All of Canada’s provincial, territorial and federal privacy watchdogs are imploring Ottawa to limit how law enforcement can use facial-recognition technology, seeking to minimize the sharing of data with businesses or other police agencies and restrict its use to investigating or preventing “serious” crimes.
Federal Privacy Commissioner Daniel Therrien, Ontario Information and Privacy Commissioner Patricia Kosseim and Quebec Access to Information Commission president Diane Poitras revealed their recommendations Monday while speaking to Parliament’s Standing Committee on Access to Information, Privacy and Ethics.
The commissioners proposed a four-pronged legal framework, including that Canadian law “explicitly define” when law-enforcement agencies can use facial recognition tech and limit its use to specific instances to avoid “generalized surveillance.” They also recommended that Canada update its privacy laws to address risks from such technology – such as placing guidelines around how long people’s images are stored – and that the country empower an independent oversight body to ensure it is used responsibly.
“Police agencies must establish that they are lawfully authorized” to use facial recognition, Ms. Kosseim told the committee. “This is not a given and cannot be assumed.”
Ms. Poitras pointed to the invasiveness of the technology. “It collects and uses unique characteristics of the body and turns them into data,” she said. When it’s used without a person’s knowledge, it “increases the risks of undue surveillance.”
The ethics committee began its formal study of facial recognition in 2021. Many of Canada’s privacy commissioners, meanwhile, have been warning for several years that the country needs to put guardrails around the technology – particularly since it was revealed that agencies including the RCMP, the Ontario Provincial Police and the Toronto Police Service have used such software from Clearview AI, largely through trial accounts.
Mr. Therrien and several provincial commissioners said last year that Clearview broke Canadian privacy laws. In December, the commissioners formally ordered Clearview to delete images of Canadians from its database.
“All of the privacy commissioners coming together on this particular topic and reaching consensus highlights the importance of the issue for Canadians’ privacy, and the lack of an adequate framework,” said Teresa Scassa, the Canada Research Chair in Information Law and Policy at the University of Ottawa. “This is the type of technology that raises such significant issues that there needs to be some kind of action at the federal level.”
It is not clear how long it would take for Parliament to assess the recommendations and potentially develop new regulations. The Trudeau Liberals tabled a rash of bills in late 2020 that would regulate tech companies, but let them die in Parliament before last fall’s election. Much of that legislation has yet to be reintroduced, including a long-awaited update to Canada’s private-sector privacy law.
While Canada has a patchwork of legislation across the federal and provincial governments that address some facial-recognition concerns, the commissioners have called for a unified approach.
“The laws are disparate, and use very ambiguous concepts and principles,” Mr. Therrien said in an interview Monday. He said he’s spoken with Innovation Minister François-Philippe Champagne and expects an update to Canada’s private-sector privacy law this calendar year. Justice Minister David Lametti has given him assurances that reform of Canada’s public-sector privacy law is “under serious consideration,” he added.
The Canadian Civil Liberties Association has called for facial recognition technology to be banned in any instance where it might constitute mass surveillance, and has insisted that a moratorium be imposed even on targeted uses until Ottawa outlines a clear legal framework. Brenda McPhail, director of the association’s privacy, technology and surveillance program, spoke to the ethics committee last month.
With guidelines more open than laws to varied interpretations, “the danger is that a way will be found to use the technology,” Dr. McPhail said in an interview. And the more the technology is used without guardrails, the more likely that Canadians could get used to potential surveillance, she added, pointing to the ubiquity of CCTV cameras in everyday life.
“The existence of guidance is better than the absence of guidance,” said Mr. Therrien, whose term as federal privacy commissioner ends in June. But he holds out hope for a proper legal regime to be introduced: “We think it’s in everyone’s interest that the law be much clearer as to when it can and cannot be used, because there are some cases where it should be used.”
At a separate ethics committee meeting last week, Paul Boudreau, the RCMP’s acting deputy commissioner of specialized policing services, acknowledged that facial-recognition technology needs some constraints: “There are gaps in these technologies that we must assess and make sure they’re used, they’re used properly, especially from my perspective, from a law-enforcement perspective.”
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