was in 2025, in closed meetings with the tech giants themselves.

 that would prohibit AI systems designed to create nonconsensual intimate images, one of the most 

 measures in a broader package aimed at simplifying the bloc’s Artificial Intelligence Act.

 reached on May 7 on legislation known as the "AI omnibus," which includes a new prohibition on so-called "nudifiers" — AI systems that generate explicit images of real people without their consent. Yet while lawmakers have repeatedly described the measure as a ban, many national authorities still lack the legal powers needed to enforce it.

The agreement requires companies to implement safeguards against the creation of nonconsensual sexual deepfakes and could remove offending systems from the EU market by the end of the year. “This is not a strict prohibition,” said Sadia Berdaï, head of the AI Innovation and Technology Unit at Luxembourg’s Data Protection Authority. “It’s about the intended purpose, the way you use the systems, not the technology itself.”

The issue of sexualized deepfakes returned to headlines recently after 

AI images of Italian Prime Minister Giorgia Meloni

 in lingerie circulated online. The case is a reflection of the broader problem, given that 

 of AI pornographic videos online are non-consensual, and 

“We're talking about systems designed to strip clothes from photographs of real people, not synthetically created people, but real people, overwhelmingly women and children, to humiliate them, degrade them, and objectify them. To do so at scale and industrialize that for profit,” Michael McNamara, a co-rapporteur of the AI Omnibus and a member of the European Parliament, said during the debate on Monday ahead of the vote.

The agreement prohibits AI systems intended to generate nonconsensual intimate content involving identifiable individuals. Users would also be barred from intentionally creating such content without consent.

The measure would not prohibit all AI-generated sexual content. Instead, it would allow the creation of synthetic intimate material when all depicted individuals have provided consent.

To qualify for protection, the targeted individual must be identifiable under the General Data Protection Regulation (GDPR), including through a face, name, location, online identifier or other distinguishing characteristics.

Belén Luna Sanz, a women's and digital rights advocate, said that the requirement may create challenges for victims. "It creates a significantly higher threshold for protection of victims and enforcement at the level of product safety," she said.

The proposal also excludes fictional characters and certain artistic, cartoon and medical uses. Critics say questions remain about how different cultures understand intimacy. Silvia Semenzin, a researcher focused on digital violence, pointed to examples involving AI-generated images of Muslim women without hijabs, which some may experience as a serious violation of privacy despite not being sexually explicit.

"Challenges remain regarding the definition of what constitutes 'intimate' content, a concept that varies across cultures and even between individuals," Luna Sanz said.

Who bears responsibility for consent and safeguards?

, consent must be freely given, specific, informed, unambiguous and explicit. Companies offering systems that generate or manipulate intimate content would be required to establish reliable mechanisms to collect and demonstrate consent while complying with the GDPR.

For Semenzin, the burden of proof remains a central concern.

"The person creating or sharing the images should have to prove they had consent and not the other way around," she said. "Victims should not be forced to prove, after the image has been created and it's already circulating, that they did not authorize it."

The agreement would also place new obligations on developers. Regulators could scrutinize companies whose systems predictably and repeatedly generate nonconsensual intimate content if they fail to implement adequate safeguards.

Luna Sanz said the approach is significant because "it puts responsibility not only on the perpetrators of such abuse, but also on the companies."

According to the text, providers would be expected to deploy safeguards including data cleaning, refusal training, prompt-design protections, output controls, runtime guardrails, content filtering, usage restrictions, abuse-detection systems, and notice-and-action mechanisms. 

“Platforms will be required to implement robust safeguards, including prompt-level filters, building on existing practices in other regulated domains,” Member of the European Parliament and shadow rapporteur for the Omnibus, Sergey Lagodinsky, told Tech Policy Press. 

Markéta Gregorová, another member of the European Parliament and shadow rapporteur on the Omnibus, said many providers already employ similar protections. “Most AI providers don’t want these images to be generated regardless and already have measures in place,” she said. “The cost for these providers will be minimal since they already comply with the ban.” X chatbot, Grok, still 

As with other parts of the AI Act, enforcement is the real 

, requiring coordination between national AI 

, and the European Commission. At the moment, 

 have designated a market surveillance authority, and even those bodies have limited powers until national legislation is in place.

“Until national laws are voted, we are not competent to enforce the AI Act,” Berdaï said. According to Berdaï, Italy and Denmark are among the few countries that have approved national laws allowing them to enforce nudity prohibitions. In Luxembourg, regulators can act under the GDPR when personal data processing is involved, but not under the AI Act itself. “It’s just a matter of competence, and as long as the law is not voted on, we don’t have the competence, even though we are skilled,” said Berdaï.

