There is a need to move away from the traditional regulate-and-forget approach, which suffers from pacing problems, in favour of a more agile, iterative, experimental regulatory approach for emerging technologies
During the recent Digital India Dialogues for Leaders on the principles of the forthcoming Digital India Act, the Minister of State for Information Technology Rajeev Chandrashekhar mentioned that emerging technologies will be regulated through the prism of user harm. While the industry can suggest guardrails, the government will not ban anything in the innovation space, unless it is linked with user harm. The Act is likely to have a dedicated chapter on emerging technologies.
While preventing user harm is a laudable objective, nuance is important. Adopting an overly prescriptive route exclusively focusing on user harm from emerging technologies may be overkill for three reasons.
First, emerging technologies are called "emerging" for a reason. They are still in infancy, evolving, with scope, risks, potential, impact and harms, not being fully understood. Consequently, focusing on harm, the contours of which are not understood properly, may neither be feasible nor optimal.
Second, all technologies, when misused, can cause user harm. Thus, the focus needs to shift from the possibility of harm to scenarios in which it can happen. Moreover, harm often depends on how users deal with technologies. Users' understanding and capabilities differ, so does the likelihood of harm. Thus, focusing on accountability, redress, and liability frameworks around applications of technologies, than technologies themselves, would make more sense.
Third, a zero-tolerance-to-harm/risk approach may adversely impact innovation and competition. Given that emerging technologies rely on combinatorial innovation, i.e., build on one another, the fear of harm-linked liability may discourage new releases and breakthroughs.
Emerging technologies do not remain emerging forever. They go through stages of maturity, scale, and criticality, and eventually become outdated or fade away in the process. Thus, emerging is essentially a phase, with which its regulatory approach must resonate.
There is a need to move away from the traditional regulate-and-forget approach, which suffers from pacing problems, in favour of a more agile, iterative, experimental regulatory approach for emerging technologies. Here are seven principles for its design.
First, regulations of emerging technologies should pursue dual objectives of promoting innovation and addressing harm. We need to recognise innovation as a social good. One doesn't need to come at the cost of the other, as both are equally important.
Second, regulations should come with expiry dates. They should be periodically reviewed, to determine continued relevance, considering market maturity. With a better understanding of applications, costs, and benefits, regulations can focus on specific risks, market failures, while driving innovation, competition, and enhancement of user benefits. Administrative and compliance costs of regulations must also inform their design. This can be enabled through the law prescribing the inclusion of sunset clauses and cost-benefit analyses for regulations.
Third, regulations must adopt a proportionate risk-based approach. The pursuit of harm-free technologies without taking into account potential benefits may be futile. This would require designing clear indicators of acceptable risk levels, based on data, and targeting scenarios wherein such thresholds are breached. Approaches like banning technologies and infringing on the fundamental rights of businesses, should be avoided. Appropriate mechanisms to activate safety brakes and ring-fence vulnerable users from harm should be designed. Investments in state capacity would be essential in this regard.
Fourth, regulations should acknowledge that technological problems are best solved through technological solutions. Bans betray the possibility of finding such solutions. For example, an enhanced risk of hacking of computer resources may be best addressed by improved digital security infrastructure. Anti-drone technology is being developed to address the issue of rogue drones. Experimental regulation crafted with the specific aim of promoting such technological solutions will nip the problems in the bud. An ecosystem wherein technologies can be stress-tested for ascertaining harms, costs, benefits and solutions would need to be created.
Fifth, regulation of emerging technologies cannot happen in isolation. A collaborative approach with industry, experts, and civil society is crucial to consider diverse perspectives, monitor progress and compliance, identify vulnerabilities, and take corrective actions. From design to implementation, supervision, grievance redressal, and finetuning of regulations, stakeholder involvement is a must, while preventing regulatory capture.
Sixth, regulations must foster research and development and partnerships between government, academia, industry, and civil society. Such collaborations could enable the development of inclusive standards for technology design, use, disclosure, privacy by design, data protection and security, and eventually evolve into co-regulatory frameworks. Such partnerships can also promote the development of ethical frameworks around clear technological purpose and responsible use of technology.
Lastly, regulations should empower users and avoid paternalistic approaches. Incentivising transparency, quick turnaround time, timely dispute resolution, grievance redressal, feedback loops, and putting a cost on unreasonable delays, opacity, and unaccountability, through financial and reputational disincentives, can go a long way in creating a self-sustainable ecosystem.
An experimental approach to regulation of emerging technologies is in line with the government's vision of ensuring an open, safe, trusted and accountable internet, and should be adopted in the Digital India Act.
Originally Published by The Indian EXPRESS
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