Legal and Ethical Implication of Artificial Intelligence: Policies and Regularisation with special emphasis on Legal Profession in India

BY MEGHA CHATURVEDI

ASSOCIATE, H.K. LAW OFFICES

ABSTRACT

“By far the greatest danger of Artificial Intelligence is that people conclude too early that they understand it.” – Eliezer Yudkowsky.

With the advent of Technology, human life has been more advanced, comfortable, convenient and smooth. This word technology has been rapidly progressing from electricity, telephone, computer, fax, machines and robots and Artificial Intelligence (AI) is one of such magnificent innovation. AI can be understood as a machine that is capable of thinking and performing cognitive functions on its own. 

AI is a combination of scientific and computational technologies which are motivated by the ways humans accustom their nervous systems to feel, act, acquire, think, reason and make decisions. This technological advancement has contributed and benefited various sectors, from automobiles to defence, it imprints can be analysed. Yet it has raised several concerns because of threats of its potential misuse and the huge unforeseen harm which can be caused by AI.

Today it has raised several ethical and legal questions not only to society but also to government, policymakers, business tycoons and companies who have stepped in to confront the unique legal and policy questions presented by the widespread adoption of AI.  

This paper shall deal with the imprints of AI on various sectors and risings concerns and challenges along with its legal and ethical implications. Further it shall deliberate on advantages and practical inference on legal profession, judiciary and courts, practical policy regularization, its scope and way forward in India.

INTRODUCTION

The idea of artificial intelligence is not new to any person who has examined and observed the creativity of science. Initially machines were invented to supplement the work of humans with application of human mind. The term ‘Artificial Intelligence’ was first coined when an idea came across whether machines can also think. “The term was first coined about sixty years ago, when people began trying to understand whether machines can truly think. Since then, there have been advances in search algorithms, machine learning algorithms, and integrating statistical analysis into understanding the world at large over the past six decades.”[1]

AI can be understood as a machine that is capable of thinking and performing cognitive functions on its own. AI is a combination of scientific and computational technologies which are motivated by the ways humans accustom their nervous systems to feel, act, acquire, think, reason and make decisions. In general understanding, “Artificial intelligence, a branch of computer science, is the recreation of human intelligence processes by machines specially computer system, aims to create intelligent machines which can often act and react like humans and makes possible for computers to perform tasks involving human-like decision making, intelligence, learned skills or expertise.”[2]

IMPORTANCE AND CONTRIBUTION TO VARIOUS SECTORS

The expansion in the course of digital information is magnificent and is continuously increasing worldwide because of which it becomes difficult to manage and structure. Now being faced with this challenge, new technologies have emerged to bring data analytics to next level. Artificial Intelligence (AI) has proved their significant contribution in various fields, which is thoroughly visible to some extent. 

Artificial Intelligence i.e. Robots in Manufacturing Industry: The use of Robots is the most common example to understand the concept of artificial intelligence. The AI has been in use in form of Robots in manufacturing industry since long and has significantly contributed in increasing the labour productivity, reducing the cost of production and improving the quality of product.

Artificial Intelligence i.e. Robots in Service Sector: The use of Robots in Service Sector is quite new and their development is increasing significantly with their increasing contribution to human lives, such as providing assistance to disabled people or taking care of sick, mowing lawns and even providing assistance in restaurants and hospitals. 

AI in Autonomous Vehicles: Coming from an era where cars were developed as a mode of transport to witnessing the increase in the luxury they offer in recent times; we have also witnessed the growth in automobile sector and the comforts they offer now be it remote parking or controlling the ignition of engine from outside. The current on-going research in use of AI in Automated Vehicles advocates that they have ability of reducing road accidents and traffic congestions, reducing the fuel consumption and emissions, improving the safety on road and mobility of the elderly and disabled etc.

AI in Legal Profession: The legal profession has not been left out from the imprints of technological advancement, the legal research has also undergone significant changes and has been more easier and accurate, proving to be a boon for a practicing lawyer. Now the companies dealing with AI research and AI technology advancement have also been developing systems for rendering better services through Legal Profession as well. “From journals and reporters to CD-ROMS and Online software, legal technological innovation has changed the way how legal services were rendered. AI software helps the lawyer to find relevant case laws and applicable statutes. With this software complex legal questions can be answered in simple and basic language. Lawyers and firms are drafting and reviewing the contracts as well as the case documents with the help of software. There are different ways in which artificial intelligence technology is being currently applied in the legal profession around the globe and proving to be advantageous for the law firms and lawyers respectively. Can robot replace lawyer?? Practically, robots cannot replace a lawyer’s role in court, but AI robots have the power to create and draft documents. Therefore, the clerical role of lawyers might be reduced to a large extent. Appearing and arguing a case before judges in the court might be the only role lawyer’s play.”[3]

CHALLENGES IMPOSED BY AI

The advancement in Artificial Intelligence has imposed great challenges raising several ethical and legal questions not only to society but also to government, policymakers, business tycoons and companies who have stepped in to confront the unique legal and policy questions within the realm of municipal and international law. The challenges imposed by complete automation for humans which can be foreseen are as follows:

Intrusion of Privacy/Hacking: The artificial technology for its usage has access to all our data and at the end it is a man-made software which if could be hacked by another man-made software, can lead to leak of all personal data/important information which can even be misused for illegal purposes. 

