By Suraj Singh, VP & Head Legal, Wells Fargo India Solutions
On my first day as a lawyer, I asked the following questions to my senior partner -
• Why do the courts still use typewriters for recording evidence?
• Why should the lawyers wear a black coat, black gown and fasten our necks with white bands even in India’s hot and humid weather?
• Why do we address our judges ‘your Lordship’ or ‘your honor’ and use sentences like ‘your Lordships may kindly be pleased to adjourn the matter’ for simple postponement of a case?
Law is an old and noble profession
Though my questions remained largely unanswered, I understood that law is an old profession with lots of entrenched unique processes and behaviors. I also realized that it would take a while for the courts and lawyers to adopt newer technologies and to figure out how to be more efficient. The court procedures are highly paper-based, whether it is filing of hard copies for initiating litigation, publishing of case lists (called as ‘cause list’) or the reliance on documentary evidence. Though the law firms that catered to corporates clients were relatively more advanced regarding technology, especially the use of PCs and e-mails, it did not fundamentally change the perception on adoption of technology. The prevailing belief was that ‘it is better to do something an old way that has always worked, than explore some new way that is untested.’ In fact, though some lawyers have started using new tools and devices supported by information and communication technology, they do so in a way that merely replaces the old functionality without truly making use of technology.
While courts in Europe and the US are embracing big data to fix logjams, Indian judiciary is characterized by slow-moving procedures and long delays in the verdict that stretch for decades.
The challenge in adopting innovative technologies comes not only from such perception but the limitations of the legislation itself. For example, the only legislation on telephony is the Indian Telegraph Act, 1885 of the 19-th century colonial era. There is still no legislative or legal blessing for fundamental Internet concepts such as net neutrality in India. Sometimes, regulators like Department of Telecommunication (DoT) and Telecom Regulatory Authority of India (TRAI) have taken the initiative to fill the regulatory void.
AI has the potential to change the way that legal work is done, the way law firms conduct business, and the way lawyers deal with their clients
A good example can be seen by TRAI’s rejection of Microsoft’s Free Basics scheme and upholding the principle of net neutrality.
While we all know that ‘data’ is at the core of Artificial Intelligence (AI), there isn’t any legislation in India focused on protecting privacy rights in data. In 2009, the IT Act was amended to include section 43A, which creates a private cause of action for compensation by any person against a company that is negligent in implementing and maintaining reasonable security practices and procedures in the handling of sensitive personal data. This provision, which created statutory tort liability, was meant to assuage the concerns of foreign outsourcers of data during the outbreak of various identity theft cases.
Though this is restricted to sensitive personal data, the provision is practically unenforceable because tort cases take decades to be heard in India. The likelihood of anyone successfully suing a company and obtaining compensation under section 43A within a reasonable period is remote. Section 43A does not address issues such as whether people have privacy rights in data, what data can be used for and notably, whether it can be sold or transferred.
The limitation of liability under the IT Act is also not suitable for the Artificial Intelligence (AI) era. Section 79 of the IT Act embodies the concept, imported from US law, that IT service providers have to be treated in the same manner as phone companies or the postal service. They are mere carriers of content and cannot be held liable for that content.
Accordingly, section 79 exempts intermediaries such as ISPs from liability for any third party information, data or communication link made available or hosted by them except in certain limited circumstances. However, this concept of treating ISPs as telephone companies is woefully inadequate even for the new app-based technologies which was demonstrated by Uber’s claim that it is only an aggregator and cannot be held liable for what occurs during the taxi ride.
The Winds of change
There is no escape from technology, and the legal landscape in India cannot be immune from technology transformation for long. The new economy, newer technologies, and growth of in-house counsels, especially those working in technology companies, are challenging many of the traditional assumptions and concepts of law and procedures. India has become an international technology hub with cities like Bengaluru and Hyderabad vying with Silicon Valley. In fact, the rapid development of technology and its impact on our daily lives can be witnessed in everything we do. The in-house counsel today works in an office environment where business utilizes cutting edge technology to produce results. Being only responsive to the rapidly changing technology is no longer an option. Legal professionals, whether in-house or external, cannot view themselves as lone wolfs who bask in the glory of legal dialectics. The lawyers cannot confine to rendering legal advice and shield with disclaimers any more. The tools lawyers use to conduct research, review documents, assemble documents can be woefully inefficient if no technology is used. AI and Machine Learning can introduce automation at the task level, and allow the lawyers to focus on more complex tasks. AI has the potential to change the way that legal work is done, the way law firms conduct business, and the way lawyers deal with their clients. Change can be brought on through pushing existing ideas. The truth is ‘there is no escape from blockchains and AI’. As Victor Hugo said “Nothing is as powerful as an idea whose time has come” and we lawyers, better be prepared!