Ritika Sharma explores the legal ramifications of a world dominated by artificial intelligence

Technology is changing the world around us with increasing rapidity. New technologies are being incorporated more and more into our daily lives. Computer programs, algorithms and robots are replacing simple human activities. And artificial intelligence (AI) lies on the cutting edge of the technological spectrum in the industry today. Simply put, AI is the capability of a machine to imitate intelligent behaviour. The era of AI has begun, whether we like it or not.

Computer scientist John McCarthy coined the term “artificial intelligence” at a Dartmouth Conference at the Massachusetts Institute of Technology, defining AI as the science and engineering of making intelligent machines, especially intelligent computer programs. It is related to the similar task of using computers to understand human intelligence, but AI does not have to confine itself to methods that are biologically observable. It’s an umbrella term that refers to information systems inspired by biological systems, and encompasses multiple technologies including machine learning, deep learning, computer vision, natural language processing, machine reasoning, and strong AI.

Is AI regulated?

AI is poised to have a transformative effect on numerous industries, and is already permeating through all aspects of society, and in our everyday lives. AI adoption is so widespread that hardly any sector or industry is untouched, from education, healthcare, transportation, defence and security, and virtual reality to decision making and policy making.

AI will probably play a major role in shaping the evolution of various industries. But, if it is not regulated properly, it could lead to unmanageable implications, and it’s therefore not surprising that the Government of India is looking to regulate AI with a proper legislative framework to ensure that AI tech is properly developed and implemented.

The absence of a regulated framework for AI is not an option. For instance, let us consider a hypothetical scenario: If a driverless car running on an AI algorithm causes a human fatality or damage to public or private infrastructure, then who is to be held accountable for the damages or consequences? Given that AI is not a legal person, will there be no action against anybody? Given that Saudi Arabia has accepted an AI-based robot, Sophia, as its citizen, can other countries follow suit and indict AI for such crimes? These situations raise more questions than answers.

Countries around the world are discussing how to regulate AI along with their increasing awareness of the potential economic and social benefits of deploying AI and AI-based applications. Numerous states have taken progressive strides in terms of preparing policies in the past couple of years, and China, the UK, France and Japan have all published their respective strategies recently.

The Constitution of India devises the legal framework allocating rights and obligations to persons and citizens of India, but the courts of India are yet to adjudicate upon and determine the legal status of AI. India can learn from the experiences of countries such as Japan, the US and China, which are all in more advanced stages of regulation due to the higher penetration of these technologies.

In August 2017, India’s Ministry of Industry and Commerce has constituted the 18-member Taskforce on AI for India’s Economic Transformation – consisting of experts and government bodies including the National Institution for Transforming India’s (NITI) policy commission, the Ministry of Electronics and Information Technology, the Department of Science and Technology, the Unique Identification Authority of India (UIDAI), and the Defence Research and Development Organization – to ascertain the possibilities of making use of AI-based applications for development across various sectors. This taskforce recently released a report detailing certain recommendations that they made to the Ministry of Industry and Commerce on formulation of an AI policy in India.

Despite a lot of deliberation on the technological aspects, no action has yet been taken to address the immediate hurdle; a legislative framework governing AI is a must if it is to be beneficial to society.

A legislative framework

Due to the transformative nature of AI-based technologies, they have the potential to pose multifarious legal challenges in the future. It is challenging to predict how the legal sector will function with advances in AI and vice versa depending on social, cultural, economic and other factors. Even though the requirements for formulating and developing a legislative framework concerning AI may be numerous, there are prominent legal issues to address.

First and foremost, there is no existing law that recognizes AI as a “legal person”. Given that Sophia has been granted citizenship in Saudi Arabia, it becomes extremely important that we establish a jurisprudence around “legal personality” in India as well, such that the specific rights and obligations of an AI can be demarcated.

Another issue emanating from this one is that as long as the legal personality of an AI is not established, it is impossible to attribute any form of liability to an AI, in case of any harm inflicted, or a crime committed, by an AI. Until the liability of an AI or the legal personhood of an AI is pronounced, any contract involving an AI presence can be questioned, as the same would not be regarded as a valid contract in India.

There are also significant issues concerning the volumes of data stored by an AI. This issue gains particular significance in light of the right to privacy, which was recently granted the status of a fundamental right under the Constitution of India. It is therefore needless to emphasize the importance of formulating a set of rules or guidelines to regulate data stored and used by AI. The Personal Data Protection Bill, 2018, is already in place and perhaps the same could be augmented to accommodate this issue.

Impact on legal sector

The history of humanity is testament to technology reshaping the way we do things, and AI is proving no different. Until recently, lawyers used to rely on the ability of an adept paralegal for sifting through data and pointing out irregularities or wording to work upon while drafting major agreements. But, as the complexity of laws and the rate of data capture increases, the scope and human ability to sift through these mountains of data have been increasingly put into question. Today, the legal domain faces a glaring bottleneck, namely the lack of the ability to process large quantities of data sets on a daily basis.

The stakes are higher than ever, with little or no margin for human error. Compound that with the ever-changing legal landscape, and local regulations and judgments, and it is increasingly difficult for human-based interventions to update legal paraphernalia across documents and transactions. In other words, in the legal fraternity as with others, the data explosion is proving too much for humans to handle.