Scheme and Policy Regulation for Application of AI: In the global as well as regional market, AI is yet to be regulated with policy and legal framework on examination and functional application of AI. In India, Niti Aayog released the national programme on probabilities AI in various sector (On February 01, 2018,). In keeping with this objective, the government is set to support start-ups and centres of excellence with respect to AI training and research activities.[4]

Funding for AI Start-ups: For their effective research and application activities, funding of AI start-ups plays a very crucial role. This role has to be played by not just government but also companies and big players of market to bring forth the new set-ups in application.

Legal Personality of Robots: The Legal personality of robots has to be recognized and the sphere of their legal rights have to be well defined for effective application in present scenario.

Liability in case of error or any malfunctioning: It has to be primarily understood that who shall be held liable in case of any error or any harm caused due to malfunctioning of the AI. A proper legal framework has to be drawn before application in present scenario. 

LEGAL & ETHICAL IMPLICATIONS ALONG WITH THE PUBLIC POLICY CONCERNS

ETHICAL IMPLICATIONS ALONG WITH PUBLIC POLICY CONCERNS

Recalling the age of industrialisation which at one hand improved the quality and quantity with less man-power but on the other hand led to mass unemployment and took a while in order to be adapted by societal norms. For example- if self-driving cars/trucks are introduced, the job of drivers will be at stake, so is of chef in restaurants and nurses at hospitals. Presently, the speech to text and other voice recognition software which are used for automated typing on laptops and computers, has replaced the job of typists. Therefore, many such skills which earnt bread and livelihood for humans could potentially be replaced by AI technology. But, if AI is devised and understood in a progressive manner, it has tremendous possibility of creating room and opportunities for people, taking up more complex roles, moving from the physical work that dominated the pre-industrial globe to the cognitive labour that characterizes strategic and administrative work in our globalized society. It will further change the way society works, human interaction would be lessened and people will become more dependent on AI and technology. Therefore, there are various ethical implications along with public policy concerns which are categorized and dealt in the following:-

INEQUALITY: By introduction of AI, a company’s reliance on man-power and human workforce can decrease leading to cutting down the salaries paid, and the earnings shall go in fewer hands. As a result of AI, the owners and investors at AI-driven companies will make profit disproportionately at the cost of the workforce eliminated. This would lead to widening the gap between rich and poor.

“One question remains to be answered by public policy stakeholders: How does a fair society achieve an equitable post-labour economy?[5]

SECURITY: In recent times, it has been realised that more the advancement and power in technology has increased its risk of falling in wrong hands. Be it nuclear power or robots that might replace human soldiers or the autonomous weapons but if they fall in wrong hands or used maliciously, they can cause an irreparable damage to human race.

EVIL AI: There have been many Hollywood movies which have shown the evil unforeseen consequences of AI technology which turned eventually against humans and tries to extinct the whole human race to prove themselves better. In fact, on practical terms there is possibility of getting terrible unforeseen consequences when AI is used to fulfil the wishes of humans because of its lack of understanding of the sense in which the wish has been made. For example- A wish made to eradicate Covid-19 from the world, is computed by AI and given a solution of killing whole human race. This raises a question, is AI or robots always controllable by humans and what if it goes out of control? 

BIASED AI: The programming of AI system is done by humans which can be biased and judgemental, therefore such AI software may have biased conclusions or responses as the perception of the programmer. Example- Software built to predict potential future criminals has shown bias against black people or followers of Islam. 

LEGAL IMPLICATIONS AND CHALLENGES

“Emerging AI is an ever-increasing public concern for the many risks present where decisions are made by computers and not by humans. AI requires access to vast amounts of data, but poorly drawn laws and government policies can hinder beneficial access without reducing the risk of AI activities. AI also raises important ethical and privacy concerns that could erode trust in emerging technologies if not addressed thoughtfully.[6]” Policy makers will also be challenged to draft legislation consistent with AI innovation and at the same time taking into account the protection of public from potential dangers. “Since policy formulation is rarely swift, the judiciary may be the first to address these novel legal issues. As a result, practitioners will bear a special responsibility to understand the emerging issues, interests and arguments involved in AI activities, in order to guide their clients.[7]” The various legal implications and challenges faced after application of AI are discussed below:

Intellectual Property Rights: With the development of AI, the AI technology has resulted in creation of music and paintings, further it has potential of creating new technologies and software and it raises a question of applicability of question of IPR laws and who shall be given the rights over the creation or the new invention. 

