THE WHY AND HOW OF REGULATING ARTIFICIAL INTELLIGENCE

Authors: Kriti Chaturvedi, HNLU

Rishika Nagpal, SLS, Pune

Rakesh Lakra, JLU, Bhopal


Editor: Anoushka Chauhan, NALSAR

INTRODUCTION

Artificial intelligence is a branch of computer science, which is capable of performing tasks which require human intelligence. It is a set of algorithms and intelligence to try to mimic human intelligence. It is an interdisciplinary science with multiple approaches, but advancements in machine learning and deep learning are creating a paradigm shift in virtually every sector of the tech industry.

Artificial intelligence generally falls under two broad categories:

  • Narrow AI: Sometimes referred to as "Weak AI," this kind of artificial intelligence operates within a limited context and is a simulation of human intelligence. Narrow AI is often focused on performing a single task extremely well and while these machines may seem intelligent, they are operating under far more constraints and limitations than even the most basic human intelligence.

  • Artificial General Intelligence (AGI): AGI, sometimes referred to as "Strong AI," is the kind of artificial intelligence that’s mostly seen in movies. AGI is a machine with general intelligence and, much like a human being, it can apply that intelligence to solve any problem.

There is unstoppable rapid adoption of artificial intelligence worldwide by the enterprises and organisations. With this growth of adoption comes strain as existing regulation and law struggle to deal with emerging challenges. As a result, governments around the world are moving quickly to ensure that existing laws, regulation, and legal constructs remain relevant in the face of technology change and can deal with new emerging challenges posed by AI. AI is an emerging issue in jurisdictions globally. Since early 2016, many national, regional and international authorities have begun adopting strategies, actions plans and policy papers on AI[1]. Still there is no specific provision for the governance of AI but every country has made some regulation to look at the malfunctions and to protect them.


It is correctly said that if AI is not regulated properly, It might have unbridled implications. For example, electricity supply suddenly stops while a robot is performing the surgery and the access to the doctor is lost. Several questions like these have been confronted in the courts of the USA and Germany. All countries, including India, need to be legally prepared for the advancement of technological AI in every sphere, and need a regulatory mechanism to it.


Challenges of AI

Several challenges plague the AI-legal scene. For one, predicting and analysing legal issues and their solutions, is not very simple. Criminal law - for the sake of an example here - might face drastic challenges, such as the question of who liability will be imputed on if an AI based car gets into an accident harming humans.


While the Indian scenario on the regulation of AI hasn’t progressed astronomically, in other countries that are progressing speedily in terms of technology and the warranted regulation of the same, there is adequate discussion on the challenges and the ways to resolve them. Germany came up with ethical rules for autonomous vehicles stipulating that human life should always have priority over property or animal life. China, Japan and Korea are following Germany, regarding the same.


However, in India, a policy paper was released by NITI Ayog, ‘National Strategy for Artificial Intelligence’ in June 2019. The 2019 budget proposed to launch a national programme on AI. While these developments are taking place, there is no comprehensive legislation to regulate this industry, that could effectively unify all recourse[2].


Attribution of Liability

The attribution of liability should be the same as what would be expected out of a human. The liability for a driverless car causing an accident would be of the same manner as that of a human driver (assuming the presence of foreseeability of the consequences). However, the problems with this are bi-faceted. Firstly, affording a legal personality status to machines and robots akin to humans in law must be looked at[3]. Secondly, the problem of the distribution of the liability comes into question - between the developer of the technology, the owner of the car, and the third party user.


AI and the Law

Companies dealing with artificial intelligence are searching for new ways for the development of technology for providing speed and accuracy in the legal profession. Various AI legal softwares are being developed as far as drafting work is concerned. It is also finding ways to support lawyers and clients in the same way, hence saving time for both. There is little contention to the notion that robots are unlikely to replace lawyers in courts as far as oral pleadings are concerned. But as far as drafting is concerned, Artificial Intelligence could provide a significant boon if harnessed properly. There has been growing interest in Artificial Intelligence in law and has been gradually transforming the legal industry in a way that it has less demand for paralegals. Some of the ways in which Artificial Intelligence helps legal practitioners is through legal research and due diligence conducted by lawyers, additional insights, shortcuts through analytics, automatic process for drafting contracts and petitions, etc. Over the years we have seen many developments and amendments in legal provisions due to these developments. For example, an Ohio-based law firm named ‘Baker and Hostetler’ recruited IBM’s AI Ross to handle their bankruptcy challenge.


