Why does India need super lawyers? Tech, AI, Data and the changing face of litigation

by Bharat Chugh & Siddhi Kochar

The recent pandemic has not only locked us up, made us read compulsively about force majeure and watch cat videos, but has also made us meditate.  Many certainties have broken down and we’ve been compelled to look-within and our place in the future. The authors intend to share their musings on that – through this column. But, a small disclaimer first : At the very outset, we caution the reader that this is not going to be a comforting read, & if you want to read something more reassuring, you might want to look elsewhere. This, nevertheless, may be an important read, for this is about the future, our collective future. A hundred-year throwback would tell us that, while a revolution of the powerless may still command an audience, a revolution of the redundant is, well, for want of a better term, redundant. In this background, the question we ask ourselves is: are lawyers and judges facing an unprecedented existential crisis; in other words: What really is the future of the legal profession?

A profession, which despite its stellar role in social change, is otherwise hard-wired to always look behind in terms of precedent, analogy, custom & tradition. We’ve known this for some time now. But the very nature of our profession often makes us averse to change and, as we lawyers love to call it – status quo-ists.  But, as the adage goes – even if we can’t see the future, the future can still see us. We are living in the age of acceleration and disruption. While society and technology are moving by leaps; law and legal education, is struggling to catch up. Do we have the necessary skills to survive? Would the skill sets that we have serve us well in future?

While we confront this question, the essential egocentricity of the profession makes it difficult for us to adapt to a mindset which Richard Susskind appropriately calls ‘outcome based thinking’. An approach of taking a step back, beyond oneself and thinking in terms of outcomes and solutions. Just as a person afflicted with cancer has a cure at the top of his priority list rather than a rockstar of an oncologist; a person having a legal problem is usually not looking for a great lawyer; instead, he’s looking for a solution to his problem. A lawyer merely helps him achieve that, with his expertise and efficiency.   

With this framework of thought in mind, we argue that, even if we overcome the essential dynamics of our species and look at things in an outcome/solution-based approach, we are still faced with another important question, which is, what are the questions that we’d be asked to resolve, in the next few years, as lawyers and judges? The central task of this column is to raise a few questions and illustrate how technology is changing every conceivable legal vertical and demanding us to be super-lawyers.

IMPACT ON CRIMINAL LAW

Lawyers are being asked questions relating to criminal liability for technology and machines; take, for instance, liability for injury in cases of driverless cars, robots and autonomous weapons.

Driverless cars

We can all agree that, given the fact that most accidents occur because of human error, a driverless car is certainly better than, say, a 16-year-old at the wheel, coming back from a frat party. But what if the autonomous vehicle causes an accident and people are hurt? Where should the liability lie in such a case? Would there be a difference as far as tortious and criminal liabilities respectively concerned? Would the engineer who programmed the car be made liable, or the purchaser of the car is to be made liable if he chooses to have the car driven in ‘selfish/sports’ mode and not the ‘altruistic mode’. Or do you think liability should lie with the regulator who passed such a car as fit to be run on roads? These are vexed questions.

Autonomous weapons.

The coming into existence of autonomous weapons might spell trouble in interpreting the rules of warfare. Currently, international humanitarian law is already grappling with issues regarding the use of modern means of warfare, such cyber warfare. There is a raging debate regarding the use of cyber technology amounting to an act of war, and the liability of a State in cyberspace. Autonomous means of warfare will need international humanitarian law to answer various questions, such as, state liability, and whether usage of an autonomous weapon crosses the threshold of an act amounting to war, which are some of the basic conditions for an act to qualify an act of war.

Alibi and GPS location

For defense lawyers, the use of GPS location has already altered the law surrounding the plea of alibi and criminal conspiracy. Evidence from a person’s pacemaker, smart watch is also being used to determine a person’s location at a given time and place. In a very interesting case, a person in US lost his (false) insurance claim when the insurance company successfully proved that the claimant was never in a danger (as he claimed to be) by leading evidence of his pacemaker activity (at the time of the alleged incident) which did not show any heightened activity and his claim was thrown out and he was prosecuted for setting fire to his own house to make a false insurance claim.

Can the accused be compelled to share the passcode/face scan/finger print for his phone?

We are already being confronted with questions such as whether an accused has a right to silence qua passcode to his smartphone or can he resist sharing his face-scan for opening his phone on the ground of it amounting to ‘being forced to be a witness against oneself.’ in light of the protection granted under Article 20.  In a world where a smartphone is an extension of one’s mind, it becomes crucial for the law to evolve and address the pressing issues of right to privacy and self incrimination.

