Why is it in the News?

The Ministry of Electronics and Information Technology (MeitY) reportedly issued an advisory on 1 March 2024 (Advisory) to “intermediaries” and “platforms” hosting artificial Intelligence (AI) including generative AI-based models.

Context:

• The Ministry of Electronics and Information Technology (MEITY), previously recognized as the Department of Electronics and IT (DEITY), has come under scrutiny regarding its endeavors to govern technology and the Internet.
• It is imperative to examine MEITY's recent advisory regarding generative Artificial Intelligence (AI), exploring its legal foundation, uncertainties, and repercussions for technology regulation in India.

What is the Recent Advisory by MEITY on AI Regulation?

• Regarding the Regulation of AI Technologies: The advisory urges tech firms to ensure that their AI models, including Large Language Models (LLMs) and Generative AI, prevent users from hosting or displaying unlawful content, addressing concerns about potential misuse.
• Quality Assurance and Testing: It stresses the use of reliable and tested AI models while cautioning against deploying under-tested or unreliable ones without explicit permission from the Government of India, aiming to uphold quality standards and mitigate associated risks.
• Advisory on Transparency and Accountability: The advisory highlights the importance of transparency and accountability in AI deployment, recommending appropriate labeling of AI models to acknowledge potential fallibility or unreliability, reflecting a broader commitment to ethical AI practices and user awareness of associated limitations and risks.

Analysis of Ambiguity Regarding the Legal Status of Government Advisory:

• Lack of Statutory Authority: The uncertainty surrounding the legal status of MEITY's advisories is a key issue in assessing the government's regulatory power and its impact on stakeholders.
  • Unlike established regulatory bodies such as SEBI, MEITY lacks explicit statutory powers to issue binding directives or advisories.
  • This absence of a specific legal framework leads to interpretation challenges and questions about the enforceability of MEITY's directives.
• Uncertainty on MEITY’s Advisory Power: The IT Act of 2000, which primarily governs technology regulation in India, does not grant MEITY the authority to issue advisories on emerging technologies like AI.
  • While the IT Act addresses electronic records, digital signatures, and cybersecurity, it does not specify MEITY's mandate to regulate AI or other technological advancements.
• Lack of Defined Terms and References: The term "advisory" lacks a precise definition under the IT Act or other relevant legislation, allowing MEITY to issue directives that carry the weight of official recommendations without a clear legal foundation.
  • This ambiguity leaves stakeholders, including technology firms and legal experts, uncertain about the legal consequences of non-compliance with MEITY's advisories.
  • Furthermore, MEITY's advisories often lack explicit citations of legal authority or references to specific legislative provisions, contributing to perceptions of arbitrary regulatory actions.
• Compliance Challenges: In the absence of clear penalties or enforcement mechanisms tied to MEITY's advisories, compliance becomes discretionary rather than obligatory.
  • This situation underscores the ambiguity surrounding the legal standing of MEITY's regulatory directives, raising concerns about accountability and procedural fairness in technology regulation.

Additional Concerns Regarding Government’s Advisory on AI:

• Transparency Issues and Hasty Policymaking: MEITY's advisories, particularly those related to AI regulation, exhibit a pattern of expedited policymaking driven by media events, lacking thorough evaluation or stakeholder input.
  • Released with limited transparency, these advisories fail to provide comprehensive information, undermining the credibility of MEITY's regulatory decisions.
• Ambiguous Terminology and Ministerial Clarifications: The recent AI advisory introduces vague terms like "bias prevention" and proposes an AI model licensing system without clear definitions or legal framework.
  • Ministerial clarifications on social media platforms add to the confusion, leaving terms undefined and enforcement mechanisms uncertain.
  • This ambiguity contributes to stakeholder uncertainty and undermines legal clarity.
• The decline in Administrative Standards and Overreach: MEITY's reliance on advisory regulations marks a decline in administrative standards, sidestepping formal legislative processes and stakeholder consultations.
  • The extension of IT Rules, 2021, to regulate digital content further illustrates regulatory overreach.
  • Additionally, the influence of social media metrics on policy decisions reflects a departure from deliberative governance.
• Threat to Freedom of Expression: MEITY's regulatory actions, including AI governance advisories and social media content moderation directives, risk infringing on online freedom of expression.
  • The vague and arbitrary nature of these directives may lead to self-censorship among individuals and organizations, fearing repercussions for expressing dissent or challenging government policies.
  • This suppression of free speech undermines democratic discourse and diversity in the digital realm.
• Expansion of Surveillance and Control Measures: Digital authoritarianism often entails expanding state surveillance and control over online activities.
  • MEITY's regulatory efforts, such as implementing IT Rules, 2021, and proposing AI governance measures, could facilitate heightened government surveillance and online content censorship.
  • This erosion of digital privacy rights jeopardizes individual autonomy and fosters a climate of apprehension and self-censorship among internet users.
• Impact on Innovation and Technological Advancement: MEITY's regulatory overreach and legal ambiguity pose substantial obstacles to innovation and technological progress in India.
  • Uncertainty surrounding compliance obligations and enforcement mechanisms discourages investment and innovation in emerging fields like AI.
  • Moreover, burdensome regulatory requirements may stifle entrepreneurship and impede the growth of India's technology sector.

Why Regulate the AI Sector?

• The regulation of Artificial Intelligence (AI) represents an evolving landscape as governments navigate the potential benefits and pitfalls of this influential technology.

Reasons for Regulation:

• Risk Management: AI carries the potential for bias, discrimination, privacy breaches, and safety concerns. Regulations serve to mitigate these risks effectively.
• Transparency and Understandability: Many AI systems operate opaquely, complicating comprehension of their decision-making processes. Regulations can foster transparency and clarity.
• Establishing Accountability: Regulatory frameworks can delineate clear lines of responsibility for the creation, deployment, and utilization of AI systems.
• Building Public Confidence: Well-defined regulations can instill public confidence in AI technologies, promoting their conscientious development and application.

Way Forward:

• Unified Effort: Combating the challenges posed by digital authoritarianism demands a unified effort to uphold democratic principles, foster transparency and accountability, and protect fundamental rights in the digital realm.
• Scrutiny of MEITY’s Regulatory Measures: MEITY's regulatory initiatives must undergo thorough scrutiny and oversight to ensure alignment with democratic norms and respect for individual liberties.

Conclusion

MEITY's advisory regulations raise pertinent questions regarding its legal jurisdiction, transparency, and impact on technological advancement in India. The ambiguity in terminology, swift policy formulation, and reliance on social media for dissemination weaken the credibility and efficacy of regulatory measures. Addressing these concerns necessitates a reassessment of MEITY's regulatory strategy and a commitment to transparent, inclusive governance practices.