Recognizing Operators’ Duties to Properly Select and Supervise AI Agents – A (Better?) Tool for Algorithmic Accountability

Abstract

In November of 2020, the Privacy Commissioner of Canada proposed creating GDPR-inspired rights for decision subjects and allowing financial penalties for violations of those rights. Shortly afterward, the proposal to create a right to an explanation for algorithmic decisions was incorporated into Bill C-11, the Digital Charter Implementation Act. This commentary proposes that creating duties for operators to properly select and supervise artificial agents would be a complementary, and potentially more effective, accountability mechanism than creating a right to an explanation. These duties would be a natural extension of employers’ duties to properly select and retain human employees. Allowing victims to recover under theories of negligent hiring or supervision of AI-system-as-agents would reflect their increasing (but less than full) autonomy and avoid some of the challenges that victims face in proving the foreseeability elements of other liability theories