Canadian and Other Privacy and Data Protection Authorities Address Anticipated Challenges Related to Artificial Intelligence

Bennett Jones LLP

Bennett Jones LLP

[co-author: Stephanie Gagne - Student at Law]

Artificial intelligence (AI) presents numerous opportunities to benefit society; however, the Office of the Privacy Commissioner of Canada (OIPC), together with numerous international counterparts, have been urging the adoption of national strategies to ensure the responsible use of AI and mitigate the risks to privacy and data associated with same.

The Declaration on Ethics and Data Protection in AI

Recognizing that AI poses challenges to privacy, data protection and human rights, the Declaration on Ethics and Data Protection in Artificial Intelligence was adopted at the 40th International Conference of Data Protection and Privacy Commissioners. This Declaration aims to “preserve human rights in the development of artificial intelligence” by endorsing the following six guiding principles:

  • Fairness: the use of AI should remain consistent with its original purpose and should neither endanger nor obstruct “human development” but rather facilitate it.
  • Continued attention and vigilance: stakeholders should remain accountable for the potential effects or consequences of AI. Continued attention and vigilance will be ensured by demonstrable governance process, awareness and collective and joint responsibility.
  • Improving systems transparency and intelligibility: to ensure effective implementation of AI, transparency and intelligibility should be sought by investing in public and private scientific research, promoting “algorithmic transparency and the auditability of systems,” providing adequate information to ensure continuous alignment with user expectations, and enabling human control on AI systems.
  • Designed and developed responsibly in accordance with the privacy by default and privacy by design: technical and operational measures proportional to the type of AI system developed should be implemented to ensure data protection and privacy. Responsible design can be achieved by documenting the expected impact AI will have on individuals and society, and by identifying requirements for ethical and fair use of AI systems.
  • Empowerment of every individuals: individuals’ rights, including data protection and privacy rights and freedom of expression, should be promoted and respected.
  • Biases and discrimination: unlawful biases and discrimination should be addressed, reduced and mitigated by, for example, investing in research into ways to identify and mitigate such biases, and taking steps to ensure the personal information used in automated decision-making is accurate and as complete as possible.

Undertakings to Protect Canadians' Privacy

While the OIPC continues to monitor AI developments in Canada and internationally, the Government of Canada has also been active in addressing potential issues arising from the use of such technologies.

For example, Canada is among the first countries to announce a national strategy for AI. The Pan-Canadian Artificial Intelligence Strategy, a $125-million investment in AI, was announced in the 2017 Federal Budget, with a main objective of supporting research on AI.

In addition to the Pan-Canadian Artificial Intelligence Strategy, the Government of Canada:

  • published its Data Strategy Roadmap which aims to: (i) ensure all government departments and agencies have a data strategy in place by September, 2019; (ii) provide greater clarity around data governance; and (iii) develop standards and guidelines on data access, collection, safeguard and sharing for government departments;
  • issued the Directive on Automated Decision-Making on March 4, 2019, with the objective of reducing risks associated with automated decision-making and ensuring its efficient, accurate, consistent and interpretable use in compliance with Canadian law. The Directive also requires the completion of an Algorithmic Impact Assessment which will help identify and mitigate negative outcomes resulting from the use of automated decision systems;
  • released a Digital Charter on May 21, 2019, that aims to address challenges posed by digital and data transformation and leverage Canadian talents (for a summary, click here);
  • announced its involvement in the International Panel on Artificial Intelligence, a collaboration among various national governments intended to advance “… a shared understanding of AI issues and to support and guide the responsible adoption of AI that is human-centric and grounded in human rights, inclusion, diversity, innovation and economic growth”; and
  • assessed and is in the process of modernizing legislative and policy framework pertaining to privacy to ensure responsible use of personal information. Proposed clarifications to the federal Personal Information Protection and Electronic Documents Act include: "information individuals should receive when they provide consent; certain exceptions to consent; data mobility; deletion and withdrawal of consent; incentives for certification, codes, standards, and data trusts; enhanced powers for the OIPC; as well certain modernizations to the structure of the law itself and various definitions".

Although AI promises to improve competitiveness, productivity, and innovation, there are various privacy and security-related concerns that persist. As such, we recommend closely monitoring the regulatory response to this emerging field.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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