An 1860 law and modern forms/means of committing crimes

Criminal law may need to be upgraded to amend the definitions of certain criminal activities to include the modern means of committing those offences. Soon, following someone via drone technology or through online means may constitute stalking (if it doesn’t already!), and data theft might amount to theft under the Indian Penal Code. (Currently, data theft may not be theft under IPC given the fact that it is not tangible/corporeal property).

Sexual Assault in the virtual worlds.

Similarly, various problems are beginning to emerge in the world of virtual and augmented reality. Crimes such as sexual assault within virtual worlds have raised concerns about the emotional and psychological impact on victims (in the offline world) and some vexed ethical and legal questions about how to deal with such behavior, in the offline world.

Regulation of use of 3D printers & cyber attacks/murders.

Some rather disturbing possibilities could involve usage of 3D printers to print AK47s and other weapons; or a terrorist may use a website to purchase the recipe of the Ebola virus, which he pays for in cryptocurrency; similarly, hackers may shut down entire essential water supply/fire systems and cause city-wide destruction. Similarly, a hacker may intercept into the servers of a hospital connected with the Internet of Things (IOT) and alter the dosage to be administered to a patient fatally, or it refuses to release the digitized patient history for doctor’s to diagnose unless there is a heavy monetary payoff or worse, it hacks into a pacemaker to stop it from working.

Virtual currency and law

With the recent historic verdict of the Hon’ble Supreme Court reversing the two-year old de-facto ban on cryptocurrency, it is legal for the citizens of India to participate in the block-chain Revolution, but this is de hors any regulatory framework. Lawyers, Judges and legislators would be asked to regulate working of this technology.

In such a situation, it becomes absolutely necessary for budding lawyers and other stakeholders in the legal industry to be diligent and engage with these issues ardently, or face becoming irrelevant.

Impact on Constitutional Law

The debate surrounding the emerging technology of CRiSPR, a technology that allows for genetic alteration of an organism so as to affect intelligence, height, and certain other key characteristics, raises some pertinent legal questions within the ambit of even Constitutional Law. Along with this there are discussions surrounding the ethical and legal implications of the right to, for want of a subtler term, have designer babies. Such an environment, involving super-humans competing with ordinary human beings might require a re-look and a unique perspective on the right to equality under Article 14. The desirability of affirmative actions for ordinary human beings to give them a level playing field with super-humans, is something that constitutional law thinkers would be grappling with – the next few years.

Questions surrounding the constitutionality and legality of bio-hacks, such as performance-enhancing drugs are being re-examined afresh.

Impact on other branches of law

Other branches of law won’t stay unaffected either; they too would need legislative and judicial reform, owing to the rapid changes in technology.  Due to the increasing importance of data, possible questions that may arise for consideration could be the need for a  revised outlook towards  taxation of data and its accumulation. In addition to that  the regulation, use, ownership and storage of data by national and multinational companies is also a facet that needs deliberation. The uncertainty looming over the whole data privacy issue also not lost upon us, especially in light there being no law on it in India, as of today. In the same vein, the questions of data localization, cloud computing and the right to be forgotten will also need contemplation.

Impact on contract law

Take for instance : An AI system that can take and make calls on one’s behalf and act as an executive assistant. It is capable of mimicking the voice of a human, so much so that the person on the other end would never know whether they spoke to a human or an AI program. The possible legal issues surrounding this may be : violation of parties’ consent to have their voice recorded in order to elicit a response from the AI (on the receiver’s end); the manner in which the voice is recorded, stored and transmitted, the uses of the recorded audio, and any consequent privacy violations. A question which does not seem to be far off would be one regarding the formation and enforceability of oral contract that the AI undertakes on one’s behalf. Can there, legally, be an agent-principal relationship between the AI programme and the human being, and how would the the existing scheme of the Indian Contract Act, 1872, is to align with it? Can an AI system be an agent for the purposes of the Indian Contract Act, 1872?

On a larger point, we would be looking into as to how would the Indian Contract Act respond to the challenge of block-chain and self executing smart contracts?

These are the challenges that a lawyer/judge of tomorrow would be asked to defend/argue and resolve. We’ll dig deeper into each of these legal-tech conundrums in the next few columns, so stay tuned.

The views expressed herein are personal.

Special thanks to Advocate Asmita for hours of great discussions and bouncing off ideas.