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Law Enforcement v. End-to-End Encryption

In a post-Snowden world, there has been relatively more awareness and interest in the right to privacy regarding digital communications; and in knowing when the government can snoop-in on personal conversations. A majority of the communications taking place today are digital and involve two crucial processes i.e. encryption and decryption. Encryption (which is conversion of information into a code) happens when a message/call is initiated. At the same time, decryption (conversion of code back into useful information) happens when the message/call is received by the recipient. There are multiple nuances in this process; both in the technological aspect and the legal aspect.

For quite a while now, WhatsApp chat pages show the message – “Messages and chats are now protected with end-to-end encryption.”. The end-to-end encryption or E2EE (first used in program called Pretty Good Privacy, by Phil Zimmermann in 1991) is a form of encryption that makes it improbable if not impossible to intercept a private conversation. Traditionally, there are 3 instances when a conversation can be intercepted – firstly, from the device of the sender before encryption, secondly, when the information code in is transmission and thirdly from the device of the recipient after decryption.

The two ends i.e. the sender and the recipient, stay vulnerable to unwanted physical access or hacking but it’s the second instance where majority of the snooping takes place. It is here that E2EE becomes useful, for tech companies to bypass court orders and in extension protect user data. E2EE in the simplest of terms means that two people communicating are the only ones who have the specific keys to decrypt each other’s messages and any other person who intercepts such data will have nothing but an unintelligible code. While most communication apps or telecommunication providers have the decryption keys in their own servers; which grant them the ability to see or hear any conversation that passes through their servers, E2EE eliminates this obstacle by giving the keys to both individuals and not the service provider. Imagine the system as that of a letter-box, anyone can put in the messages and lock it (public key) but only the intended recipient has the key to unlock his messages.

This effective bypassing of the service providers has both pros and cons to it. On one hand, it allows for greater freedom for expression of opinions and beliefs without the fear of any sanctions, while on the other hand it stops the governments from carrying out intelligence activities vital for national security. The government, in ensuring the safety of its citizens, does covert operations such as surveillance which enables them to intercept vital communications between suspects; which may lead to stopping of terrorist threat. The importance of such can be gauged from the fact that the latest attack in London included secure-device (encryption) communications between the terrorists and also that ISIS issued instructions for its followers on how to communicate through encrypted apps to plan attacks.

Privacy however is not the only lens through which encryption can be seen in a global setting, for example, promotion and use of E2EE is seen as a human rights issue, as it furthers individual privacy and freedom of expression, which are two rights contained in the International Covenant on Civil and Political Rights (ICCPR). Yet UN reports like “The Right to Privacy in a Digital Age” and “The Promotion and Protection of the Right to Freedom of Opinion and Expression” expound on the idea that judicially ordered decryption is not violative of human rights and has laid down a three part test to limit when a government can restrict encryption.

There is an intense debate about the curbing of powers of law enforcement authorities to gather information through court notices from service provider companies. This debate gained public light after the incident in Brazil, where Facebook had its assets frozen subsequent to its non-compliance of a court order to provide WhatsApp conversational information of a bank robbery gang; which Facebook couldn’t have provided even if it wanted to, as it had no means to do so after enabling E2EE. This incident coupled by Apple’s refusal to the FBI to decrypt the iPhone of the San Bernardino shooter and install a backdoor in their operating system for use by law enforcement, have prompted the UK government to take the issue one step further by enacting a new legislation for surveillance through equipment interference.

The intelligence gathering aspect of E2EE is marred with internal conflictions in the state itself as the state needs such encryption tools to secure its own data but also resents it, as it makes public surveillance harder. Hence, while promoting stronger encryption programs for state use, they limit their citizen’s ability to do so. While certain states like Germany encourage public use of E2EE to avert the covert intelligence gathering abilities of the FIVE EYES countries.

Another facet of this issue is the restrictions in commercial and export area; profit driven tech companies in order to boost sales promote E2EE (more popularity, more sales) and oppose state-imposed rules as this would mean that they can import or build only those applications which allow third party access. Since, every state strives for stronger encryption tools to protect their own data and deal with upcoming security threats, there is state imposed regulations on selling such technology by tech companies to certain states for the purposes of national security and foreign policy goals.

A hypothetical solution to this problem of law enforcement and national security versus privacy can be the innovation of an internal system within the system of such service providing companies like WhatsApp. The internal system, when established would compare every number that tries to send a message with a blacklist (The numbers law enforcement wants to track with judicial approval). When a blacklisted number tries to send a message, the server can stop the E2EE services for the said number from that point onwards and the collected information can be stored in a separate database which can only be accessed by the company’s department handling judicial obligations.

Technology has and will continue to benefit us in ways that cannot be counted, but unaccountable use of such is also capable of great harm. The need for security more than privacy might result in a paradigm shift against rigid privacy laws as is prima facie seen in lawmakers of Florida after the Orlando attacks. It is the cooperation of law and technology together that will result in swifter disbursal of justice and achieve a balance between privacy security and public safety. The adoption of a system such as the one suggested above might be the first step to strike that balance between privacy and safety.