Lithuania faces similar challenges. The country’s Communications Regulatory Authority told Tech Policy Press that “the practical enforcement arrangements are not yet fully defined at the EU level,” including how responsibilities will be divided between national market surveillance authorities and the European AI Office, and that it was still too early to know the exact procedures that will apply from December 2026.

Breaching any of the AI Act’s prohibitions can lead to fines of up to EUR 35 million or, for companies, up to 7% of worldwide annual turnover from the previous financial year, whichever is higher.

After Tuesday’s vote in Parliament, the agreement needs to be adopted by the Council, then published in the Journal of the European Union. Given that the AI Omnibus delays the high-risk provisions scheduled for August 2026, Brussels wants the file ready before that deadline. However, the ban on nudifiers is only due to start on Dec. 2.

Surveillance pricing, or the use of personal information to set different prices for different consumers, is often treated as a novel problem requiring new legislation. The debate is further muddied by 

 about how regulation could inadvertently harm consumers, including by restricting legitimate discounts.

However, Canada already has a well-established precedent for regulating against unfair discriminatory pricing in the 

 of 1993. We have simply failed to apply that framework to surveillance pricing.

Subsection 27(1) of the Act requires that all Canadian carriers of telecommunication services must charge rates that are just and reasonable. Subsection 27(2) prohibits carriers from charging a rate that is unjustly discriminatory or subjects any person to an undue or unreasonable disadvantage.

This principle is also not unique to the Telecommunications Act, but in fact has long been a staple of transport, energy, and communication regulation. For example, the 

 of 1991 contains a very similar provision on undue preference or disadvantage.

Surveillance pricing can be understood in similar terms, too. It is effectively a form of discrimination that may subject certain consumers or segments to unreasonable disadvantages by charging them prices that are arbitrarily, and often unknowably, higher than those paid by others.

Canada already has a framework to prohibit discriminatory practices

Following policy progress in the US, Canada is beginning to engage in the 

 around data-driven pricing strategies that segment consumers based on increasingly sophisticated profiles. Yet despite a commitment in the federal 

 to modernize privacy laws and to “ensure that Canadians’ personal information is not used inappropriately, including for surveillance pricing,” the recently tabled privacy bill, 

, does not explicitly address the practice. The bill provides more clarity on what may count as an inappropriate purpose and imposes stronger transparency requirements around automated decision-making, but it does not specify how these provisions apply to surveillance pricing.

So Canada still seems to be waffling around on how to respond to these practices—or even 

 at all. But Canadian law already articulates a relevant guiding principle. The principle of just and reasonable pricing should not be confined to telecommunications; it needs to be applied more broadly across the economy.

 the Canadian Radio and Telecommunications Commission (CRTC) broad and highly discretionary authority to address unjust discrimination, a power it has exercised repeatedly.

 Bell (one of the country’s largest telecommunications providers) had violated subsection 27(2) for effectively self-preferencing its own products through its pricing practices. The complaint alleged that as a result of Bell self-preferencing its own services, it effectively 

 customers eight times more to access competitors’ content offerings.

Surveillance pricing is a different phenomenon, and the basis for discrimination is different. Yet the effect is the same: consumers are penalized by a firm that can leverage its position to engage in unjust discrimination and charge them more than others. In the case of surveillance pricing, that leverage derives from the excessive amounts of data that firms collect and use to profile consumers.

Some have expressed concerns that regulating surveillance pricing will eliminate discounts based on broad demographic categories, such as student or senior discounts. But a prohibition on unfair price discrimination need not have that effect. There is an 

 between universal discounts applied transparently based on a single voluntarily disclosed characteristic, like a person’s age, and individualized pricing based on a consumer’s inferred willingness to pay, determined from an obtuse array of personal data points.

Quebec offers us another example of legislative precedent for addressing surveillance pricing. 

 prohibits the use of personal information for profiling unless explicitly authorized and also applies to de-identified data, where federal privacy laws remain comparatively weak. 

, requirements related to profiling would apply to surveillance pricing, but they have yet to be tested in court. At the very least, the law reflects an established principle: some uses of personal information are inappropriate, regardless of their commercial value.

These two relatively modest provisions, one in long-established federal legislation and the other in a provincial privacy law, offer a clear framework for addressing surveillance pricing. Taken together, they suggested Canada is further ahead on this issue than it may appear. Yet that progress is not reflected in the newly proposed federal privacy legislation.