Capacity to enter into Contracts: As per the law, only a legal person has the capacity to enter into Contracts. So it has to be determined whether AI has given the status and rights of a legal person. So a contract entered by AI, may or may not be qualified as valid contract and may or may not be binding depending upon the legal status given to the AI.

Legal Rights & Legal Duties of AI: The legal rights and duties of AI are also determined by the legal status of AI. The legal status and personality given to corporates may serve as precedent in granting rights and duties to AI.

Nature of Liability: All individuals are liable for offences committed by them and directors are liable for the offences committed by the company. Now the question arises that who shall be liable for any offence committed by the AI? The nature of liability in civil and criminal causes needs to be ascertained. Example- Who shall be liable for an accident caused by automated car and who shall be liable to pay compensation, what kind of punishment shall that AI serve?

Amendment of existing laws: In case AI comes into proper application, many of the existing laws shall need amendment. For example- Industrial or employment laws, as human workforce shall be replaced by AI.

SCOPE IN INDIA AND INFERENCE ON LEGAL PROFESSION

In present times, the world has witnessed the implementation of artificial intelligence at a less popular but highly efficient magnitude in many sectors and Industries, from robots helpers in hotels or restaurants to automated entertainment or vehicles. Artificial intelligence has transformed the structure of numerous industries.

In comparison to other sectors and industries, the Indian legal profession is not very comfortable with the innovation of AI, resulting in very little innovation in terms of technology. In most of the states in India, lawyers are seen to be relying on old methods and solutions of technology and are reluctant to change. But if implemented and applied correctly, Artificial intelligence can play a crucial role in transforming the legal profession as well as the way lawyers operate their services and how the law is contemplated in India.

It is quite visible that how vast difference the AI has caused in the field of legal research. “The Indian legal system is vast and constantly changing and with the use of Artificial Intelligence, lawyers can get unparalleled insight into the legal domain within seconds. Currently to get legal research done a significant number of man-hours are required and this significantly reduces the profit-making ability of a law firm, however, with Artificial Intelligence the entire legal fraternity can be balanced. An artificially intelligent platform for research can get research done in seconds and be it a law firm with 400 lawyers or single practising lawyer, artificial intelligence can balance the expenditure required for in legal research making the quality of research uniform. It can provide lawyers with highly efficient and advanced tools helping lawyers become better in advising clients or litigating.[8]

Considering the advancement in International Market, quite a few start-ups based on application of AI have tried to transform the approach of Legal profession in India. Some of them can be named as i.e. “SpotDraft, CaseMine, NearLaw, Pensieve, Practice League etc” which are basically Natural Language Processing [NLP] based applications, “introducing next-generation legal research platforms that help law firms go beyond simple, keyword-based research, thereby making it less time-consuming. Many legal start-ups are fast rising in Artificial Intelligence research capabilities, some of who have their own AI research labs.”[9]

BENEFITS OF AI IN LEGAL PROFESSION

TIME-SAVING: With huge pendency in litigation, it takes years to dispose off pending cases in India. With the advent of legal technology, the tasks “like legal research, discovery, due diligence, contract drafting, contract analysis, have become easy.[10]” From creating e-database, e-filing to contract drafting and getting relevant case laws and landmark precedents by just typing a keyword, AI has made life of lawyers simpler and easier. 

COST-EFFECTIVE: When any task is done by machines repetitively than man-power, initial investment is huge but cost in long run is very less. In present legal scenario, “tasks like documentation, analysis etc., used to take a lot of manpower, hence resulting in more salary being paid and therefore more financial resources being used up. However, with the use of AI, these repetitive and easy tasks have become more efficient and quick. Therefore, it leads to cost reduction.[11]

ALGORITHM BASED PREDICTIONS: AI is capable of smart analysis using the algorithms feed into it and giving the facts and circumstances of a case, an AI software may be capable of ascertaining the strengths and weakness of a case as per laws governing in the territory and can even help and predict whether a lawyer can win this case or not, which further helps to reassure the client.  

AI IN CONTRACT DRAFTING AND ANALYSIS: When a contract is drafted manually and conventionally, it is a cumbersome task and requires time, skill and due diligence. And now “through advanced AI algorithms, it has become easier to analyse the requirements of a contract and then predict a draft of the contract.[12]” A new AI Start-up named as “Spotdraft”, has been developed to draft, evaluate, assess and analyse contracts. The CEO of NDTV Goodtimes has reviewed this Start-up commenting that- “We were thrilled with the speed and accuracy of Spot Drafts delivery. SpotDraft was able to quickly and easily review contracts as per our requirements, cutting what was a two-week contract cycle to a few hours”.