PATENTING OF HUMAN GENES: Intellectual Property vs Access to Healthcare & Research

In the case briefs of Myriad Genetics vs Associated Molecular Pathology, amongst the several moving stories of victims of gene patents, contained the story of Abigail, a 10-year-old with a long QT syndrome, a serious heart condition that, if left untreated, could result in sudden death. A company in this case had obtained patent on two genes associated with this condition and developed a test to diagnose the syndrome. But then they went bankrupt and never offered such tests. Another lab tried to offer the test to Abigail, but the previous company which held the patent to such diagnosis threatened to sue the lab for patent infringement. So as a result, for 2 years, no test was available. During that time, Abigail died of undiagnosed long QT.

In 1790, the US Government started issuing patents under Patents Act 1790, with the motive of “Encouraging Arts and Sciences”. These intellectual property rights slowly became the biggest statutory safeguards of research and investment in a democracy. Edible business cards, nicotine infused coffee, a rock-paper-scissors card game for people too lazy to use their hands and finally thong diapers which make up the list of some rather amusing patents the USPTO has issued to protect intellectual property.

In initial days, this IPR regime was under huge criticism from ethical and moral firewalls which questioned how the right of commercial exploitation of resources can be rested at the hands of a selected few [link found here]. But the intensification of competition in industries (especially the biotechnological industry in this case) called for some sort of incentive creation for investment in research which came in the form of patents.

SCIENTIFIC DIFFERENTIATION OF FORMS OF DNA IN QUESTION 

Genes as we have pointed out before are units of heredity. A gene is a segment of DNA that codes for a specific protein or set of proteins. In this article, we will talk about legal framework of gene patenting with respect to the following three forms DNA in its natural cellular environment, isolated genomic DNA, modified synthetic cDNA. Scientists have discovered methods of extracting DNA from its natural cellular environment which is later used for purpose of diagnosis through gene sequencing. This isolated genomic DNA is sometimes modified by splicing and removing the non-coding introns to make a DNA made of only exons. This kind of modified DNA is called cDNA and the same is used to express particular proteins by scientists in human body. The difference between isolated genomic DNA and cDNA is that there is human modification involved in the later while there is none in the earlier [link here].

HISTORY – CASE LAWS SURROUNDING GENE PATENTING IN USA

The landmark decision of Diamond vs Chakrabarty in 1980- opened the floodgates for patenting of microorganisms where the judge ruled that human-made living matter is
. Anything under the sun made by man was considered to be patent worthy as long as they were not discoveries or manifestations of nature. The court clarified the threshold required for obtaining a patent as: “relevant distinction was not between living and inanimate things but between products of nature, whether living or not, and human-made inventions.”

“Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.”

 

The United States Patents and Trademarks Office though seemed to have paid little attention to the limitations under the patent regime which in no way allowed patents to products of nature. The Patents Office undertook an expansive interpretation of law and went on to grant patents to a number of “engineered DNA molecules”. It handed patents for isolated DNA on the ground that since these molecules had been secluded from their natural cellular environment they were no longer “products of nature”.

This standing USPTO practice was challenged for the first time in a 2009 case against the grant of patents to Myriad Genetics. Myriad Genetics had after extensive investment and research discovered locations of BRCA 1 and BRCA 2 genes on the human chromosome which was landmark in the medical science. Mutation of BRCA 1 and BRCA 2 genes could lead to breast and ovarian cancer in women (it increases the chances of contracting breast cancer by 50-80% and ovarian cancer by 20-50% approximately according to case reports of Myriad Genetics vs. AMU). Though the scientific community was aware of threat of cancer from heredity, they were clueless as to the exact location of the BRCA 1 and BRCA 2 genes on the human chromosome. USPTO gave Myriad Genetics the exclusive rights to isolate these genes and carry diagnostic tests. The problem started when Myriad tried to enforce these patent rights against organisations which tried to test such gene mutation since they had an exclusive right over the isolation process which is an essential step in any diagnostic testing.

The case of Association of Molecular Pathologies vs. Myriad Genetics can be contextualised as a case of civil rights versus intellectual property rights. The company’s patents on BRCA 1 and BRCA 2 genes were ruled invalid on March 29, 2010 by Judge Robert W. Sweet in a U.S. District Court. On an appeal, the Court of Appeals for the Federal Circuit reversed the trial court judgment on July 29, 2011 and held that the genes were eligible for patents.

On December 7, 2011, the ACLU (fighting the case on behalf of petitioners) filed a petition for a writ of certiorari to the Supreme Court. On March 26, 2012, the Supreme Court vacated the Federal Circuit’s judgment and remanded the case for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc. in which the Supreme Court had ruled, just six days earlier, that more restrictive rules were required to patent observations about natural phenomena.

Myriad Genetics vs. AMP

“Myriad did not create or alter either the genetic information encoded in the BCRA1 and BCRA2 genes or the genetic structure of the DNA. It found an important and useful gene, but ground-breaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.” 

“Ground-breaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.”

On June 2013, the nine judge bench of the US Supreme Court ruled that: “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated”. However the Court went on to hold that manipulation of genes by human intervention to create something not found in nature (like cDNA) is patent eligible. The court emphasised on the “product of nature” exclusion used in previous judgments and also on Section 35 which makes isolated genomic DNA non-patent eligible but something like cDNA patent eligible due to significant human intervention in production process leading to change in nucleotide sequence.

PATENT LAW IN INDIA

Section 2(1)(j) of the Patent Act, 2005, defines the “invention” as a new product or as process involving an inventive step and capable of industrial application.