Why privacy law leaves the issue unresolved

Surveillance pricing is enabled by the collection and exploitation of consumers' personal information. At its core, it is a 

. Accordingly, it is best tackled through privacy legislation.

Under the current federal framework, subsection 5(3) of the 

Personal Information Protection and Electronic Documents Act

 (PIPEDA) permits organizations to collect, use, or disclose personal information for purposes that are appropriate. 

 from the Privacy Commissioner sets out that the use of personal information for profiling or categorization that leads to unfair, unethical, or discriminatory treatment contrary to human rights law is not allowed.

However, the bar the law sets is quite high—only discrimination based on grounds prohibited in human rights law would be considered inappropriate. The Commissioner’s guidance also suggests that unfair or unethical profiling will “generally be found inappropriate,” though there is no definition of what this might mean in practice.

This is where applying the principle in the 

 against unjust discrimination could enable PIPEDA to explicitly prohibit the use of personal information for unfair discrimination. By amending the law to define unfair discrimination to include pricing strategies that use personal information to unjustly set individualized prices for different consumers.

Bill C-36 does expand on what constitutes an appropriate purpose and provides a list of factors organizations must take into account, including whether an individual’s loss of privacy is proportionate to the benefits of using the personal data. Fairness and non-discrimination are not among those factors. Whether surveillance pricing would be considered an inappropriate purpose is unclear, though additional obligations could be prescribed in regulations made under the act.

’s approach is that it provides the regulator with broad discretion to determine whether obligations have been met, recognizing that there will be important variations on a case-by-case basis. Likewise, an amended PIPEDA could provide the Privacy Commissioner with similar discretion for determining when the use of personal information constitutes unfair discrimination, and ideally, the teeth it needs to enforce against infractions.

What Canada ought not rely on, however, is transparency-based regulation of surveillance pricing. As various US states have moved to regulate surveillance pricing, many have looked to New York’s 

 as a model. The law requires that firms using surveillance pricing prominently display a warning that discloses that a price was set using an algorithm based on a consumer’s personal information.

Bill C-36 proposes a weaker disclosure requirement: organizations must make information available about their uses of any automated decision-making system that could have a significant impact on an individual. The bill does not require that such a warning be prominently disclosed rather than buried in a dense privacy policy, and it leaves the threshold for what counts as a “significant effect” undefined.

Transparency has value. It is important for consumers to know when and how their information is being used. But disclosure alone will not prevent firms from engaging in surveillance pricing. The fundamental issue is not a lack of transparency; it is the largely unchecked collection and exploitation of the public’s data. The fact that it mostly occurs without a consumer’s knowledge only compounds its effect, but it is not the source of it.

 exemplifies, if we were unwilling to accept disclosure as a remedy for unfair discrimination in pricing access to telecommunications services —why should we accept the practice of widespread surveillance pricing, where the impacts will be felt even more broadly?

Still, starting with how personal information is used is essential. Firms have always looked for novel ways to exploit consumers, and limits on invasive data collection provide an important check on their ability to further do so, especially as AI is 

 companies to utilize and leverage data at an unprecedented scale.

Canada has established a strong precedent for fair and non-discriminatory pricing through legislation and regulations. While surveillance pricing may be a privacy problem, the debate should fundamentally turn on values. We must take the clear and principled stance that using personal information to set individualized prices is unfair discrimination and regulate it accordingly.

This post is part of a series of student essays produced in collaboration with the Berkman Klein Center for Internet & Society at Harvard University. 

Last year, my phone's photo album image classifier sorted me into three people: one before my transition, one during, and one after. While my face stayed the same, the algorithm apparently failed to understand my fluid identity. It would appear that people like me were missing from the training data, or perhaps simply that no one designing the system stopped to ask 

This failure of recognition extends far beyond my personal experience. It is symptomatic of a major gap in protection and representation throughout entire artificial intelligence supply chains. We see it in 

 earning $2 an hour, denied basic labor protections while absorbing the internet's most traumatic content. We see it in Boxtown, a historically Black neighborhood in South Memphis with cancer risk quadruple the national average that is now enduring pollution from 

 powering a neighboring supercomputer. The populations most harmed by AI consistently have the least agency over its development, creation, and deployment.

These realities all point to the power of regulatory arbitrage. Reminiscent of the decade-long battle to regulate e-cigarettes, AI companies exploit legal gray areas to cause familiar harms through new mechanisms, all while evading existing legal protections in place. AI repackages the systemic issues marginalized communities have fought so hard against: bias, labor exploitation, and environmental racism. And deliver it through something new: algorithms, micro-task platforms, and data centers. Nevertheless the core harms remain the same.

