AI-driven tech will become counterproductive if a legal framework is not devised to regulate it

In February, the Kerala police inducted a robot for police work. The same month, Chennai got its second robot-themed restaurant, where robots not only serve as waiters but also interact with customers in English and Tamil. In Ahmedabad, in December 2018, a cardiologist performed the world’s first in-human telerobotic coronary intervention on a patient nearly 32 km away. All these examples symbolise the arrival of Artificial Intelligence (AI) in our everyday lives. AI has several positive applications, as seen in these examples. But the capability of AI systems to learn from experience and to perform autonomously for humans makes AI the most disruptive and self-transformative technology of the 21st century.

If AI is not regulated properly, it is bound to have unmanageable implications. Imagine, for instance, that electricity supply suddenly stops while a robot is performing a surgery, and access to a doctor is lost? And what if a drone hits a human being? These questions have already confronted courts in the U.S. and Germany. All countries, including India, need to be legally prepared to face such kind of disruptive technology.

Challenges of AI

Predicting and analysing legal issues and their solutions, however, is not that simple. For instance, criminal law is going to face drastic challenges. What if an AI-based driverless car gets into an accident that causes harm to humans or damages property? Who should the courts hold liable for the same? Can AI be thought to have knowingly or carelessly caused bodily injury to another? Can robots act as a witness or as a tool for committing various crimes?

Except for Isaac Asimov’s ‘three laws of robotics’ discussed in his short story, ‘Runaround’, published in 1942, only recently has there been interest across the world to develop a law on smart technologies. In the U.S., there is a lot of discussion about regulation of AI. Germany has come 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 in developing a law on self-driven cars.

In India, NITI Aayog released a policy paper, ‘National Strategy for Artificial Intelligence’, in June 2018, which considered the importance of AI in different sectors. The Budget 2019 also proposed to launch a national programme on AI. While all these developments are taking place on the technological front, no comprehensive legislation to regulate this growing industry has been formulated in the country till date.

Legal personality of AI

First we need a legal definition of AI. Also, given the importance of intention in India’s criminal law jurisprudence, it is essential to establish the legal personality of AI (which means AI will have a bundle of rights and obligations), and whether any sort of intention can be attributed to it. To answer the question on liability, since AI is considered to be inanimate, a strict liability scheme that holds the producer or manufacturer of the product liable for harm, regardless of the fault, might be an approach to consider. Since privacy is a fundamental right, certain rules to regulate the usage of data possessed by an AI entity should be framed as part of the Personal Data Protection Bill, 2018.

Traffic accidents lead to about 400 deaths a day in India, 90% of which are caused by preventable human errors. Autonomous vehicles that rely on AI can reduce this significantly, through smart warnings and preventive and defensive techniques. Patients sometimes die due to non-availability of specialised doctors. AI can reduce the distance between patients and doctors. But as futurist Gray Scott says, “The real question is, when will we draft an artificial intelligence bill of rights? What will that consist of? And who will get to decide that?”

G.S. Bajpai is Chairperson, Centre for Criminology & Victimology, National Law University, Delhi and Mohsina Irshad is a research scholar at NLU, Delhi