Archive for August, 2022

The Artificial Intelligence and Data Act… coming soon to AI near you

In June, 2022, the Government introduced Bill C-27, an Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act, and the Artificial Intelligence and Data Act. A major component of this proposed legislation is a brand new law on artificial intelligence. This will be, if passed, the first Canadian law to regulate AI systems.

The stated aim of the Artificial Intelligence and Data Act (AIDA) is to regulate international and interprovincial trade and commerce in artificial intelligence systems. The Act requires the adoption of measures to mitigate “risks of harm” and “biased output” related to something called “high-impact systems“.

Ok, so how will this work? First, the Act (since it’s federal legislation) applies to “regulated activity” which refers to specific activities carried out in the course of international or interprovincial trade and commerce. That makes sense since that’s what falls into the federal jurisdiction. Think banks and airlines, for sure, but the scope will be wider than that since any use of a system by private sector organizations to gather and process data across provincial boundaries will be caught. The regulated activities are defined as:

  • (a) processing or making available for use any data relating to human activities for the purpose of designing, developing or using an artificial intelligence system;
  • (b) designing, developing or making available for use an artificial intelligence system or managing its operations.

That is a purposely broad definition which is designed to catch both the companies that use these systems, and providers of such systems, as well as data processors who deploy AI systems in the course of data processing, where such systems are used in the course of international or interprovincial trade and commerce.

The term “artificial intelligence system” is also broadly defined and captures any “technological system that, autonomously or partly autonomously, processes data related to human activities through the use of a genetic algorithm, a neural network, machine learning or another technique in order to generate content or make decisions, recommendations or predictions.”

For anyone carrying out a “regulated activity” in general, there are record keeping obligations, and regulations regarding the handling of anonymized data that is used in the course of such activities.

For those who are responsible for so-called “high-impact systems“, there are special requirements. First, a provider or user of such a system is responsible to determine if their system qualifies as a “high-impact system” under AIDA (something to be defined in the regulations).

Those responsible for such “high-impact systems” must, in accordance with the regulations, establish measures to identify, assess and mitigate the risks of harm or biased output that could result from the use of the system, and they must also monitor compliance with these mitigation measures.

There’s more: anyone who makes a “high-impact system” available, or who manages the operation of such a system, must also publish a plain-language description of the system that includes an explanation of:

  • (a) how the system is intended to be used;
  • (b) the types of content that it is intended to generate and the decisions, recommendations or predictions that it is intended to make; and
  • (c) the mitigation measures.
  • (d) Oh, and any other information that may be prescribed by regulation in the future.

The AIDA sets up an analysis of “harm” which is defined as:

  • physical or psychological harm to an individual;
  • damage to an individual’s property; or
  • economic loss to an individual. 

If there is a risk of material harm, then those using these “high-impact systems” must notify the Minister. From here, the Minister has order-making powers to:

  • Order the production of records
  • Conduct audits
  • Compel any organization responsible for a high-impact system to cease using it, if there are reasonable grounds to believe the use of the system gives rise to a “serious risk of imminent harm”.

The Act has other enforcement tools available, including penalties of up to 3% of global revenue for the offender, or $10 million, and higher penalties for more serious offences, up to $25 million.

If you’re keeping track, the Act requires an assessment of:

  • plain old “harm” (Section 5),
  • “serious harm to individuals or harm to their interests” (Section 4),
  • “material harm” (Section 12),
  • “risks of harm” (Section 8),
  • “serious risk of imminent harm” (Sections 17 and 28), and
  • “serious physical or psychological harm” (Section 39).

All of which is to be contrasted with the well-trodden legal analysis around the term “real risk of significant harm” which comes from privacy law.

I can assure you that lawyers will be arguing for years over the nuances of these various terms: what is the difference between “harm” and “material harm”, “risk” versus “serious risk”? and what is “serious harm” versus “material harm” versus “imminent harm”? …and what if one of these species of “harm” overlaps with a privacy issue which also triggers a “real risk of significant harm” under federal privacy laws? All of this could be clarified in future drafts of Bill C-27, which would make it easier for lawyers to advise their clients when navigating the complex legal obligations in AIDA

Stay tuned. This law has some maturing to do, and much detail is left to the regulations (which are not yet drafted).

Calgary – 16:30 MT

No comments