On January 28, 2020 – International Data Privacy Day – the Office of the Privacy Commissioner of Canada (OPC) released its proposals for ensuring appropriate regulation of artificial intelligence (AI), and announced that it is seeking public feedback.

Parties have until March 13, 2020 to file submissions with the OPC, in accordance with the OPC’s “Notice of consultation and call for comments on AI consultation paper” which is available here.

The OPC’s 11 proposals for consideration are set out in a consultation paper (click here to view). The paper seeks input on numerous discussion questions.

The 11 proposals are:

  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
  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
  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 exceptions
  4. Provide individuals with a right to explanation and increased transparency when they interact with, or are subject to, automated processing
  5. Require the application of Privacy by Design and Human Rights by Design in all phases of processing, including data collection
  6. Make compliance with purpose specification and data minimization principles in the AI context both realistic and effective
  7. Include in the law alternative grounds for processing and solutions to protect privacy when obtaining meaningful consent is not practicable
  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
  9. Require organizations to ensure data and algorithmic traceability, including in relation to datasets, processes and decisions made during the AI system lifecycle
  10. Mandate demonstrable accountability for the development and implementation of AI processing
  11. Empower the OPC to issue binding orders and financial penalties to organizations for non-compliance with the law

Looking Ahead

The regulation of AI is one of the hottest technology law themes in Canada this year. The OPC’s consultation will help to continue to keep legal and other issues around AI in the forefront.

Recent past consultations by the OPC have resulted in the receipt of detailed and thoughtful submissions from the legal community as well as other stakeholders (e.g. industry, academia, etc.).

It is anticipated that the OPC will receive many insightful submissions on this consultation, and it is hoped that the OPC will release an updated paper that incorporates the feedback that is received by the OPC.