On September 5, 2024, Canada's major trading partners including the United States, the United Kingdom, and the European Union signed the Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy, and the Rule of Law (CETS 225). The Convention on AI is a big deal. It is a comprehensive legal framework that aims to ensure that activities within the lifecycle of AI systems are aligned with core human rights, democratic values, and the rule of law. While Canada participated in negotiating the Convention, it did not sign it or announce whether it will consult on whether to sign and ratify the Convention. Importantly, while the federal government has taken important steps with respect to the use of AI within the government, to date, Canada's initiatives to regulate artificial intelligence via (the much maligned) AIDA and social media via the Online Harms Act fall woefully short of what would be needed to give full effect to the Convention.
What is the Convention on Artificial Intelligence and Human Rights, Democracy, and the Rule of Law
According to the Explanatory Report to the Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law (the "Convention on AI" or the "Convention"), the basic aim of the Convention is to ensure that the potential of artificial intelligence technologies to promote human prosperity, individual and societal wellbeing and to make our world more productive, innovative and secure, is harnessed in a responsible manner that respects, protects and is respectful of human rights, democracy and the rule of law. Consequently, the Convention on AI establishes a variety of legally binding obligations that aim to ensure that the activities within the lifecycle of artificial intelligence systems that have the potential to interfere with the respect for human rights, the functioning of democracy, or the observance of rule of law in both the public (and to a certain extent) private sectors are in full compliance with the Convention.
The Convention on AI requires parties to adopt legislative, administrative, or other measures to ensure that AI systems do not infringe upon human rights, democratic integrity, or the rule of law. It provides for a graduated and differentiated approach, meaning that the measures taken should correspond to the severity and likelihood of adverse impacts arising from AI.
Among other things, core features of the Convention on AI include the following.
- Protection of human rights: This includes maintaining existing human rights agreements, ensuring people's data is used appropriately, their privacy is respected, and AI is not used to discriminate against them.
- Protection of integrity of democratic institutions: This includes the protection of democratic institutions from being undermined by AI. It prohibits the use of AI systems to interfere with democratic processes, such as elections. This includes the ability for malevolent actors to disseminate misinformation and disinformation to undermine information integrity and create public distrust. Each Party must adopt or maintain measures that seek to protect its democratic processes in the context of activities within the lifecycle of artificial intelligence systems, including individuals' fair access to and participation in public debate, as well as their ability to freely form opinions
- Respect for the rule of law: Each Party must adopt or maintain measures that seek to ensure that artificial intelligence systems are not used to undermine the integrity, independence and effectiveness of democratic institutions and processes, including the principle of the separation of powers, respect for judicial independence and access to justice.
The Convention on AI's scope extends to activities within the entire lifecycle of AI systems, covering both public and private actors. Article 3 specifically outlines the Convention's reach into the private sector. The Convention applies to AI activities conducted by public authorities, as well as private actors acting on behalf of these authorities. Additionally, the Convention on AI "obliges all Parties to address risks and impacts to human rights, democracy and the rule of law in the private sector also for private actors to the extent these are not already covered" by the prior obligation. (It is not at all clear what this encompasses.)
While the Convention on AI has broad applicability, it does include some exceptions. For example, national security activities are excluded from its scope, provided they comply with international human rights law. Defense is also excluded. Furthermore, research and development activities involving AI systems that have not yet been made available for use are not subject to the Convention, unless such activities interfere with human rights or democratic processes.
Does Canada intend to ratify and implement the Convention on AI?
Canada participated in the negotiation of the Convention on AI. This is good and suggests that Canada is prepared to sign and ratify the Convention, although, as far as I know, it has not announced whether and when it will do so or how it will implement the Convention's obligations.
Canada's has initiated many consultations. However it has not had any formal consultation on whether to join the Convention or how it would be implemented. In this regard, two articles of the Convention on AI are pertinent.
- Article 19 requires "Public consultation". "Each Party shall seek to ensure that important questions raised in relation to artificial intelligence systems are, as appropriate, duly considered through public discussion and multistakeholder consultation in the light of social, economic, legal, ethical, environmental and other relevant implications."
- Article 3b states that "Each Party shall specify in a declaration submitted to the Secretary General of the Council of Europe at the time of signature, or when depositing its instrument of ratification, acceptance, approval or accession, how it intends to implement this obligation, either by applying the principles and obligations set forth in Chapters II to VI of this Convention to activities of private actors or by taking other appropriate measures to fulfil the obligation set out in this subparagraph."
AIDA was introduced as part of Bill C-27 with no formal public consultation. It has been widely criticized in both substance (or for lack thereof) and because it was not introduced after public consultation. Hopefully, the government will not repeat this mistake with the Convention on AI.
The government of Canada has made some inroads to regulating the uses of AI by the government. This includes its Guide on the Use of Generative AI, Directive on Automated Decision-Making and Algorithmic Impact Assessment Tool. The government has also committed publicly "to ensuring the effective and ethical use of AI, aligned with the Digital Nations Shared Approach to AI. The government also recently launched the Public Consultation on Government of Canada's artificial intelligence strategy for the federal public service (September 16, 2024).
Despite all of this, it is not at all clear that the government has any current intention of consulting on the Convention on AI or enacting legislation or implementing other measures to ensure the broader principles of the Convention on AI are met. AIDA, for example, clearly falls short as it is limited to regulating AI in the private sector, though it could include AI systems that are made available to public institutions such as AI systems used in health care, emergency response, or by the judiciary. Further the Online Harms Act, which deals with online safety, seems to have intentionally eschewed taking on threats to human rights, democracy, or the rule of law including in the public sector.
The Convention on AI is a big deal. Hopefully, Canada will take stalk and take appropriate steps to consult and implement its principles.
This article was first published on barrysookman.com .
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