This article is written by Simran Bherwani, a first year student of National law University, Jodhpur
Introduction
The fast paced growth of technology in today’s world has led to stupendous changes in our quotidian life. Artificial Intelligence plays a colossal role, which is often overlooked due to the desensitization of people. Thus, there is an imminent need to understand Artificial Intelligence, how it is regulated and whether it can be made liable in cases of the commitment of a wrongful act or omission in the context of Indian laws.
Understanding Artificial Intelligence
While there is no straitjacket formula to apply when it comes to determining what is Artificial Intelligence, in laymen’s terms, A.I. is “the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings.”[1] Essentially, it is an emulation of human intelligence. It is programmed in order to function like humans and imitate their behaviour. The famous Turing test holds that AI is achieved when a person is unable to determine whether a response to a question he or she asked was made by a person or a computer.[2]
The spam filter in our e-mail, which segregates important mail from the junk is an example that attests to the work of an A.I. Others include popular social media platforms like Instagram, Facebook, Pinterest, and so on. These platforms employ the use of Artificial Intelligence to personalise our feed and display results which cater to our preferences. the autocorrect feature enabled on texting platforms is another example. Additionally, a few more examples include online shopping websites, plagiarism checkers and so on.
While A.I. has proved to be advantageous in diverse aspects, it can also be a scourge in the hands of many. Over time, it has been used to commit various crimes in the form of phishing. It is a technique used to lure customers into revealing their personal details, which is used maliciously - creating malware, hacking sensitive information and so on. It has been an impetus not only to cybercrime but also to crimes of other kinds.
For instance, the crime of trafficking illegal drugs has received a boost with the introduction of AI. A real life incident to illustrate the same would be when a robot, going by the alias “Random Darknet Shopper”, set up by a Swiss art group, managed to buy Ecstasy, a Hungarian passport and a baseball cap with a built-in camera.[3] Even though, the robot was arrested by the concerned authorities, it was later, returned to the artists. Had this been a human being, he would have been liable for penalty and possibly, even jailed. Because of cases like these, the need to understand the regulation of Artificial Intelligence is of utmost necessity.
Regulation of Artificial Intelligence
"Success in creating AI would be the biggest event in human history. Unfortunately, it might also be the last, unless we learn how to avoid the risks.”[4]
Artificial Intelligence, although introduced in the 1950s, has been implemented only in recent times. It is still a relatively new field due to the wide ambit it entails. A technology of this kind has a far-reaching potential - to an extent that is, for now, incomprehensible to man. Thus, the need to regulate it becomes the need of the hour. However, every part of the world has a different stance on the issue. A study panel held that “attempts to regulate AI in general would be misguided, since there is no clear definition of AI (it isn’t any one thing), and the risks and considerations are very different in different domains.”[5]
There are some who engage in debates and discourses over the issue of whether AI needs regulation in the first place, claiming that, unlike human beings, it has no objectives of intentions by its own volition. Then, there are some who take the lead in formulating and enacting a detailed regulation on data usage and privacy in the world.[6] There are also some countries like the United States, who maintain a “light” regulatory posture when it comes to laws around AI.[7]
Countries like China, Japan, Korea and Germany have already developed laws on delf driven cars.[8] Herein, emerges a need to examine the situation in our own country.
Compliance with Indian Laws
While legal scholars all around the world grapple with the issue of liability of Artificial Intelligence, one of them held that “when an AI entity establishes all elements of a specific offense, both external and internal, there is no reason to prevent imposition of criminal liability upon it for that offense.”[9]
However, there are many problems standing in the way of determining criminal liability. The foremost issue being, the lack of a proper definition of Artificial Intelligence. Secondly, the question of determination of mens rea. Mens rea is a legal doctrine applied while deciding criminal prosecution. It refers to the intention of the accused while committing the crime. However, in the field of Artificial Intelligence, the issue arises of how to determine the intention of the same and also, if an intention can be ascribed to it.
Nevertheless, these issues fail to hold good in India due to the lack of any specific law dealing with Artificial Intelligence or its related entities like Machine Learning and Big Data. While it can be implicitly read along with established legislations relating to Copyright, Patents, Trade and Licensing, there is no express mention of it anywhere.
Conclusion
Although, India has considered the importance of Artificial Intelligence in different sectors,[10] there has been no introduction of legislation. Hence, this need for the establishment of a comprehensive legislation is the need of the hour. In the creation of employment, the lacuna between current regulation and progress in Artificial Intelligence can act as a barrier. It is also imminent to amend the current laws in order to catch pace with development in the field of Artificial Intelligence and its purpose. A situation without accountability and due consideration of the legal implications of Artificial Intelligence can prove to be detrimental in the future.
[1] Artificial Intelligence, Britannica (15th ed. 2015) [2] Amitai Etzioni and Oren Etzioni, Should Artificial Intelligence be regulated? (2017) https://issues.org/perspective-should-artificial-intelligence-be-regulated/ [3] Arjun Kharpal, Robot with $100 Bitcoin Buys Drugs, Gets Arrested, CNBC (Apr. 22, 2015, 5:09 AM), https://www.cnbc.com/2015/04/21/robot-with-100-bitcoin-buys-drugs-gets-arrested.html [4] Stephen Hawking, Transcendence looks at the implications of artificial intelligence- but are we taking AI seriously enough? The Independent (2017), https://www.independent.co.uk/news/science/stephen-hawking-transcendence-looks-implications-artificial-intelligence-are-we-taking-ai-seriously-enough-9313474.html [5] Eric Horvitz, One hundred year study on Artificial Intelligence (2016), http://ai100.stanford.edu/2016-report [6] European Union, White Paper on Artificial Intelligence: Public Consultation towards a European approach for excellence and trust (2020), https://ec.europa.eu/digital-single-market/en/news/white-paper-artificial-intelligence-public-consultation-towards-european-approach-excellence [7] Kathleen Walch, AI Laws are coming, Forbes Magazine (2020), https://www.forbes.com/sites/cognitiveworld/2020/02/20/ai-laws-are-coming/?sh=6a5ea3dfa2b4 [8] Mohshina Irshad, Artificial Intelligence, the law and the future (2019) [9] Gabriel Hallevy, The Criminal Liability of Artificial Intelligence Entities (2010) [10] NITI Aayog, National Strategy for Artificial Intelligence (2018)
Comments