Indian Patents Act recognises patents only for inventions capable of having industrial application and not mere discoveries of existing inventions. The cross jurisdictional reference through successive amendments to Indian Patent Law can be linked to the US Patent law system of not granting patents to “products of nature”. Furthermore Section 3 of the Indian Patents Act lists out a set of inventions which cannot be patented due to negatively weighing in on policy considerations.

The 2002 Calcutta High Court case of Dimminaco AG vs Controller of Patents and Designs was the first in line of cases to question the legal provisions relating to gene patents. The company sought a patent on the process of preparing Bursitis vaccine where the final product was living organisms. The Patents office had denied patent rights to plaintiff grounding its reasons on the fact that such process couldn’t technically be considered a process of manufacture under the definition of invention under Indian Patents Act since the end product was a living product which they claimed was inherently a part of nature. The court overturned the Patents Office decision and remarked that there was no statutory bar on the patenting manner of manufacture even though the end product is living in nature. The Indian Patents Act was amended in 2002, to specifically permit among other things microbiological and biological processes.

ANALYSIS OF INDIAN PATENT LAW

Indian Patent law doesn’t recognise naturally occurring DNA to be patentable in any manner whatsoever due to provisions of Section 3(c) of Indian Patents which regards mere “discoveries” as non-patent eligible. Act 3(j) of Indian Patents Act which prohibits patentability of any form of animal or plant body is also relevant in this case.

Indian Patents office till 2013 allowed patents on isolated genomic DNA but Indian Biotechnology Guidelines of 2013 changed such a regime by treating such isolated material as mere “discovery” making them non-patent eligible under Section 3(c) of Indian Patents Act and also under Section 3(d) of the same legislation which can consider isolated DNA as “mere discovery of a new form of a known substance” which does not contribute to enhancement of the efficacy of that substance make them non-patent eligible again.

On patent eligibility of cDNA, it is argued to be a product artificially derived by man from work done on a naturally occurring substance. Indian patent case law doesn’t have enough precedent value although to determine the amount of alteration/deletion/moderation by human intervention needed to make modifications on objects of nature patent eligible. The primary question remains as to whether such levels of human modification takes cDNA out of the limitations imposed by Section 3(c), 3(d), 3(e) and 3(j) of the Indian Patents Act to make it patent eligible.[further analysis found here]

ARGUMENTS FOR GENE PATENTING:-

  • The creation of incentive for investment in research is one of the biggest functions of any patent. This is done in order to balance out the risks taken in lieu of investment in research.
  • If a process of gene isolation proves relevant factors of novelty, non-obviousness and utility then why it can’t be treated like any other scientific invention notwithstanding that it’s a part of human body is a question at the core of this entire controversy.
  • Most of public health concerns arising from lack of access to healthcare due to high cost of research is usually external to the patent system.
  • Many of the countries around the world already have a system of gene-patents. The need of any legal framework is to create a positive harmonised set of laws in congruence with laws in other countries.
  • A more realist argument supporting gene patents would be that of adopting a restrictive approach in handing patents leading to companies filing for trade secrets under IPR resulting in removal of research work from the public domain.

ARGUMENTS AGAINST GENE PATENTING

  • Patents are handed on the basis of inventions and not discoveries. Even though there is a lot of investment going into a work of research, a patent can’t be simply granted for that reason. There are other ways of creating incentives which does not lead to monopolization of research.
  • The argument from moral and ethical point of view [read more about ethical issues here] is with regards to questions surrounding how a part of human body can be patented since research on the same is usually based on common heritage and ownership of human race in general. Moreover, genes are units of heredity and Article 4 of Universal Declaration of Human Genome and Human Rights state that no financial gains should arise out the same.
  • Another huge criticism of gene patents is the counter analogy to the first argument made in favour. Exclusivity or monopolization of research may pre-empt future research by blocking access to public knowledge.

The question as a matter of policy thus boils down to balancing two major factors in the gene patenting regime i.e. incentivising of research and investments in research versus promoting public access to necessary healthcare. One of the ulterior objectives of the Human Genome project was to make information available to the general public at large. Expansive approach of reading patent laws has been seen to have wide repercussions leading to reduction of access to healthcare and research.

CONCLUSION

The need for incentivising research was one of the main reasons behind  introduction a liberal patent regime but the fact that in spite of large investments in research, mere discoveries or products of nature shouldn’t be made patent eligible is what should guide our jurisprudence of gene patents. There are other methods present in public domain to incentivise such landmark scientific achievements which are not patent eligible like grant of awards or subsiding costs of research. The advantage of these over granting patents is that they don’t intrude into public access to healthcare and research. The grant of individual property rights cannot supersede under any circumstances the basic civil rights of individuals.

 

 

 

 

 

 

PAYMENT BANKS: AN OUTLINE

Ed. Note: This post by Vishal Rackecha is a part of the TLF Editorial Board Test 2016.

One of the greatest problems for the Indian Economy faces today is the problem of financial inclusion and the lack of credit in rural areas and for micro industries. In 2013, the Reserve Bank released a paper based on the findings of a committee under the chairmanship of Nachiket Mor. This committee said that services provided through mobiles and other internet portals are a low-cost method and under the right regulatory setup would have the potential bringing financial services to places where the formal banking setups find it unviable or unprofitable to setup branches. This is because having both credit and savings functions is necessary. The committee suggested that allowing non-banking businesses with huge customer bases and comprehensive data about the consumers will be able to increase the reach of the requisite facilities in regions where they are not available.

