OPC seeks right for Canadians to push back on AI decision making

The Office of the Privacy Commissioner of Canada (OPC) has issued its anticipated proposals for regulating artificial intelligence (AI), recommending that Canadians be given the right to contest automated decisions. The OPC recommendations also suggest that companies and organizations could be granted permission to use de-identified personal data without users’ consent for certain “socially beneficial” reasons and for “legitimate commercial purposes,” although in exchange, they could face greater oversight from the commissioner. The proposals stem from an OPC consultation launched in January. At the time, privacy commissioner Daniel Therrien indicated that the Personal Information Protection and Electronic Documents Act (PIPEDA) was in need of updating in light of new privacy challenges stoked by the use of AI technology in Canada. The OPC’s comments advocate for changes to PIPEDA that would allow Canadians to push back on decisions made by AI systems. Noting that AI is used to make judgments on everyday activities from loan applications to the determination of insurance premiums, the OPC wrote Canadians should be given a right to “meaningful explanation for automated decisions”, as well as rights to contest such decisions, with firm rules that would prevent companies from invoking commercial confidence as a way to avoid explaining the behaviour of their AI systems. “An individual should not be denied their right to an explanation on the grounds of proprietary information or trade secrets,” reads the Commissioner’s report. However, Canada research chair in information law and policy at the University of Ottawa Teresa Scassa said in an interview with The Wire Report that it could be difficult for the federal government to pursue the right to contest legislatively. She explained that because it centres around questions of how businesses make decisions, AI decision making could be considered under provincial, not federal jurisdiction. Despite the OPC’s cautious tone about AI and its calls for greater powers, the watchdog also expresses an interest in allowing “the benefits of AI to be better achieved” — to that end, the OPC recommends changes to the ways that consent is sought from individuals in relation to organizations’ use of AI technologies. The OPC recommends that exceptions be carved out where consent for use of personal information and data is not needed — when the information is used for research purposes (allowing AI systems to improve by drawing on a greater pool of data), when information is used for a “compatible purpose” that lines up with consent already given by an individual, and when information is to be used for “legitimate commercial interests.” The recommendations don’t provide concrete examples of when these exceptions might legitimately apply, although the OPC effectively indicated that it would reserve the right to make those judgments in future. “We believe the law should address this challenge by defining permissible uses and applicable rights in broad terms, leading to appropriate interpretation in context at the relevant time,” the commissioner recommended. Brenda McPhail, privacy director at the Canadian Civil Liberties Association said that while she supports a number of the OPC’s proposed PIPEDA updates, these exemptions from consent — especially for business — were a key point of concern. “Who gets to decide what’s socially beneficial? If there’s a purpose that’s deemed to be in the public interest, who comprises the public in a diverse, inclusive country?” she said in an interview with The Wire Report. “We would want to think more about what legitimate commercial interests might exist that would be so pressing that they might override privacy rights.” While the OPC’s exceptions for consent are somewhat broad, McPhail said she believed the rationale was to balance freedom for businesses with greater powers for the commissioner. “They’re going for a regime where businesses have some freedom to use information in ways that support their business ‘legitimately’ but within a framework that provides enhanced oversight. So if it turns out that they’re fudging what a commercial interest is, then the OPC would have the ability to stop that and potentially levy fines.” Invoking the type of regulatory power granted to departments like the Canadian Food Inspection Agency or Health Canada, the OPC recommended that it be given the power to assess and enforce compliance with privacy laws like PIPEDA, including the ability to issue binding orders and financial penalties. “Without effective enforcement, rights become hollow and trust dissipates,” the commissioner’s recommendations stated. More generally, the report calls for a “rights-based regime” that regards privacy as a fundamental human right. “It would help support responsible innovation and foster trust in the marketplace, giving individuals the confidence to fully participate in the digital age,” stated the report. uOttawa’s Teresa Scassa said she felt this rights-based approach to be “entirely appropriate”. “There’s an inclination to frame it in some quarters as just about managing data… like a marketplace where you have people consenting to this, and not to that. I think we have to reject that paradigm and that it’s about protecting some fairly fundamental human rights.” Scassa also suggested that there is a solid case to be made for granting the OPC greater powers to enforce PIPEDA and other laws. “As the volume of data increases — along with the implications it has on people’s lives, in the potential for huge data breaches and for it to be used in ways that people don’t fully understand — I think the case starts to be made for a much more involved regulator.” The question of whether the federal government runs with the OPC recommendations should be answered soon: the government is expected to release a draft bill for new privacy legislation next week. — With reporting by Tim Forster at tforster@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

OPC seeks right for Canadians to push back on AI decision making

Broadcast | November 13, 2020

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OPC seeks right for Canadians to push back on AI decision making

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