When prompting a generative AI to show a transgender woman, the result in my experience is almost always a caricature. When I entered such a prompt recently, an image of a white, young barista appeared. This output was created by images assembled from the most dominant patterns in the training data available, regardless of inherent bias. Conversely, when I try to self-identify within prompts, terms like "Latina transgender woman" often trigger content filters. I end up being simultaneously erased and censored.

 AI, and the results of this technology reflects this erasure. A 

 found that facial analysis tools from Amazon, IBM, Microsoft, and Clarifai accurately identified transgender women only 87.3% of the time, compared to 97.6% for cisgender women. For transgender men, the gap widened to 70.5% versus 98.3%. The industry claims accuracy has improved since, but 

94.8% of research on automated gender recognition still treats gender as binary and 72.4% as immutable

. The architecture hasn't changed; the bias persists and has just stopped being measured. Furthermore, 

 demonstrates that large language models (LLMs) actively direct transgender patients toward STI and mental health services, while routing cisgender patients services like gynecology and breast care.

But a simple demand for inclusion is not enough. Transgender communities are underrepresented in everyday datasets but vastly overrepresented in sensationalized contexts like 

 on social media. When advocates push for just inclusion, they face a double-edged sword. In jurisdictions that criminalize trans identities, comprehensive datasets easily become weapons for state surveillance and without it might perpetuate overly sensationalized ideals. Inclusion without explicit, granular consent is not equity. It is a new method of data extraction. When an algorithm eventually denies someone healthcare or housing, existing anti-discrimination frameworks fail. These regulations, having been designed for human accountability, can’t answer whether the liability lies with the developer, the deployer, or the dataset.

Growing up Salvadoran in the United States, I learned early how wealthy nations offshore extractive practices to communities, often the Global South, with fewer legal protections, like 

. The AI supply chain operates on this exact logic, merely substituting sweatshops for laptops.

On micro-task platforms like Remotasks, owned by Scale AI and valued at over $25 billion, 

Kenyan data workers earn $1.50 to $2 per hour

 labeling images, moderating content, and fine-tuning models, while US workers may 

 or more for identical work. By categorizing international data workers as independent contractors rather than employees, AI companies can aggressively bypass minimum wage floors, workplace safety standards, and collective bargaining rights. An employment classification loophole enables this disparity.

The psychological toll for this type of labor is heavily documented. A 

 identified 60 severe incidents of psychological harm, including PTSD and substance dependence, among a sample of just 76 data workers across Colombia, Ghana, and Kenya. These moderators assess graphic violence and child sexual abuse material in 50-second windows on contracts as short as five days. Yet, these workers are not waiting for regulators. From 

97 Kenyan data labelers petitioning the former US president

, resistance is growing. The African Content Moderators Union and Kenya's Data Labelers Association are already building 

, moving faster than the regulatory frameworks designed to protect them.

As a Latina raised in Reno, Nevada, surrounded by the legacy of redlining and rental covenants, I learned that racist history dictates which communities receive investment and which receive pollution. Today, Boxtown, a South Memphis neighborhood founded by formerly enslaved people, inherits that unfortunate logic.

To power its Colossus supercomputer, xAI 

installed 35 methane gas turbines without air quality permits

 in Boxtown, a community already burdened by pollution from an oil refinery and a steel mill. A 

 projects that adding 41 permanent turbines would result in up to $44 million annually in health damages. These negative externalities are concentrated almost entirely in the Black neighborhoods surrounding the facility.

Even as community pushback in Memphis forced xAI to seek permits for some of its turbines, the company expanded across the state line into Southaven, Mississippi, where regulators of the state’s Department of Environmental Quality 

initially classified xAI's turbines as "temporary mobile engines,"

 exempting them from standard permitting. xAI installed as many as 

27 additional unpermitted turbines in Southaven

. Environmental groups argue that the EPA's 

 confirms these turbines require permits, though Mississippi regulators dispute that reading. The 

NAACP and Southern Environmental Law Center

 under the Clean Air Act. The same systems that erase my identity run on servers powered by turbines that poison Black neighborhoods, emitting nitrogen oxides and particulate matter that the Clean Air Act was explicitly written to regulate. This is regulatory arbitrage in action.

The transgender individual erased by training data, the Kenyan worker moderating that data for $2 an hour, and the Black neighborhood choking on the emissions required to process the data are all fundamentally linked. They are all victims of old harms delivered through novel, unregulated mechanisms devoid of consent.

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