Payment banks would provide be able to provide services such as payments and holding demand deposits to their customers. The concept of payment banks also brings with it the benefits of having a robust payment mechanism at your fingertips and yet not having to spend on the costly infrastructure and manpower required to maintain an actual bank.

The RBI issued in December 2014 released guidelines for payment banks for an entity to register itself as a payment bank. Eligible promoters should be in pre-paid payment instrument (PPI), Non-banking financial institutions (NBFC’s), telecom operators and supermarkets. Another factor was that these entities should have a good track record and having had properly run their business for a minimum period of 5 years.

Each individual account would be allowed to deposit a maximum sum of 1 lakh rupees; they would be given interest on these savings. These banks would be allowed to issue debit-cards and ATM cards. All their services have to be accessible through mobile; and will be used for automatic cashless and chequeless payment of bills. Payment banks cannot undertake lending activities. They will also provide services like being able to transfer money from the accounts via mobile. RBI has also, with TRAI issued rules for telecom operators on the charges for the services of these payment banks.

Payment banks would have to maintain CRR and SLR based on RBI guidelines. The minimum paid-up capital would be 100 crores and their outside liabilities should not exceed more than 33.33 percentage of their net worth. The minimum initial capital requirement paid by the promoter has to be 40% of the entire investment made and the foreign investment would vary according to that private sector banks. Each of these banks has to have a fully networked and technology driven system of functioning from the beginning. Presently 11 payment banks have been issued licenses; this includes Vodafone m-pesa, Aditya Birla Nuvo Ltd, Department of Posts, etc.

These ‘banks’ will go a long way in shaping the financial sector in the nation and will lead to inclusion of presently uncared for section of the Indian economy. This will though not change the monopoly the traditional banks have over the credit supply. It will also go on to promote the goals of both Pradhan Mantri Jan Dhan Yojana and Digital India of including more and more Indians in the organised sector of finance but also make cashless payments more accessible for the poorer sections. This is because the chances of creating a branch in remote village are far lesser than being able to take a mobile phone there. The system though has its promises and will change the dynamics of this sector, assessing the true potential of the system will not be possible till it is implemented in its entirety.

CIVILIAN DRONE HYSTERIA: The Absence of a Regulation Mechanism

This post by Sayan Bhattacharya is a part of the TLF Editorial Board Test 2016.

 

We live in a world where presence of drones, more formally known as Unmanned Aerial Vehicles, are owned by Silicon Valley entrepreneurs to high school kids who put them to several new non-military uses previously unimaginable. We live in a world where drones are conceptualized to do something as simple as delivery of items by Amazon to your doorstep to delivering radioactive vials to the office of the Japanese Prime Minister, from monitoring crops to capturing heart stopping footages which you would see circulating on social media platforms. In a world where these gadgets have flown uncomfortably close to US airspaces as many as 650 times, been used to smuggle contraband into prison cells, used to take pictures of inner premises of temples in India which are prohibited, interfered in police and firefighting operations and lastly crashed into civilian populations causing injuries. This article is placed in such a paradigm where clear absence of regulations have led to imposition of blanket bans post freak accidents and subsequent media hysteria leading to isolation of these progressive gadgets from our daily lives.

 

Some of the gravest legal concerns surrounding use of civilian drones are as follows:-

  1. Breach of privacy – Whether we will tolerate such breaches at the cost of advancement of technologies?
  2. Socio-technical factor surrounding how drones are perceived by different individuals – The perception of people surrounding a machine doing human functions prone to error in varying societal conditions due to lack of human decision making process.
  3. Civilian accidents – Whether we will ignore the hit and run cases of drones as in that of car accidents?
  4. Interference in daily lives – By allowing the beautiful machines that we’ve built to travel distances that we would rather not, how far do we let them go?
  5. Fairness of trade in case of delivery by drones

 

The lack of existence of a clear framework regulating use of commercial and non-commercial drones in most countries across the world has led to imposition of blanket bans on their very use. For instance, in October 2014 in India, the Directorate General of Civil Aviation (DGCA) announced that until proper rules and regulations are formulated, Unmanned Aerial Vehicles (UAV) are forbidden from taking to Indian airspace for any non-government agency, organization or individual without prior authorisation. The use is only permitted if permission is obtained from a number of governmental agencies which are usually out of civilian reach like the  DGCA, Air Navigation Service Provider, the Ministry of Defence, the Ministry of Home Affairs and other concerned agencies. The fact on paper is that no private organization has been given license to use drones. Toy stores and other private markets continue to sell drones and consumers buy them, unaware of the fact that such transaction and use is illegal.

In another provision the Indian government adopts a one size fits all policy wherein the draft guidelines distinguishes civilian drones into four weight categories: micro (less than 2kg), mini (less than 20kg), small (less than 150kg) and large (greater than 150 kgs). The draft mandates that all drones are to be registered irrespective of their weight. A huge error lies in not distinguishing Nano Drones in the said process which have limited commercial usage in terms of distance they can travel and the uses they serve. The nano drones in its very nature should be exempted from registration formalities, third party insurance policies, the minimum 18 year old age limit of piloting which are relevant only for heavier drones.

