On September 17, 2019, the IT/IP Section held a CPD program titled Blockchain & Artificial Intelligence Meet Privacy Law: An Interactive Conversation on Strategizing for Clients.Panelists, consisting of both legal practitioners and innovators, provided fascinating and real world insight into the issue of privacy and data protection and the need for legal certainty in innovation. This article highlights some of the key takeaways from the seminar.
The challenge with emerging technologies and an evolving legal landscape
Both AI and Blockchain use data in ways that challenge traditional understandings of privacy law. Permanence, access, and control, as well as new and hard to grasp data uses leave question marks for individuals, businesses and innovators about how to comply with not only Canadian, but international laws.
This has proven to be particularly problematic in Canada, where innovators have experienced challenges in obtaining clarity or certainty on how to proceed with the confidence that they will not find themselves on the wrong side of privacy law as it continues to evolve. Unfortunately, this has resulted in companies jurisdiction shopping for the safest place to continue, sometimes leading to a movement of operations overseas to avoid non-compliance. For example, in 2014, the founders of Ethereum – one of the most successful blockchain platforms in the world – had the opportunity to launch the platform in Canada as two of its founders were Canadian. However, partly due to Canada’s unclear regulatory guidance, the developers chose to implement the platform in Switzerland through a Swiss company, Ethereum Switzerland GmbH (EthSuisse).[1] Canada’s ambiguous legislative framework came, and continues to come, at a high price, resulting in the loss of technological innovation.
Tips for Counsel
Emerging technologies challenge legal professionals to rethink how they approach legal issues and protect their clients. Nevertheless, the considerations, tools and frameworks that legal professionals can employ are familiar.
Whether lawyers are assisting clients in-house, working in governmental fields, or providing advice to private clients, they must take steps to ensure their clients are best prepared for new developments. The following are some tips for counsel, provided by the program’s panelists:
- Be honest about blind spots: Identify where the law does not have solutions. Resort to basic principles of law in uncertainty, but tailor them. For example, tests to prove diligence, reasonableness, acting in the best interests of a constituency, and foreseeable risk of harm may help clients to prevent breaches of privacy laws and data breaches by third parties.
- Keep an open dialogue about best practices: Create structure when dealing with ambiguity and address the gradient of risk. Propose alternatives and solutions.
- Advocate for early and productive involvement: It is devastating when a platform is brought to a legal department’s attention in its final stages. This is particularly the case where a fundamental legal risk could have been addressed early in the development process but was not. Advocate for being in the room and participating in the design discussions. This will give the innovation the best chance of being on the right side of legal compliance and risk mitigation.
- Develop a data governance structure: Data mapping is time-consuming but worth it. Understanding how data is collected (and the legal basis for collecting data), and how it is used, stored, protected, accessed, and destroyed is a key step in protecting your client’s interests when it comes to managing risk in innovation. Engage with your client and ask detailed questions. Consider delving deeper into ethical data use and output, as well as security preparedness. Make a clear outline of storage and access to data.
- Engage the experts: Collaborate with data scientists if they are available, as well as others working closely with your client’s business to determine the quality of any data used or processed and its intended uses. The more you know the better you can prepare!
As lawyers, we have the tools to add value and assist our clients in understanding and mitigating the risks that rapid innovation and regulatory uncertainty create. It is our task and responsibility to ensure we use them in our clients’ best interests, while protecting privacy and promoting innovation.
About the Authors
Lisa Danay Wallace is an associate at WeirFoulds LLP focusing on information technology and intellectual property law. Agatha Suszek is currently an articling student at WeirFoulds LLP.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.