AI seeks to answer such problems for the modern enterprise. AI can help the legal sector by providing major insights within a matter of seconds. For instance, by automatically updating the documents or providing the latest regulatory rulings, these algorithms are increasingly making human-based interventions obsolete. Not only does AI have the advantage of being error-proof, it is proving to be cheaper compared to the costly man-hour rates charged by leading law firms across the globe. There are certain AI software programs that have been developed to harness the newest enabling technology, in combination with domain expertise, to provide legal professionals with greater clarity, efficiency and understanding of agreements that they confront most frequently in practice. Furthermore, there are many uses of such software and technology; the forms and clauses are assembled from the automated analysis of thousands of negotiated agreements, providing lawyers with an immediate sense of which clauses tend to be heavily negotiated and which are not.

What is unsettling, however, is that the legal fraternity is merely part of a larger trend of cross-industrial automation powered by AI-based technologies. With manufacturing, pharmaceutical and other industries increasingly adopting this new global standard of data synthesis, the legal fraternity cannot afford to fall behind. The adoption of AI in the legal fraternity is a natural stepping stone along its evolutionary path.

To sum up, AI provides excellent opportunities in the legal fraternity including, but not limited to, reviewing agreements, conducting legal research and even predicting the probable outcome of certain cases being adjudicated before the courts. AI-related tools also aid in case-law searches, or search and registration of an intellectual property right. There are some legal offices that are also making use of AI-based applications to help prepare invoices and arrive at an accurate billing, which is an arduous task for law firms.

In these circumstances, the use of AI-based tools may prove to be an innovation in the way the legal sector operates in the times to come. However, there remain many nuances that are still uncertain and difficult to predict.

The dependency of humans on machines is only prone to increase with time, so it is important to ensure that current concerns with regard to AI are adequately addressed. It is highly recommended that draftsmen and regulators are cognizant of the fact that a perfect balance has to be maintained between protecting the rights of the people, and fostering advancement of technology in the country. Failure to strike this balance may have an adverse effect on either of the two; the spirit of using such technology should be to ensure that AI proves to be a boon, not a bane.

Ritika Sharma is manager (M&A) – legal at Cipla.

3 Comments

  1. Went through your article. Few points to ponder.

    1. AI is not something which makes computer bigger than or beyond the control of mankind. Its created and still controlled by humans only. The term ” Machine Learning” is a new epithet for what is conventionally called ” self evolving”. By feeding more and more data, information and logical functions into a machine it can be made to become self evolving OR what the new age generation says “Machine learning”.
    2. Because AI will not become a master to win over the universe (mankind) it still stays in some sort of Master slave configuration Or so to say Principle-Client relationship. Very clearly in such a case the indirect or Vicarious liability for the client will lie on the principle or that of a slave on the master. No new legislation is envisaged for such a creation.
    3. Now coming to the term “Legal person” as the Robot Sophia in Saudi has been christened and has been given citizenship. A duly incorporated company is also a legal person or a juristic person having its own entity, rights and liabilities. And we have Laws for that in Company law and various other Acts. The status of A machine under AI and a incorporated company is same both being Legal person. Just as the company law puts liability on Directors of the company for various liabilities of the company similarly the owner(s) of a machine/system with AI can be made responsible/accountable/liable. Its wrong to construe AI as a fired missile no longer in control of the firing hands. No absolutely not. In your example of auto driven car on AI if it commits some accident then surely the liability should lie with the owning company or the individual owning it. After all we are not producing AI machines to have a place of their own in the society leaving them to become their own masters or sovereign machine men. They will at best be juristic persons not humans.
    4. A more dangerous and concerning issue is of producing designer babies through genetic engineering. AI is nothing before it. Genetic engineering and causing to make tailor made babies will ACTUALLY need appropriate legal handling. That is the most worrying technological development that needs Jurisprudence and yet the world is not able to find a proper legal framework to look at it. AI is a small fry in the pan before this issue.
    AI, in my opinion, does not need a separate Law since it is not something beyond the control of its master (human). As in case of other legal persons (such as a company or a robot) AI can be seen from that angle and can be properly handled in the existing legal framework and jurisprudence.

  2. Brilliant article on a very crucial issue!! I fully agree with your point that with the rapid advancement in AI & big data space, the laws and regulations have to keep pace. Although, as pointed out by you, countries are trying to address this gap- examples of India (NITI policy commission, personal data protection bill) and strategies by China & UK. But a major concern amongst global think-tanks is that since major technology companies which make AI-products are global in nature (Google, Facebook, Amazon, etc.), a coherent global legislative framework is required. For this, the only way out seems to spread global awareness via articles such as this on the issue and hope that perhaps some-day UN and it’s member nations will take up the issue as seriously as that of global trade.

  3. I still do not think there is any necessity for additional or special legislation on AI. We have enough laws already in our legal system to tackle such issues as AI. What have we done with the already existing laws that are there for cyber crimes and special issues. I think more than bringing new legislation its important to understand the problem and then correct implementation of Laws. Both of you seem to be too much academic in approaching a real life issue. AI is not a master it is still an assistant for human. You can not bring a law to punish machinery. As such our legal system is too complicated for proper dispensation of justice. And you are advocating to further complicate it. Its more important to properly understand the problem and interpret the existing laws for proper adjudication. Making new laws is no solution. Both of you sound too academic to an otherwise real worl issue that can be tackled within the given legal framework provided we apply the understanding and interpretation of Law properly

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