The United States of America came up with a set of progressive regulations which try to do away with the blanket ban system and fixes a central law for use of civilian drones earlier this year. The Federal Aviation Administration’s new commercial drone rules allow a broad range of businesses to use drones under 55 pounds(approximately 25 kgs), but with several restrictions:

  • The drones must be operated by a pilot who has passed a written test and is at least 16 years old.
  • Drones can be flown only below 400 feet during the day (as a matter of fact, drones usually don’t fly above 350 feet so envisages all possibilities).
  • They have to fly at least five miles away from airports.
  • They can’t travel at more than 100 kmph over civilian population.
  • They have to fly at a visible line of sight.

The perception surrounding use of drones in general doing day to day human work is that of apprehension. The negativity surrounding use of drones develops from the side effects of legalizing it like privacy breaches and freak accidents.Thus whenever an accident is reported, the media highlights only that portion and it becomes the generalized picture surrounding use of drones. This becomes problematic on two levels:-

  1. Leads to cases of people perceiving drones as a threat and damaging them physically and not accepting their usefulness mentally(several cases reported including destruction of state controlled UAVs)
  2. Leads to formulation of drone piloting policies solely to appease public sentiment resulting to blanket bans instead of regulating measures. This is the larger issue with media hysteria and subsequent public policy.

For instance, in Florida, after a few cases of privacy breaches were reported, legislation  prohibiting unmanned aerial vehicles from taking pictures of citizens was passed. On the basis of singular events the broader benefits of drones taking pictures like active citizen journalism, contribution to photography, contribution to science were completely ignored. Also the same legislation was a breach of freedom of expression according to rights bestowed by First Amendment as it drew an unfair distinction only extended to drones.

In a diverse geopolitical and mostly rural background like in India, where a balance between technology and individual rights need to be made, it is necessary that there is a need of presence of regulation mechanisms and not a complete blanket ban on the technology as whole which stops the very basic right of access to technology. Till the time we get used to the usefulness of the machines that we have built, drones will be perceived negatively. Till the time a proper regulation mechanism comes into being you can be sure that if Amazon executives are testing a drone delivery system so are prison inmates. 

Roboethics

Ed. Note: This post by Benjamin Vanlalvena is a part of the TLF Editorial Board Test 2016.          

                                         Source: xkthe_three_laws_of_roboticscd

Liability in law arises to persons who are considered rational and have control over their actions. Techonology is advancing at a rapid pace; machines have taken over a lot of jobs requiring manual labour. Some argue that this is beneficial as it means humans as a race would be able to focus on other activities/specialize. However, with the rate at which things are developing, one wonders what kind of activity would be left for humans. We already have a ‘robot lawyer’ hired by a law firm, a robot which helped people with their traffic tickets and has already successfully challenged 160,000 tickets, there are also robots writing stories for news agencies, one wrote a movie, another drew art. Robots have already defeated us in chess and go. Though they might not be completely ‘intelligent’, there’s no doubt that someday they could catch up to us.

However, does such a fear of robots ‘taking over our jobs’ make us Luddites? As robots become more advanced and autonomous, the chain of causality becomes complex. Which brings us to the question of who becomes liable when a robot commits a crime, or more crucially, can a robot commit a crime or is it merely following orders or is its action simply a malfunction. Companies are considered to be non-human legal entities which can be made liable for their offences through fines or revocation of licences. Could we take an action in a similar direction?

Ethics in and of itself is a widely debated philosophical subject, so is the concept of personhood and consciousness. To bring in a third factor, robots, as ‘beings’ having the potential to possess ‘ethics’ or whether ‘artificial intelligence’ could be termed as consciousness is a legal quagmire. When the action of a robot causes the death of a person or an accident, the question arises, who should be liable, the manufacturer, the owner or the user?

As earlier mentioned, the idea of being liable for an action arises from the fact that the actor is considered to be autonomous. For self-driving cars, therefore, the trolley problem becomes relevant and the question of liability in cases of driverless cars crashing is pertinent.

Ethics, however, are not limited to drivers, and robots are not limited to such a function. There’s a plethora of situations which we must consider. If a robot, for example is to be truly autonomous and yet follow Asimov’s laws, what then, when there are multiple orders which are contradictory, how should a robot react if it’s owner who is in great pain and there is no scope for her to live, requests the robot to kill her? If a General is fighting in war and knows that if he were to be turned over be tortured and forced to spill secrets, requests a robot to kill him, should it? Who would decide what is ethical for robots used in war or war-like situations?

The question therefore arises, when our idea of what is ‘ethical’ or ‘moral’ itself differs among people, can we enforce such an idea on robots? Before we ask if we can trust robots with making moral decisions, can we trust humankind to make the same decisions?

If we make robots liable for their actions, do they deserve any rights? It would not be a first to give rights to non-humans. Animals, for example, have a number of people advocating for their rights. Questions are aplenty, in a trolley problem, if one had to choose between a human being and 5 robots who could through their research cure cancer or some other illness, who should be destroyed? What if the human being were the President of a country?

As time passes, AI will only develop further, when we have autonomous robots who have learnt to say no. The question of who should teach when it should say no also arises. What is morality but one programming oneself or being programmed subconsciously or otherwise to behave in a particular manner in a particular circumstance. How different then, would it be from teaching a child what is moral and programming a robot to act in a particular manner in a particular circumstance, is that not ‘right’ for it?

