Practitioners of Computer & IT Law advise clients and, for some, conduct litigation on a number of matters, including the following: intellectual property—the protection of software, multimedia products, electronic databases, and other information-based assets through copyright, patent, trade secret, and trademark laws; criminal law—the manner in which Canada’s Criminal Code applies to computer crime activities such as hacking and virus implantation; regulatory laws—the regulation of data protection/privacy, the control of high technology exports, and the regulation of the internet; commercial law—the impact of contract, competition, sales, bankruptcy, and tax laws on the distribution and sale of computers and information-based products and services, including the drafting and negotiation of a wide variety of agreements for the supply of computer-based resources; and electronic commerce/internet law—the contract, evidence, libel, and other laws impacted and challenged by our transformation from a paper-based to a computer/electronic network–based society.
Artificial Intelligence in Canada
Canada has become a hub for artificial intelligence (AI), from Google’s (now canceled) smart Sidewalk Toronto project to the AI-Powered Supply Chains Supercluster (Scale AI) in Montreal, which focuses on artificial intelligence and supply chain technology. The Scale AI supercluster is one of five in Canada that Innovation, Science and Economic Development Canada launched in 2017, and in which it will invest up to C$950 million, to be matched dollar for dollar by the private sector.
There has been increased scrutiny on how AI is applied. As reported in Lexpert® Magazine, the Royal Canadian Mounted Police recently faced scrutiny for its use of facial recognition technology developed by a tech start-up called Clearview AI.1 Clearview’s software scrapes social media sites such as Facebook and Instagram for facial images and then learns to recognize them. A New York Times investigation revealed that the software had reportedly extracted more than three billion photos from public websites such as Facebook, YouTube, and Instagram and poured them into a database that has been used by more than 600 law enforcement agencies in the United States, Canada, and elsewhere.
The federal Office of the Privacy Commissioner began an investigation into whether the RCMP’s use of Clearview AI software violated federal privacy law, and the House of Commons Standing Committee on Access to Information, Privacy and Ethics launched a probe into the implications of facial recognition technology. The RCMP later said it would continue to use Clearview AI “in very limited and specific circumstances” and would work with Canada’s privacy commissioner on guidelines for the use of facial recognition technology.
AI and Privacy
With rapid developments in AI, Canadian regulators are looking at ways privacy laws can be strengthened. The Office of the Privacy Commissioner of Canada is currently engaged in legislative reform policy analysis of federal privacy laws, launching consultations on AI as it relates to the Personal Information Protection and Electronic Documents Act (PIPEDA).
In May 2020, Innovation, Science and Economic Development Canada created an advisory council on artificial intelligence and released its “Strengthening Privacy for the Digital Age” discussion paper. As part of Canada’s Digital Charter initiative, the paper outlined proposals to modernize the PIPEDA. “Strengthening Privacy for the Digital Age” focused on four key areas:
- enhancing individuals’ control;
- enabling innovation;
- enhancing enforcement; and
- clarifying PIPEDA.
CASL’s Private Right of Action Suspended
The Canadian federal government announced in 2017 that it had suspended the coming into force of the private right of action under Canada’s Anti-Spam Legislation (CASL). It remains suspended and may never happen.
This development was welcomed by many businesses and other organizations inside and outside of Canada that use e-mail or other electronic messaging to keep in touch with Canadian customers and other Canadian residents as it would have provided a class action mechanism against spam.
- Raymer, Elizabeth. “How technology is reshaping privacy.” Lexpert® Special Edition – Technology. May 12, 2020. https://lexpert.ca/article/how-technology-is-reshaping-privacy/.