Companies that harvest data are becoming more powerful, and Canadians are understandably anxious. As our economy becomes more data driven — and as data become more valuable — Canadians need a national data strategy that provides a common framework for data security and privacy, that prioritizes transparency and oversight in the processing of data and that transcends silos and jurisdictional barriers. Such a strategy must embrace an innovative future and, at the same time, protect our society’s most deeply held values.

Data are the fuel for the engines of big data analytics, artificial intelligence and other rapidly evolving and transformative technologies. The shift from the view of data as the “exhaust” of industrial and economic activity to an appreciation of data as assets in their own right means that they are harvested at every opportunity and in every context.

For example, the Internet of Things has expanded into homes, vehicles and public spaces, and many of the data collected are personal information, leading to growing privacy concerns. The few companies that harvest these data wield considerable or even, arguably, excessive market power. The ability of Canadian governments and businesses to control the data they need to prosper economically is diminishing.

While some new uses for data promise innovative solutions to long-standing problems, others raise concerns about ethics, bias, fraud and manipulation. The public pushback over Sidewalk Toronto’s proposed smart city development, combined with a scolding of Canada’s Smart Cities challenge by federal and provincial privacy commissioners, makes it clear that a national data strategy is needed — not just to support innovation, but also to provide a principles-based framework for innovation that is consistent with national values.

Fragmented and weak data governance threatens to undermine the trust of the public and businesses alike. Within this rapidly evolving context, Canada’s law and policy infrastructure struggles to keep up, adding urgency to calls for the development of a national data strategy.

In devising this strategy, the federal government should develop a statement of values for our digital society. This will inform how laws are developed, interpreted and applied, and will make explicit the principles that should guide the adoption of new technologies. These values should be drawn from existing instruments, including human rights legislation and the Canadian Charter of Rights and Freedoms, and should be adapted to the digital context.

Government must also reform Canada’s public and private sector data protection laws to deal with the realities of the big data environment. Reforms must enable technological advancement consistent with values that include, and go beyond, individual privacy.

Increasingly, public harms — algorithmic bias and the manipulation of individuals and groups — flow from the capture and use of personal information. New frameworks are required for the ethical use of data.

Canadian privacy law is out of date and no longer offers an adequate level of protection. If Canadian law does not meet the standard set by Europe’s new General Data Protection Regulation, the flow of data between Europe and Canada could be restricted, to the detriment of Canadian businesses. Enforcement is a key area of weakness. The Personal Information Protection and Electronic Documents Act’s consent-based regime may need to be supplemented, and there is considerable interest in consumer- and competition-friendly tools, such as data portability, that give consumers more control over their personal information. Increasingly, public harms — algorithmic bias and the manipulation of individuals and groups — flow from the capture and use of personal information. New frameworks are required for the ethical use of data.

Rapidly accumulating concerns over unfair terms in consumer contracts for digital devices and services, a lack of competition and deceptive commercial practices drive calls not just for better consumer protection laws, but also for a new federal focus in this area. Large concentrations of data in the hands of a few companies, combined with tight controls by those companies over access to and reuse of the data, also raise concerns.

Heightened attention must be paid to cybersecurity in the public and private sectors. To date, a rising number of data security breaches have been associated with individual harms or losses, as well as significant reputational and monetary losses for organizations in some cases. Cybersecurity threats can also cause much broader disruptions, including to core utilities, services and even democratic institutions. As technology becomes more deeply enmeshed with our homes, vehicles, governments and cities, cybersecurity becomes an increasingly urgent issue.

The government must set rigorous data security standards for big data and Internet of Things technologies with a view to providing appropriate levels of protection against economic, social and individual harm.

Intellectual property laws must also be adapted in ways that are sensitive to data and information as building blocks of expression, innovation and communication — and not just as assets to be owned and exploited. The government must set rigorous data security standards for big data and Internet of Things technologies with a view to providing appropriate levels of protection against economic, social and individual harm. At the same time, the government must ensure greater transparency and oversight of the algorithms used to process data and influence decision-making.

Both algorithms and the data that fuel them may be treated by companies as confidential information. Their place at the heart of the digital economy means that there is pressure to offer increasingly robust protection to trade secrets. At the same time, the use of data and algorithms to drive public and private sector decision-making creates a need for new mechanisms to ensure fairness, transparency and accountability.

The need to use copyright-protected works — including text, images and compilations of data — in artificial intelligence innovation has led to calls for copyright reform. Changes are needed to balance the rights of copyright owners with the rights of those who seek to use protected content for text and data mining. Reform is already under way in countries that seek to support innovation in these areas. Canada must also act.

In addition to outdated laws, our legal infrastructure has built rigid silos to address and contain certain issues. Many of the challenges we face in the big data era can no longer effectively be addressed in this manner. A national data strategy must give rise to laws and policies that transcend these silos, facilitate redress and minimize jurisdictional barriers.

The complex web of values impacted by data was evident in the Cambridge Analytica scandal, in which massive amounts of personal information were used to subvert democratic processes. It is also evident in concerns about how nontransparent and potentially biased algorithms or training data may harm individuals and communities.

Equality, freedom of expression, justice and transparency are all at stake. In a world where data are used to influence and manipulate to unprecedented extents, we need transparency and accountability not just to protect consumers, but also to protect communities and democratic institutions. The issue is not that we face a choice of either pursuing technological innovation or preserving human values; it is about deciding that we will pursue technological innovation that is consistent with and supportive of human values.

There is no justification for practices that lead to social exclusion and discriminatory outcomes. Inadequate data governance may be more of a brake on the economy than thoughtful and responsible governance. Data security breaches and irresponsible data practices undermine confidence and carry with them increasingly burdensome economic costs.

Ultimately, federal and provincial governments must develop laws and policies that allow Canadian governments and businesses to retain sufficient control over the data we need to govern ourselves and to flourish in a digital economy.

This article is adapted from Canada Next: 12 Ways to Get Ahead of Disruption, a Public Policy Forum series of 12 reports on disruptive challenges and opportunities facing Canada.

This article is part of the Nimble Policy-Making for a Canada in Flux special feature.

Photo: Shutterstock/By Gorodenkoff

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Teresa Scassa
Teresa Scassa is the Canada Research Chair in Information Law and Policy at the University of Ottawa’s Faculty of Law. She is a member of the Canadian Advisory Council on Artificial Intelligence and a senior fellow with the Centre for International Governance Innovation (CIGI).

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