Now as AI in India is increasing and making its way we need legislation to curb over the issues that can arise due to defaults.

SITUATION WORLDWIDE

In EU countries, attention is paid to legal regulation of unmanned vehicles. The German Traffic act, manages the automated and semi-automated vehicle on owner and envisages partial involvement of Federal Ministry of Transport and Digital Infrastructure. The most appropriate legislation regarding AI in EU is presented in EU resolution on Robotics (European Parliament Resolution, 2017). In Russia, there is a similar Bill Like EU, named Grishin Law (2015). It is under Russian Parliament Consideration. Also there is a model convention on Robotics that introduces rules on creating and using Robots. In Australia, there is no bill or act on it as such but it has a paper published for such recommendations. In the area of ethics and human rights implications of AI, the Office of the Australian Information Commissioner published the Guide to Data Analytics and the Australian Privacy Principles in March 2018. In addition, the Australian Human Rights Commission discussed AI in a July 2018 issues paper on human rights and technology that asks “how Australian law should protect human rights in the development and use of new technologies.”[4]


SITUATION IN INDIA

Compared to most EU nations and other developed countries, India has yet to proactively work on this issue. AI should be seen as a scalable problem solver in India rather than only as a booster of economic growth’ in the technology sphere, perhaps, owing to this perspective, regulatory legislation would be enforced. The AI Task Force constituted by the Ministry of Commerce and Industry has posed several recommendations, such as the following: (a) the creation of an inter-ministerial National AI mission to coordinate AI-related activities in India; (b) enabling the setting up of digital data banks, marketplaces and exchanges to ensure availability of cross-industry data and information; (c) participating in the elaboration of operation standards for AI-based systems; (d) putting in place enabling policies to encourage and facilitate the development and deployment of AI-based products (such as data policies regarding ownership, sharing rights and usage, as well as tax incentives to support innovation); (e) elaborating an AI education strategy to develop human resources with necessary skills; (f) supporting reskilling of the current workforce; (g) participating in the international policy discussion on the governance of AI technologies; and (h) leveraging bilateral partnership on the development of AI solutions for social and economic problems and for sharing best practices in regulation[5].

CONCLUSION

The unparalleled fascination of the human race to create intelligent machines is evident by the creation of countless sci-fi Hollywood movies; the AI virtual assistant-Amazon Alexa and an array of autonomous and semi-automated vehicles. It would not be an exaggeration to say that since the day AI has set its foot in the global markets, its remarkable influence has impacted each and every domain be it health, education or even laws. In recent times, legal sector has witnessed significant technological advancement and it is at the mercy of the AI software that crucial legal information can be accessed in just a few clicks. It is undisputed that AI has not only benefited the lawyers and small law firms by providing them the much needed resources and assistance in legal researching but also from e-journals and reporters to expert legal advice, the technological innovation has changed the way how legal services were rendered. In such a times the requirement is not just application of ontological and epistemological lens but also ethical ones to look at the current scenario of AI and laws so as to ensure that the basic ethical virtues such as security; equality; fairness; reliability; privacy; transparency etc. do not get sidelined in the techno-legal mayhem.

[1] AI Strategies and Public Sector Components, OECD Observatory of Public Sector Innovation [2] G.S. Bajpai & Mohsina Irshad, Artificial Intelligence, the law and the future, The Hindu, (11 June, 2019) https://www.thehindu.com/opinion/op-ed/artificial-intelligence-the-law-and-the-future/article27766446.ece. [3] Natasha Nayak & Rajnish Gupta, Worldwide: Regulating Artificial Intelligence, Ernst & Young, (30 April 2020). https://www.mondaq.com/india/new-technology/914028/regulating-artificial-intelligence. [4] A. Atabekov & O. Yastrebov, Legal Status of Artificial Intelligence Across Countries: Legislation on the Move, European Research Studies Journal, Volume XXI, Issue 4, 2018. [5] India: Government-appointed Task Force Issues Recommendations on AI, GIP DIGITAL WATCH (Mar. 30, 2018), https://dig.watch/updates/india-government-appointed-task-force-issues-recommendations-ai, archived at https://perma.cc/F2GU-R23E

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