COVID-19 crisis is changing Tech related Law and Policy: Surveillance, Fake news, Telemedicine, and Internet

As I view things and events around the world from the comfort of my home, this blog is my take on how regulations related to technology will get impacted due to the COVID-19 pandemic. As they say, sudden and unexpected events often lead to systematic and permanent changes.  Work from home is a mandate now, as the fear of personal contact and surface contact is prevalent, everyone has uncertainty about the impact of infection. There are even doubts on the globalization given the infection is spreading from one corner of the world to another.

Given the fact that COVID-19 is a pandemic, the authorities have commanded us to practice ‘social distancing’ (trending buzz word on social media) under the twenty-one days lockdown. Hence, there is an unwillingness to engage socially among masses now. As there are shifts in perceiving the world now, there is a shift in the understanding of technology as well. Governments around the world are now valuing its role more than ever and understanding the need for the well-drafted technology policy, as they rush to contain the spread of COVID-19.

Following are the potential changes that we can see in the technology policy of India during and after the COVID-19 crisis.

Increase in the adoption of internet services

With the reach of the internet increasing up to 500 million users and over 660 million broadband subscriptions, internet penetration in India is much evident. However, the present situation is proof that it has been a boon for us that Jio entered the market and made the internet more accessible than ever. The internet is an essential service and something that has kept the masses engaged and sane in their homes during the nationwide lockdown. India has the cheapest internet access in the world, but still, as the crisis gets over, the government will definitely consider more options of making internet services more accessible to the poor of the country which is largely suffering in this crisis. In the present lockdown state, it is important to mention the situation that exists in Kashmir where just the 2G internet is available with the speed which is good for nothing.

India has the cheapest mobile data in the world with 1GB costing just Rs 18.5 (USD 0.26) as compared to the global average of about Rs 600, research by price comparison site Cable.co.uk showed. Average Wireless Data Usage per wireless data subscriber per month is 10.37 GB.

Work from Home

Zoom, a video-meeting app, has seen a significant rise in its download over the last week. With employees are unable to attend offices, video conferencing services that work over the internet has become significant. Again, such applications make access to internet an essential service for operating the business online (a fundamental right). As the employment laws are being discussed these days to understand the place of Work from Home in the law, post the crisis policymakers will definitely deliberate on this and provide a permanent solution for it.

Certain important points for reference of readers from the advisory issued by the government in relation employment laws:

The Ministry of Labour & Employment, Government of India advised on March 20, 2020, that all public and private organizations are to refrain from terminating the services of their employees or reducing their wages.

The Ministry of Labour & Employment has extended the deadline for filing the Unified Annual Return for 2019 under eight laws that were filed on the Shram Suvidha Portal to April 30, 2020 (the previous deadline was February 1, 2020). The notification further states that authorities are not to take action against any entity that did not meet the earlier deadline.

The Employees’ State Insurance Corporation (ESIC), through its communication dated March 16, 2020, has extended the dates for filing of ESI contribution and payment. Accordingly, all contributions for the months of February 2020 and March 2020 can be filed and paid up to April 15, 2020 and May 15, 2020, instead of March 15, 2020 and April 15, 2020, respectively.

The Government of India will contribute the employer contribution (on behalf of companies) and employee contribution (on behalf of employees of those companies) towards the Employee Provident Fund Organization (EPFO) for the next three months for establishments with up to 100 employees meeting certain base salary thresholds.

All EPFO members (employees) will now be able to withdraw up to 75 percent of their total EPFO fund or an amount equivalent to three months of their salary, whichever is lower. The amount withdrawn from EPFO shall be non-refundable, and the employees do not need to return the same to their EPFO account.

Streaming services and regulations

In the process of home quarantine, the dependence on the streaming services is so much that the internet service providers have asked streaming platforms like Netflix and Amazon Prime to reduce the bits rate, in order to lower the stress on networks. The streaming platforms have duly conceded to this demand considering the continuous requirement of providing services to consumers. Consumers are realizing the benefits of streaming platforms and hence there is going to be a potential increase in subscriptions going forward, converting to paying users. In terms of policy-making, if streaming services have the potential to displace traditional entertainment services, the Indian government will look for regulating the content more than ever. Government is already in consultation with the stakeholders regarding options of self-regulation or government regulation.

