Booming Dependency on AI and Privacy- Analysis of International and Indian Legal Framework (Part-3)

This Article— Booming Dependency on AI and Privacy- Analysis of International and Indian Legal Framework— is divided into three segments, the readers are reading the Third Part to the Article that contains, India on AI Privacy Issues Law, and Suggestions. To read the first segment on the Introduction to the topic, and an analysis on Data, Artificial Intelligence and Privacy please click here. Similarly to read the Second segment on AI and International Law- Data Protection and Regional Laws please click here.

India on AI Privacy Issues- Law

Artificial Intelligence systems are capable of making meaningful interferences, classifications, and categorizations, and their use is carried out across sectors, from advertising to law enforcement. The perils of FaceTagr have given their plans to expand to other states in South India. Punjab uses AI system which adopts a smart policing approach using proprietary, advance hybrid AI technology to digitize criminal records, and facilitates criminal search by using technologies such as facial recognition to predict and recognize the criminal activity. The remarkable judgment upheld the right to privacy in cyberspace is K.S. Puttuswamy v. Union of India, wherein it is said that informational privacy is the fundamental right under the Constitution of India. Court narrated that: 

“Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non- state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state.” 

In furtherance, the Union government has appointed a committee to review and recommend data protection norms in the country just released a draft of Personal Data Protection Bill, 2018 which is under the Chairmanship Justice B.N. Srikrishna, referred to as the Srikrishna Committee.

Through legislative and judicial initiatives are taken to face the artificial intelligence era, India is facing the following challenges: 

1. AI-based applications to date have been driven largely by the private sector and have been focused primarily on consumer goods. The emergent scale and implications of the technology make it imperative for policymakers in government to take notice.
2. Early lessons of AI success in the United States, China, South Korea, and elsewhere offer public and private funding models for AI research that India should consider.
3. The sequential system of education and work is outdated in today’s economic environment as the nature of jobs shifts rapidly and skills become valuable and obsolete in a matter of years.

The major concerns about data privacy and AI can be briefly stated as follows: 

1. Companies are harvesting a significant amount of consumer data and using it inappropriately to gain insights about consumers. 
2. Companies are gaining unfair competitive advantages from large sets of data.

India’s NITI has identified various steps to deal with privacy issues in cyberspace during the artificial intelligence era can be mentioned as follows. 

1. To establish a data protection framework with legal backing i.e. per the 7 principles in data protection and privacy as enumerated in the Srikrishna Committee. The principles are informed consent, technology agnosticism, the data controller, accountability, data minimization, holistic application, deterrent penalties, and structured enforcement.
2. Establish sectoral regulatory frameworks
3. Benchmark national data protection and privacy laws with international standards
4. Encourage AI developers to adhere to international standards
5. Encourage self-regulation
6. Invest and collaborate in privacy-preserving AI research
7. Spread awareness

Security in AI is another alarming component is cyberspace wherein the NITI ayog through National Strategy for Artificial intelligence has narrated possible framework to tackle the issue. It includes:

1. Negligence test for damages caused by AI software, as opposed to strict liability. This involves self-regulation by the stakeholders by conducting damage impact assessment at every stage of development of an AI model.
2. As an extension of negligence test, safe harbors needed to be formulated to insulate or limit the liability so long as appropriate steps to design, test, monitor, and improve the AI product have been taken.
3. Framework for the determination of damages needed to be developed so that the parties involved bear proportionate liability, rather than joint and several liabilities, for harm caused by any product in which the AI is embedded, especially where the use of AI was unexpected, prohibited, or inconsistent with permitted use cases.
4. Actual harm requirements policy may be followed so that a lawsuit cannot proceed only on speculative damage or fear of future damages.

The NITI Ayog in its Strategy for New India @ 75 deals with Digital connectivity across the country. According to Internet Trends 2017 report, 27 percent of India’s total population uses the internet which represents 4 percent exponential growth compared to the penetration in 2009. The Digital India scheme launched in 2015 brought the topic of digitalization to the forefront of public discourse. In 2011, the scheme for the creation of a National Optical fiber network was initiated to connect across the country with high-speed internet. The National Information Infrastructure will ensure the integration of networks and cloud infrastructure to provide high-speed connectivity to various government departments up to the panchayat level.