When we have more and more humanoid robots, and start to treat them like humans and have relationships with them. Questions of how they can be used will eventually arise. How would we view a relationship between a robot and a human? (The movie ‘Her’ comes to mind) What about robots used for sex? What if said robot is looks like a child? An animal? Does it matter only if they have ‘conscience’?

The ethics of robotics, is a difficult to address, and before we are overwhelmed with the advancement of technology, we must address these concerns.

 

 

 

For further information;

http://www.economist.com/node/21556234, Morals and the machine, The Economist.

https://www.youtube.com/watch?v=7Pq-S557XQU, Humans need not apply.

https://www.youtube.com/watch?v=Umk7nQiaqkA, Should we give robots rights?

http://www.bartneck.de/publications/2015/anthropomorphismOpportunitiesChallenges/, Anthropomorphism: Opportunities and Challenges in Human-Robot Interaction.

http://www.androidscience.com/Ro-Man2006/1Kahn2006Ro-ManWhatIsAHuman.pdf, What is a Human? – Toward Psychological Benchmarks in the Field of Human-Robot Interaction.

Biotechnology, Ethics and CRISPR: A Panacea or Pandora’s Box?

Ed. Note: This post by Benjamin Vanlalvena is a part of the TLF Editorial Board Test 2016.

Change is inevitable. Through technology, humans have brought about changes not only in the environment but also within themselves. Whether these changes are ‘good’ or ‘bad’, the fact is that we have achieved things and gone to places we would never have dreamed of.

These changes have given us more control over how we live and how we affect and are affected by the environment.

What is it and how does it affect us?

CRISPR stands for Clustered Regularly Interspaced Short Palindromic Repeats. It is a tool/technique to allow for gene-editing. Genetic engineering and editing is not something new, and we’ve genetically modified mice, fish, pigs, tomatoes, etc. CRISPR is significant because it is much more precise, which makes it much more cheap and efficient. Biotechnology has played a huge part in the betterment of humankind through development of various vaccines and medicines and CRISPR could also play a role in the same and be quite beneficial.

According to the WHO, roughly 438,000 deaths were caused by malaria in 2015 alone, and CRISPR has been seen as a tool that could potentially eradicate not only malaria but yellow fever, zika virus, etc. Malaria is one of the many diseases we could prevent by editing genes in organisms; if research becomes fruitful, various congenital disabilities could also be prevented.

As of now, scientists from the United States and China have been given permission to conduct trials on humans which could be a cure for cancer.

The ethical dilemma

The issue with gene-editing and changing the DNA of a species is that once we go through with it, there’s no turning back. The side-effects might be noticeable only after decades, however, should we restrict ourselves and allow tens of thousands of people to die because of something that could happen? There is no clear answer. Biotechnology and ethics have troubled us for a long time. Is it moral to let a foetus if you know it will suffer from a chronic or terminal illness? Should we allow euthanasia for someone who is in extreme pain? The question of being ‘pro-choice’ or ‘pro-life’ (abortion) continues to plague us. Likewise, editing of genes through CRISPR or some other means that might be developed in the future is yet to be unanswered. Regardless of what the consequence may be, we can be assured that change is inevitable, whether we like it or not, it is open in the market and no matter how we react to it, whether we ban it or regulate it, research would go on.

We’ve seen enough movies to think about the potential dangers that could arise though possibly not as extreme (“I am Legend” anyone?). When we think of gene-editing we need not restrict ourselves to simply curing of disease but we could start to have ‘improvements’ in the human body. This begs then begs the question, does it not lead to further discrimination or disparity between people? Scientists or doctors would be incentivised to provide better services to persons with deeper pockets, however Kurzgesagt,a Youtube channel claims that such a disparity is already present and possibly would always be present. Maybe it’s better to have differences as long as the worst harm suffered is not as bad as earlier was? Maybe it would be better to have some people excel at things and other not excelling as long as those worst off are not suffering from preventable harm; though attempts should be made and continued to be made to reduce the gap differences, should we prevent ourselves from any form of advancement simply because we wouldn’t be able to have what those who are better off have?

Such questions are pertinent because though the lens with which we look at gene-editing right now might be limited to curing of diseases; the idea of a designer baby is not something people haven’t thought of. However, as with all forms of scientific advancement, we must ask ourselves, for we are at the threshold of a new era in human history. Change might not be immediate, but it is certainly inevitable. What does the future hold for us, will humanity evolve and move forward or will we use CRISPR to doom ourselves further?

 

For more information, watch:

https://www.youtube.com/watch?v=UfA_jAKV29g, CRISPR: A Gene-editing superpower, SciShow

https://www.youtube.com/watch?v=jAhjPd4uNFY, Genetic Engineering Will Change Everything Forever – CRISPR, Kurzgesagt – In a Nutshell

https://www.youtube.com/watch?v=TnzcwTyr6cE, How To Eradicate One Of Our Deadliest Enemies – Gene Drive & Malaria, Kurzgesagt – In a Nutshell

http://www.livescience.com/53015-when-is-gene-editing-dangerous.html, LiveScience.