AI IN LEGAL RESEARCH: AI has proved to be very effective in Legal Research, reducing a cumbersome task to going through huge pile of journals to typing keywords and getting relevant research at one click. The huge database available on internet has proved to be a boon for the legal profession.

AI IN DOCUMENT REVIEW: AI had also been used to facilitate document review for achieving results of work with due-diligence and more precision. One of the renowned firms of India, Cyril Amarchand Mangaldas, has adopted AI of “Kira Systems in order to facilitate due diligence and Document review for effectiveness and precision which will be of advantage to their clients.[13]

AI IN DECISION MAKING: When an AI technology is programmed with database and laws, it can produce judgement for facts and circumstances of case as per programmed laws. In this sense, AI can fulfil the task of decision-making. It raises a serious concern, can it be used to replace Judges in Legal System?

CAN ARTIFICIAL INTELLIGENCE REPLACE THE ROLE OF LAWYERS AND JUDGES IN INDIAN LEGAL SYSTEM?

Very casually, an answer will come to our minds saying ‘No’. But considering the above advantages, we now understand that AI is actually capable of evaluating the facts and circumstances and giving strengths and weakness of any case along with arguments supporting the laws in the territory. Similarly, it is further capable of giving judgements and decision making evaluating the facts and laws. 

But does this mean can AI actually play the role of lawyers and judges and actually replace the legal practitioners in Bar?

No, AI cannot replace the role of lawyers and judges in Indian Legal System as it lacks the most important human element i.e. emotions and wit. India by its constitution, is a SOCIALIST nation being an economy working for welfare of its citizens. Every case and situation has various reasons and social stigmas and circumstances attached to it which have to be considered before passing any judgement or decision. 

Another important element here is that the judiciary not only adjudicates, but also make and reviews laws. The Supreme Court has interpreted the Constitution on several occasions and further protected its basic structure declaring many laws null and void which goes against its basic structure. It has further evolved laws as per evolving mindset of its citizens, for example recognising LGBT rights in the year 2019 even though it has come into question several times before as well. Therefore, in a developing nation like India, AI can never replace the legal professionals but it can always aid and supplement the profession as a whole by bringing advancement in its practice. 

CONCLUSION AND THE WAY FORWARD

There has always been debates and discussions over every notion and technology introduced in society. It is inferred that everything comes with blessings and curses, and how we put it into application decides whether it proves to be bane or boon for the society. All the inferences that think suggests that AI can be threat to their existence are not wrong but if it is used correctly and not completely depended upon, it has potential of doing more good than harm, which is evident from its present usage in the field of healthcare, e-commerce, manufacturing etc. 

In a developing country like ‘India’ having a Socialist notion, the government and policymakers cannot allow the capitalists to completely transform the society ignoring the needs of the poor and proper legal framework has to be implemented considering public policy concerns along with the legal and ethical implication, so that the individuals constituting 1% of the economy do not benefit over the 99% population. In addition, the protection of humans (citizens) along with their privacy, right to livelihood and other rights have to be considered first and foremost. The current legal standards would have to be adhered to. That is why, the author infers that there is still a long way to think of completely AI regulated society.

The legal framework and policy regularisation would be the most challenging area for the application of AI but if it is managed correctly, it will bring and come up as the biggest transformation in society at par with the industrial revolution.


[1] The History of Artificial Intelligence, History of Computing CSEP 590A, University of Washington, December 2006

[2] Article on Artificial Intelligence- Legal Challenge in India by Pallavi Gupta on May 2019 – Vol. 3, Issue- 1, Addendum 9 (Special Issue) , UGC Approval NO: 40934 CASS-ISSN: 2581-6403 

[3] Ibid.

[4] Ibid.

[5] Top 9 ethical issues in artificial intelligence, Bossmann, WEF (2016), at https://www.weforum.org/agenda/2016/10/top-10-ethical-issues-in-artificial-intelligence/.

[6] Exploring Legal, Ethical and Policy Implications of Artificial Intelligence by Mirjana Stankovic, Ravi Gupta, Bertrand Andre Rossert, Gordon I. Myers and Marco Nicoli, published by Law, Justice and Development on September 2017

[7] Ibid.

[8] Impact of Artificial Intelligence on Indian Legal System by Mirza Aslam Beg, published by Legal Services India, ISBN No: 978-81-928510-0-6

[9] Ibid.

[10] Artificial intelligence : the Indian legal perspective by Rachit Garg published by iPleaders on October 4, 2020

[11] Ibid.

[12] Ibid.

[13] Ibid.

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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