NITI Ayog in November 2018 suggests various legal, judicial, and policy reforms for better data security and promote artificial intelligence. The legal reforms include:

1. Create a repository of all existing central and state laws, rules and regulations
2. Repeal redundant laws and introduce a new initiative to remove restrictive clauses in existing laws
3. Changes in criminal and procedural laws under the artificial intelligence era.
4. Create a law-abiding society and awareness programs with the advancement in developments
5. A timeline for the implementation of necessary amendments should be stipulated.
6. Continuing legal education in selected areas should be made mandatory for lawyers and judges of professional conduct and ethics need to be drawn up and implemented.
7. The Arbitration and Conciliation Act 1996 shall be amended to make India a robust center for institutional arbitration, both domestic and international.

The various judicial reforms suggested include:

1. Judicial decisions need to take account of their economic and social impact, especially in cases pertaining to contract, labor, tax, constitutional and other issues as observed by the Supreme Court in a recent judicial decision.
2. Facilitate video-conferencing facilities to assist in speedy access to justice and to minimize logistical issues.
3. Prioritize court process automation and Information and Communication Technology enablement for electronic court and case management, including electronic management of court schedules and migration of all courts to the unified national court application software.

Police reforms

1. Model Police Act 2015 can serve as the basis for legislative reform as it modernizes the mandate of the police, puts in place a governance mechanism that insulates the police from political interference, and provides for measurement and tracking of police performance.
2. A separate cadre for exclusively looking into cyber-crimes, cyber threats, and fraud need to be developed.
3. A separate National Cyber Security Division may be considered to support and coordinate initiatives of state governments in handling in cyber-crimes. A separate dashboard for interface with citizens for reporting and redressal of cyber-crimes may be considered. Besides, big data analytics may be utilized in a big way. The Crime and Criminal Tracking Network and Systems project may be completed along with the launch of phase 2 for linking of crime, prosecution, and court and prison database.

Recently NITI Ayog in its Compressed Book titled “Health System for a New India: Building Blocks Potential Pathways to Reform” has the following concerns on artificial intelligence and privacy.

1. It suggest for application of AI in Clinical Decision Support System to aid physician for his clinical tasks.
2. Health Insurance Information Systems shall have the application of artificial intelligence, cybersecurity, and fraud detection technologies.

Suggestions

The concept of artificial intelligence and privacy and its development in the immediate decades has thrown the entire globe to live life in fantasy and achieve everything effortlessly in a fraction of time. There are laws at international, regional, and at the national level to promote and regulate general aspects of artificial intelligence and application on big data. The legal framework concerning the privacy of data and its protection is under evolution. Moreover,  gaps concerning the clarity of various privacy issues are still present. The judicial system through various decisions has solved circumstantial disputes about data privacy and protection in cyberspace. 

Since the elevation of the globe to cyberspace has evaporated stupendously due to which the offenses involve multiple nations, laws on artificial intelligence and data has to be modified to face and solve in a futuristic sense. Few modifications required can be briefly stated as follows: 

1. There is a need for uniform legislation at the international level and adjudicatory authority to govern, regulate, and adjudicate the offense and offenders involve multiple nations.
2. Special Legal Research Committee has to be established at the international, regional, and national level to chase the development in artificial intelligence and its implications in data protection and privacy, to carve out amicable legislative amendments with phases of development.
3. Education and awareness of the digitalization era and its implications have to be made at the grass-root level to train users self-sufficient to protect their privacy to a notable extend.
4. Strict implementation of extradition treaties shall be ensured between nations to punish the offenders of cyber-crime within no lapse of time.
5. There is a great need to craft a law regulating different sectors to make sure that the artificial intelligence shall not dominate human beings and does not violate the law and balance of nature.

Though artificial intelligence has paved another level of development to the globe, there exists an alarming need to set back ourselves from too much dependent on artificial intelligence in cyberspace so that we will not forget the base character of human beings both physically and mentally.

This Article is written by Anu Bhuvanachandran, Partner, Outsay Legal, New Delhi, Advocate, Supreme Court of India; BBA.LLB (HONS) and LLM (Corporate and Cyber Laws).

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