 

POLITICAL CAMPAIGNS IN A DIGITAL AGE

Ed. Note: This post, by Kaustub Bhati, is a part of the TLF Editorial Board Test 2016.

The digital media, be it the digitalised version of 24×7 print media, the social networks or the instant messaging. The internet, much like the radio in its era, has radically altered who is electable. Before the digital landscape arrived, there was a vividly different set of candidates who would win that don’t have even a chance of winning now. Academic research has consistently found that people who consume more news media have a greater probability of being civically and politically engaged across a variety of measures. In an era when the public’s time and attention is increasingly directed toward platforms such as Facebook and Twitter, scholars are seeking to evaluate the still-emerging relationship between social media use and public engagement. The Obama presidential campaigns in 2008 and 2012 and the Arab Spring in 2011 catalyzed interest in networked digital connectivity and political action.[1]

A motivated group of people with a targeted message can, with the right approach, build mass support and make a huge impact on political or commercial issues. The charm of the internet for grassroots campaigners is comprehensible –millions of people who can be identified by their interests and concerns, and reaching them is cheap and easy. From the consumer’s standpoint, technology like Twitter and Facebook make it much easier than ever to join a campaign or take action for a given cause.[2] Digital campaigning is all about gathering the right information and using it to inform consistent, targeted communication. The best thing about digital campaigning is that while your follower base may be geographically dispersed, online they will have a tendency to cluster together around their collective interests and concerns. This makes them easier to access – searching for Facebook groups or like-minded tweets is a lot quicker than knocking on 10,000 doors.[3]

The Barack Obama campaign was the first political campaign in history to truly harness the clout of social media to spread the word, reap support and get people involved. The Obama campaign reached 5 million supporters on 15 different social Networks over the course of campaign season; by November 2008, Obama had approximately 2.5 million (some sources say as many as 3.2 million) Facebook supporters, 115,000 Twitter followers, and 50 million viewers of his YouTube channel. The campaign team didn’t just create a facebook page and a youtube channel and expect things to kick-off themselves rather they created an environment of energy and participation, imbued in the participators a sense of purpose which enabled people to connect in real time and show their support.[4] No other presidential candidate has ever been able to integrate digital media with campaign propaganda this effectively, resulting in its major contribution to the way to Oval Office. The Obama campaign exemplified the massive, evocative impact that social media can have on getting young people engaged and involved. Mybarackobama.com was not simply a website; it was a crusade that made politics accessible through social media people were already using every day. It altered the face of political campaigns forever; but even more so, it made getting involved as easy as opening up an internet browser and creating an online profile.

Narendra Modi’s campaign team has used some very innovative and timely decisions that has helped give high visibility and add potent muscle to the election campaign using the digital media. They understood the consumer insights using various survey data’s and concluded that Brand Modi was greater than Brand BJP and banked on this in their campaign. They came up with extremely catchy slogans and bombarded them through various advertisements, messages and radio broadcasts. They were catchy, easy and everybody could say them and articulate with them and hence bond with the individual on a personal basis. The various radio programs such as chai pe baat aimed at interaction with the agrarian workers and twitter replies helped facilitate the successful inclusion of these classes in the supporter base.

The largest and best-known inquiry in this turf so far is a 2012 study published in the journal Nature, “A 61-Million-Person Experiment in Social Influence and Political Mobilization,” which proposed that messages on users’ Facebook feeds could significantly impact voting arrays. The study data advocated that certain messages endorsed by friends “increased turnout directly by about 60,000 voters and indirectly through social contagion by another 280,000 voters, for a total of 340,000 additional votes.”[5]

Hence, in a digital age, where everyone is connected every second of their lives and effective media teams, focused campaigns and a barrage of propaganda to stir the sub-conscious at the decisive time has become much easier and affordable, tapping this massive pool of resource should be a must for candidates in any political elections to grow a steady and reliable support base through the extensive use of communication technologies available at their disposal.

[1] How does social media use influence political participation and civic engagement? A meta-analysis, http://journalistsresource.org/studies/politics/digital-democracy/social-media-influence-politics-participation-engagement-meta-analysis

[2] Mark Wallace, Grassroots Campaigning in the Digital Age, http://www.portland-communications.com/publications/the-quarterly-issue-4/grassroots-campaigning-in-the-digital-age/

[3] Id.

[4]  Juliet Eilperin, Here’s how the first president of the social media age has chosen to connect with Americans, https://www.washingtonpost.com/news/politics/wp/2015/05/26/heres-how-the-first-president-of-the-social-media-age-has-chosen-to-connect-with-americans

[5] How does social media use influence political participation and civic engagement? A meta-analysis, http://journalistsresource.org/studies/politics/digital-democracy/social-media-influence-politics-participation-engagement-meta-analysis

AADHAR AND THE RIGHT TO PRIVACY

Ed. Note.: This 101, by Vishal Rakhecha, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 or simply the Aadhaar Act passed in the Lok Sabha to facilitate the transfer of benefits and services to the individuals. This is done by giving them Unique Identification Numbers. At first glance Aadhaar seems like a brilliant scheme to ensure that the tax payer’s money does not end in the wrong hands. But the provisions in the Act raise some serious concerns about the way it can be used by the state to encroach upon the right to privacy of individuals. Apart from this the centrally maintained system to save the data in the Central Identities Data Repository makes it vulnerable to cyber-attacks. The huge uproar against the government is also because of the way Aadhaar was passed, as a money bill, despite the fact that it does not qualify for the same.

