Artificial Intelligence

Privacy Commissioner Issues Notice Of Consultation On Artificial Intelligence

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The Office of the Privacy Commissioner of Canada
(“OPC“) has released a Consultation
Paper on artificial intelligence (“AI“),
saying that it is of the opinion that “responsible innovation
involving AI systems must take place in a regulatory environment
that respects fundamental rights and creates the conditions for
trust in the digital economy to flourish. “

The OPC intends to examine AI in the context of the legislative
reform policy analysis as it relates specifically to the Personal
Information Protection and Electronic Documents Act
(“PIPEDA“). The OPC is clear that it has
concerns about AI, stating:

“In our view, AI presents fundamental challenges to all
PIPEDA principles and we have identified several areas where the
Act could be enhanced.”

Comments are due March 13, 2020, giving very
little time for stakeholders to provide input on what are some very
complex issues.

The proposals

The Consultation Paper, called Consultation on the OPC’s Proposals for
ensuring appropriate regulation of artificial
, contains a eleven proposals for
consideration, and then asks a number of specific questions related
to each proposal. In sum, the proposals amount to a call by the OPC
to treat privacy as a human right, require AI to adopt certain
protections as a result, and create special rules for AI that go
beyond the current privacy framework.

Some of the more business-friendly proposals include
establishing alternative grounds for the processing of personal
information, and establishing rules that allow for flexibility in
using personal information that has been rendered

Proposal 1: Incorporate a definition of AI
within the law that would serve to clarify which legal rules would
apply only to it, while other rules would apply to all processing,
including AI.

  • Should AI be governed by the same rules as other forms of
    processing, potentially enhanced as recommended in this paper
    (which means there would be no need for a definition and the
    principles of technological neutrality would be preserved) or
    should certain rules be limited to AI due to its specific risks to
    privacy and, consequently, to other human rights?

  • If certain rules should apply to AI only, how should AI be
    defined in the law to help clarify the application of such

Proposal 2: Adopt a rights-based approach in
the law, whereby data protection principles are implemented as a
means to protect a broader right to privacy—recognized as a
fundamental human right and as foundational to the exercise of
other human rights

  • What challenges, if any, would be created for organizations if
    the law were amended to more clearly require that any development
    of AI systems must first be checked against privacy, human rights
    and the basic tenets of constitutional democracy?

Proposal 3: Create a right in the law to object
to automated decision-making and not to be subject to decisions
based solely on automated processing, subject to certain

  • Should PIPEDA include a right to object as framed in this

  • If so, what should be the relevant parameters and conditions
    for its application?

Proposal 4: Provide individuals with a right to
explanation and increased transparency when they interact with, or
are subject to, automated processing

  • What should the right to an explanation entail?

  • Would enhanced transparency measures significantly improve
    privacy protection, or would more traditional measures suffice,
    such as audits and other enforcement actions of regulators?

Proposal 5: Require the application of Privacy
by Design and Human Rights by Design in all phases of processing,
including data collection

  • Should Privacy by Design be a legal requirement under

  • Would it be feasible or desirable to create an obligation for
    manufacturers to test AI products and procedures for privacy and
    human rights impacts as a precondition of access to the

Proposal 6: Make compliance with purpose
specification and data minimization principles in the AI context
both realistic and effective

  • Can the legal principles of purpose specification and data
    minimization work in an AI context and be designed for at the

  • If yes, would doing so limit potential societal benefits to be
    gained from use of AI?

  • If no, what are the alternatives or safeguards to

Proposal 7: Include in the law alternative
grounds for processing and solutions to protect privacy when
obtaining meaningful consent is not practicable

  • If a new law were to add grounds for processing beyond consent,
    with privacy protective conditions, should it require organizations
    to seek to obtain consent in the first place, including through
    innovative models, before turning to other grounds?

  • Is it fair to consumers to create a system where, through the
    consent model, they would share the burden of authorizing AI versus
    one where the law would accept that consent is often not practical
    and other forms of protection must be found?

  • Requiring consent implies organizations are able to define
    purposes for which they intend to use data with sufficient
    precision for the consent to be meaningful. Are the various
    purposes inherent in AI processing sufficiently knowable so that
    they can be clearly explained to an individual at the time of
    collection in order for meaningful consent to be obtained?

  • Should consent be reserved for situations where purposes are
    clear and directly relevant to a service, leaving certain
    situations to be governed by other grounds? In your view, what are
    the situations that should be governed by other grounds?

  • How should any new grounds for processing in PIPEDA be framed:
    as socially beneficial purposes (where the public interest clearly
    outweighs privacy incursions) or more broadly, such as the
    GDPR’s legitimate interests (which includes legitimate
    commercial interests)?

  • What are your views on adopting incentives that would encourage
    meaningful consent models for use of personal information for
    business innovation?

Proposal 8: Establish rules that allow for
flexibility in using information that has been rendered
non-identifiable, while ensuring there are enhanced measures to
protect against re-identification

  • What could be the role of de-identification or other comparable
    state of the art techniques (synthetic data, differential privacy,
    etc.) in achieving both legitimate commercial interests and
    protection of privacy?

  • Which PIPEDA principles would be subject to exceptions or

  • What could be enhanced measures under a reformed Act to prevent

Proposal 9: Require organizations to ensure
data and algorithmic traceability, including in relation to
datasets, processes and decisions made during the AI system

  • Is data traceability necessary, in an AI context, to ensure
    compliance with principles of data accuracy, transparency, access
    and correction and accountability, or are there other effective
    ways to achieve meaningful compliance with these principles?

Proposal 10: Mandate demonstrable
accountability for the development and implementation of AI

  • Would enhanced measures such as those as we propose
    (record-keeping, third party audits, proactive inspections by the
    OPC) be effective means to ensure demonstrable accountability on
    the part of organizations?

  • What are the implementation considerations for the various
    measures identified?

  • What additional measures should be put in place to ensure that
    humans remain accountable for AI decisions?

Proposal 11: Empower the OPC to issue binding
orders and financial penalties to organizations for non-compliance
with the law

  • Do you agree that in order for AI to be implemented in respect
    of privacy and human rights, organizations need to be subject to
    enforceable penalties for non-compliance with the law?

  • Are there additional or alternative measures that could achieve
    the same objectives?

The Notice of Consultation and the
Consultation Paper can be found on
the OPC’s website.

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