Increase in demand for spectrum to meet the consumer demand

The percentage of connections that are based on a wireless medium is a staggering 96% approx. Therefore, in the light of increased adoption of the internet for continuous entertainment and work at home has led to increased stress on telecom operators. Therefore, with the 20% sudden increase in demand, telecom operators have sought more spectrum allotment from the government.

A new perspective for e-commerce

The government has rightly considered E-commerce as the provider of essential services during the present situation. Their adequate performance under the lockdown can provide them with a deep sigh of relief, as for the past few months, their food and grocery delivery services have been under the strict supervision of the government. There are several lobbies representing the brick and mortar retailers of groceries and food that have targeted e-commerce market and posed it as a threat to the business of offline retailers across the country. The opportunity for them to legitimize the need for online service during the lockdown has done what demonetisation did for digital payments.

Offline print becomes the victim

Online media channels are also opportunists that are gaining certain traction in terms of consumers. The newspaper industry seems to have been hurt by contact to contact the spreading nature of the COVID-19. Various online posts and WhatsApp threads are flowing in the online media that newspapers are potential vectors of COVID-19. In one of the cases, the Times Group has sent a legal notice to The Print for an article which suggested that COVID-19 can potentially spread through newspapers as well. Therefore, there could be a rise in online media usage and could lead to a rift between offline and online media.

A struggle to contain fake news or misinformation

The sensational way in which COVID-19 crisis has led to the nationwide lockdown is much due to the sensationalized content related to COVID-19 which is spreading through the social media across the country faster than the virus itself. The amount of misinformation spreading about COVID-19 is at large scale, and platforms are struggling to deal with it, especially given the lack of continuous moderation by social media platforms which are not warranted legally. This has given several blows to the effectiveness of lockdown given the people believed on certain misinformation such as cow urine is the cure of COVID-19, the religious congregation will protect from the disease etc, which led to people not take lockdown seriously. Understanding the struggles with automatic moderation of the content on the internet, the government can sooner than before enforcing its strict moderation policy which undermines the right to free speech.

The twenty-one days lockdown recently faltered when an exodus of the large number of migrant workers from urban cities like Delhi and Jaipur came in light. The Supreme Court’s division bench in a hearing on Tuesday, while reviewing the steps that the central government has taken to provide relief to the poor migrant workers during the lockdown, expressed serious concern over spread of fake news or misinformation regarding lockdown’s duration on social, electronic and print media causing the mass exodus of migrant worker from cities to their homes in villages. Read the SC’s order here. Centre in this light has sought direction from SC that no media stakeholders should publish COVID-19 news without ascertaining facts with government. Although, The constant and close monitoring has been held as not warranted by law as per various precedents of Indian courts.

Privacy, necessity and proportionality

While the right to free speech could be threatened in the future due to the present crisis, the right to privacy has already dealt with several blows. Considering the situation of emergency and lack of any comprehensive law protecting the privacy, the privacy of a number of citizens have been compromised. The health status of quarantined/ or infected is open to all as their homes are being marked and personal details are being made public on social media. Governments are openly surveilling quarantined people for ensuring the enforcement of quarantine and inviting bids from technology companies to procure technology that can make continuous surveillance more effective. In India, several governments are already tracking citizens by keeping a tab on their phones or utilizing geofencing. The crisis has legitimized much longing plans of the government to create an infrastructure which can assist in surveilling its citizens whenever the need arises. Given the opportunity, the Department of Science and Technology has invited proposals and has set up a task force for building surveillance, AI and IoT tools.

As several privacy activists have opinions against the government’s plan to keep track of infected persons. If litigation arises, the question is whether the present circumstances will meet the necessity and proportionality test in order to justify the violations of privacy?

Drones as part of law enforcement

Drones, in some cities, are being used for surveillance to ensure that the current curfew is not violated. Drones allow the police to surveill and document, in a low risk manner. In cities like Chennai, they are being used to disinfect areas. If all goes well in these difficult times of crisis, then expect that police will place more orders for drones going forward, and many tasks will be automated.