According to the ‘law’[1] having an Aadhaar card is not mandatory. But, almost all government schemes today require it from availing a subsidy on LPG to applying for a passport. This continuing trend of using Aadhaar cards as a proof of identity has been spilling into the private sector, since the government allows private entities to use Aadhaar as an identity proof, from getting a mobile number to wanting to sign up on matrimonial sites, it becomes impossible to conduct your day to day activities freely without having an Aadhaar card.

Despite the fact that the government is practically forcing the citizens to get an Aadhaar card, they place their trust on the regime to have some amount of reasonable standard in securing their data. To begin with the entire concept of using bio-metric scans being used is not fool-proof and there have been cases where the fingerprints of the registrar have been registered combined with the fact that unlike passwords and pass codes, bio-metrics cannot be re-issued.

The data collected is not sufficiently protected[2], say for example the fact that the Aadhaar numbers are not cryptographically encrypted and are available in a manner readable by humans. This gives scope for people to easily identify the individuals and the chances of identity theft also increase due to this. The passwords and PIN are stored in the form of hashes but the biometric data is stored in the original form. All the information about the keys and hashes in the UIDAI makes internal trust a very important basis for the protection of the data. This is clearly troubling as the people inside the system can access the data anytime they want and also makes it very easy for someone once inside to tamper with the records. There is no set procedure to carry out data inspection making the process extremely arbitrary.

The fact that Aadhaar is not able to protect the privacy of the data giver is aggravated by the way the data is maintained. The centralised system makes it even more susceptible to attacks[3] as these systems have been shown to have inherent flaws when it comes to protecting privacy. The Aadhar in particular is again more harmful as there are no justifications or reasons as to why there is a need for the centralised database. The fact that the data is localised makes it the ideal target for hackers and foreign governments. Apart from the fact that this system is more vulnerable, it is also much costlier than say a smartcard (which is followed in the UK) or an offline biometric reader. These systems are more advantageous as they are cheaper, do not require real-time access and are safer compared to the centralised system.[4]

Now coming to the Act itself which has several problems, while it is true that Act makes it mandatory to use the information only in the way specified when taking the ‘consent’ of the data giver. Firstly, we need to understand that most people who apply for the scheme are people who have little or no knowledge about the information and have no idea about the consequences of doing so could be. Even if we ignore this fact, the Act provides for section 33(1) which allows for the disclosure for the information pursuant to the order of a district judge or above and section 33(2) which allows any officer of the rank of Joint secretary and above the right to order the disclosure of the information in the interest of national security without the consent of the person.

It is extremely important to understand that an Act that was made to ensure that the money transferred from the Consolidated Fund of India to the person who deserves the money gives the government so much power to actually be able to conduct surveillance on the people is clearly problematic. This is because one, there is a blatant absence of self-imposed checks on the executive power in the mode of ensuring that the government in the way as to what constitutes a situation of national security. Two, under what circumstances the judges can authorise the revelation of the data has not been specified. This gives immense power to these bodies to swoop down and let the government use the data in whatever manner they deem fit.

Though the Act has several benefits but the very hasty manner in which it was passed and the fact that there is a lack of self-restriction on the way the state can use the information. It is understandable that there are certain circumstances which necessitate the government to monitor individuals but unless it is done in a manner which gives the state immense power in terms of the ability to clamp down on dissent whenever it wants to. This is the very reason that there is such a massive amount of criticism of the Aadhaar Act. There is still scope for amendments to be made to the law if the legislature wants to maintain the trust with the civil society.

[1] http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444976434.pdf,  Justice K.S.Puttuswamy (Retd) & anr v. Union of India & ors

[2] Japreet Grewal, Vanya Rakesh, Sumandro Chattapadhyay, and Elonnai Hickock, http://cis-india.org/internet-governance/blog/report-on-understanding-aadhaar-and-its-new-challenges, Report on Understanding Aadhaar and its New Challenges, The Centre for Internet Studies

[3] https://www.eff.org/issues/national-ids, Electronic Frontier Foundation

[4] Kritika Bharadwaj, http://thewire.in/63223/the-mission-creep-behind-the-uidais-centralisation-ideology/, The Mission Creep, Behind the Aadhaar Project, The Wire

 

Meet the New Internet, Same as the Old, Old Internet – except its not the Internet you know (Part I – a bit of Background)

(Image Source: https://flic.kr/p/67bqGj)
(Image Source: https://flic.kr/p/67bqGj)

This is the first post in my three-part series on Network Neutrality, the internet, innovation, and the future of networks. The second and third post are available here and here.

The fundamental idea of the Schumpeterian model of Creative Destruction images a continuous cycle of Creation and Destruction of monopolies, presenting a continuous story of capitalism. Of course, the entirety of the Schumpeterian economic discourse is a very complex issue, and I have my issues with parts of it, but I am using the Schumpeterian analogy here as it is relevant to the point I will be making here. The breaking point of a monopoly starts, in this limited context, with a new technology that ‘decentralises’ power, therefore challenging the existing ‘monopoly’. And this is where the Internet comes in. Continue reading Meet the New Internet, Same as the Old, Old Internet – except its not the Internet you know (Part I – a bit of Background)