Telemedicine guidelines

One of the prime examples of the proposition that experience of COVID-19 crisis will pace up the policy-making with respect to regulate technology is the rollout of a set of guidelines for telemedicine or remote delivery of medical services. Telemedicine practice means that doctors will now be allowed to use information and communication technologies as per guidelines for the exchange of valid information for diagnosis and treatment of ailments with patients. In order to assure steady and quick medical services during the nationwide lockdown, Ministry of Health and Family Welfare finally sanctioned the guidelines that have been proposed ten years ago. Globally, telemedicine has emerged as a front-line weapon against the COVID 19 pandemic. The situation under present crisis motivated the government to provide the concept of telemedicine among masses explaining that the unnecessary exposure of people involved in the delivery of healthcare can be avoided using telemedicine, as patients can be screened remotely.

Balancing the Regulation and the Innovation: GDPR and AI

Artificial Intelligence (AI) sector is promising an altogether new generation of technological advancement being highly disruptive and productive for the Industry 4.0. AI is a constellation of technologies performing different cognitive functions- data analysis to language learning that assists a machine to understand thoughts, experiences and senses. The major functioning of A.I is to analyse the data and provide responses in accordance to the collected intelligence, basically AI provides a sui generis ability to analyse the big data applications in its various dimensions. Therefore, AI is most about the computer-generated behaviours which is considered intelligent in human beings. The concept of AI has existed for some time now, and contemporarily it is a reason of rapidly increasing computational power in industry (a phenomenon known as Moore’s law) [i] leading to the point where AI market will surpass $100 billion by 2025.[ii] AI is significant as it will transform the medium of interaction between humans and technology resulting in overall societal advantages such as inventiveness, innovation and confidence.

With all the advancement that AI will bring in the industry, it brings a lot of concern for regulators across the different jurisdictions. One of the major concerns with the application of AI is its character of feasting on large amount of data and hence its impact on data-privacy. This is making the regulators hesitant in order to allow AI start-ups to initiate any kind of large-scale activities based on AI technology. AI start-ups are soon going to hit a major impediment as the European Union’s General Data Protection Regulation (GDPR) is in effect now. The GDPR, adopted in April 2016, is being considered as the intention of European Union (EU) to form a strengthened, integrated and unified data-privacy mechanism within the EU. It aims primarily to provide the EU citizens an instrument of more control over their personal data and its protection. It provides a framework in which individuals will have liberty to ask questions that how the companies or institutions are processing and storing their personal data. The challenge of full accountability to consumer as strictly put mentioned by the GDPR makes the collection of data by more difficult impacting the AI start-ups which are absolutely dependant on varieties of personal data for machine-learning initiatives.

When it comes to knowing the specific limits that GDPR will put on AI start-ups and services then it can be explained in two-fold impacts. Firstly, processing of data has direct legal effects on the customer, such as credit applications, e-recruiting, or workplace monitoring, the GDPR will completely limit the usefulness of AI or these purposes as the Article 22 and Recital 71[iii] strictly provides for the requirement of explicit consent for each and every unit of data that is used making the functioning of the market slower. Secondly, the algorithms that the AI developers use for the application evolve themselves making it later not at all understandable, and this data combination becomes very complex to regulate.[iv]

The way out for AI start-ups seems to be in the organisational procedures that can standardise the obtaining of consent for the governance of the data within a well-structured data management framework. To be in compliance with the GDPR while processing the huge amount of data it is required that AI developers provide a fixed policy of filing an automated appeal to consumers. Illustrating this it is required that if a consumer is denied the service by any AI application, developers should provide a chance to know the reason to that consumer i.e. an appeal. It is worth mentioning that it is humans that have created, modified and implemented AI technology and they also have the potential to make it compliant and moderate according to the reasonable considerations of regulators. GDPR is not an evil for AI applications but it is just a regulatory initiative with which if AI technology develops, it will get more confidence of the potential consumers.

[i] ICO, Big Data, Artificial Intelligence, Machine Learning and Data Protection, Information Commissioner’s Office, https://ico.org.uk/media/for-organisations/documents/2013559/big-data-ai-ml-and-data-protection.pdf.

[ii] Todd Wright and Mary Beth, The GDPR: An Artificial Intelligence Killer?, Datanami, https://www.datanami.com/2018/02/27/gdpr-artificial-intelligence-killer/.

[iii] David Roe, Understanding GDPR and Its impact on the Development of AI, CMS wire, https://www.cmswire.com/information-management/understanding-gdpr-and-its-impact-on-the-development-of-ai/.

[iv] David Meyer, AI Has a Big Privacy Problem and Europe’s New Data Protection Law Is About to Expose It, Fortune, http://fortune.com/2018/05/25/ai-machine-learning-privacy-gdpr/.

Understanding the ‘Technology of Regulation’: Regulating the Scientific Advancements

Regulations are most often considered as adversaries of technological changes. The position of technology is to stimulate the growth of the enterprises, markets, and industries, while the periodical regulations as issued by the government, represents the limits that are imposed on this growth. This is the general conception of regulations that is no doubt everyone has regarding the regulation of technology since the 1970s when the debate started which was focused on controlling the nation-states expedition of nuclear energy, supersonic transport, and food additives. Today, the debate continues as the fears of technologies such as dark web, genetically modified foods etc. calling for regulations as precautionary measures. And to an extent, the conflict is unavoidable.

The dynamics that are induced by the technology revolution are credited with half or more productivity growth. The process of ‘creative destruction’ by entrepreneurs who devise new ways of producing goods and services is potentially a far more potent source of progress that is short-term price competition, as pointed out by Schumpeter. However, regulation can retard all of Schumpeter’s three stages of technological change: invention, innovation, and diffusion.

Every negative in the whole story is just not about the regulations. An anxiety amounts when there is talk about driverless cars, artificial intelligence, and social media, regulation is the only way to relax the stress of uncertainties that these technological changes will bring in lives of humans. These are not the views of legislators only, but also from the people who are driving these technologies and people who are driven by these technologies.

Is there a way to balance regulation and technology? The way seems to be accepting the change in the technology of regulation. Regulations are being imposed in traditional ways only such that considered to be of one type and of effecting in one way only. However, there is a way to explore more in this regard, just as there are many different types of technologies, there are many different types of regulations. Different technology instruments, such as technical requirements, performance standards, taxes, allowances, and information disclosure, can have very different effects on technological change and other important consequences.

One of the main reasons that the present regulatory technology is not rendering desired results is that the state regulators are not dedicating the time, energy, or funding to the regulations in the way the technology is developed. The key to bringing in the same creativity and inspiration into the regulations, such that the incentivized-approach must be followed, is to allow the private regulators to build the regulatory systems of the digital age.

The drivers of this shift are often ultimately regulated companies themselves- looking to define a reasonably reliable playing field on which they and their competitors meet. Private regulators are already regulating to a certain extent by having autonomy over the governance of choosing their terms and conditions of the ‘agreement’ which is the main source of the entire corporate control. Another compelling reason for bringing up the private regulators in the game is that the private entities are closer to what is happening, at increasingly high speed, on the ground, and in the cloud is not going to go away till the time they are responsible for developing new technologies.

It is very important to create a supervised cohort of private regulators. This gets the best of both worlds: the regulations that follow the incentivized approach and being accountable to the government and the understanding of these regulations to the market players in very clear terms. The question of arbitrariness because of these regulators cannot creep in as the licenses to regulate will always be in the hands of the government. Further, they have to keep their regulatory clients happy by developing easier, less costly and more flexible ways of implementing regulatory controls.

The sooner we adopt the new technology of regulation and move beyond the idea that conventional regulation can handle the challenges of our powerful new technologies, the better. The idea to regulate the innovative and disruptive technologies is a useless idea unless we figure out how to harness the power of markets, and new approaches to government accountability, to that task.

(This blog series will explore and cover all the areas of regulations that are present and required for adjusting the balance with certain scientific advancements. Suggestions and Improvements are invited from readers)