Aman Gupta, an Assistant Professor of Law and Technology from the reputable West Bengal National University of Juridical Sciences, Kolkata divulges information with respect to an unventured aspect of Cyber Law and what students should know about it.
Q) What does the domain of technology law encompass?
The domain of technology law has broadened with the emergence of newer forms of technology and its usage, and with law one can generally exercise their discretion by choosing regulation or prohibition.
In India, the starting point is the enactment of the Information Technology Act, 2000 (IT Act). The IT Act primarily regulates electronic commerce and accords legal recognition to digital records and digital signatures. The Parliamentary debates show that even at the time of the enactment of the IT Act, parliamentarians were aware that further changes would be required to regulate emerging technologies. We also had legislation and amendments made in the sphere of intellectual property laws to protect the rights of emerging technologies.
Over time, with innovations, the scope has considerably broadened. When we think of technology law today, we are not only thinking of e-commerce and digital records but also of regulation of artificial intelligence (AI), digital payments, cryptocurrency, social media intermediaries and broadcasters, data protection, and digital privacy, along with the novel application of existing spheres of law, such as copyright law, banking law, competition law, gambling laws to transactions taking place over the internet.
A key development has been the India Stack, which aims at the inclusion of citizens into the formal economy.
This becomes quite clear when one views the present body of law relating to technology. For example, the scope of regulation provided by the IT Act has been broadened, via amendments to the Act and various rules, to provide for regulation of personal data, social media intermediaries, online publishers, and gaming service providers.
The Parliament also has recently enacted the Digital Personal Data Protection Act, 2023, which allows for the processing of digital personal data. In addition, there are also several sectoral regulators, such as the Reserve Bank of India, IRDAI (Insurance Regulatory and Development Authority), and CCI (Competition Commission of India) that have issued their own set of regulations.
Heading into 2024, the scope of laws is only expanding. IT Act has been found to be limited and it has been proposed that it be replaced with the Digital India Act. From the information available in the public domain, it appears that the Act will contain provisions relating to digital government, open internet, online safety and trust along with regulation of intermediaries, accountability, and emerging technologies. This is a much wider scope than the existing provisions of the IT Act.
Further, the draft Broadcasting Services Regulation Bill, 2023 has been introduced in the public domain which proposes regulation of over-the-top streaming and digital news platforms.
Q) Given the technological revolution taking place, do you think Technology Law could be a lucrative career option? If yes, then how?
Absolutely. With the speed at which technological developments and investments are taking place, India will require experts in technology law in various roles, who are not only aware of the Indian legal regime but also the governance models in other jurisdictions.
We are already seeing the emergence of several law firms and practitioners that are specifically focusing on technology law or that have started technology law practice along with their core competencies. These law firms advise clients on data privacy and protection, intermediary responsibilities, and due diligence apart from sectoral advisory on issues relating to fintech, gaming, AI deployment, and cloud servicing.
Similarly, companies that deal with technology-related sectors are also increasingly hiring lawyers for in-house roles. The scope of an in-house lawyer is broader in this regard as they are often expected to provide 360-degree solutions in the sector in which the company operates and provide managerial insights.
As regulations increase, so will the disputes and the requirement for litigators who can appear before courts, arbitral panels, and regulators in various technology law disputes. However, this space is at its nascent stage. The tendency that I have seen is to engage with lawyers who are generalists, who are, in turn, assisted by specialist law firms or in-house counsels.
Lastly, I have mentioned above how laws are often enacted after the emergence of technologies. This requires India to possess lawyers dealing with public policy who can understand the technologies, analyse the practices in other jurisdictions, educate the next generation of potential lawyers, and propose and develop regulations, often working alongside governments and regulators.
In my own experience as a faculty, the demand for subjects and insights relating to technology laws has also increased post-pandemic.
I must add that I believe that development and investment in technologies will also mean an increase in the engagement of lawyers not dealing directly with technology laws. For example, a company that deals with technology will require lawyers who can advise on issues pertaining to company laws, employment laws, mergers and acquisitions, lending transactions, and human rights. Thus, it is only going to be a net positive for lawyers.
What this will require from the upcoming generation of law students is to engage in interdisciplinary areas. To be able to assist clients or governments with legal regulations requires a knowledge of the underlying technologies and their societal impact. One area where such knowledge is becoming evident is artificial intelligence audits, that help identify the risks in AI deployment and develop safeguards to avoid the risks.
Further students can look into the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice's report on "Strengthening Legal Education in view of emerging challenges before the
Legal Profession", which recommends the inclusion of tech law/ cyber law as mandatory subjects.
Q) When it comes to students choosing a course such as Cyber Law or Technology Law, what colleges in India offer such courses, and what avenues would it open for them in the future?
At present, the Bar Council of India’s Rules of Legal Education do not mandate cyber law or technology law as mandatory subjects. However, several law universities do offer such subjects for students keeping in mind the legal and technological developments. Universities have also started offering additional subjects relating to technology law.
Speaking from my own experience at the West Bengal National University of Juridical Sciences (WBNUJS) at the undergraduate level, a paper titled Science, Technology and Law is mandatory for students to enable them to be introduced to the technicalities involved in various technologies and their regulation. The course enables them to have a holistic perspective of the subject area. In addition, there are various optional subjects such as Information Technology Law, Law of Privacy, Antitrust, Technology and Innovation, and Cyber Crimes that students can opt for depending on their interests.
The practices regarding optional subjects are similar in other top national law universities, such as the National Law School of India University (NLSIU), The National Academy of Legal Studies and Research (NALSAR), National Law University, Delhi (NLUD), National Law University, Jodhpur (NLUJ), Gujarat National Law University (GNLU) and so on, and private universities such as Jindal Global Law School and Symbiosis Law School.
At the postgraduate level, specialisations in Technology Laws are also being offered. WBNUJS offers a Law and Technology specialisation that requires students to study technology law-related subjects such as Introduction to Science, Technology & Law; Healthcare Technology and Law; Artificial Intelligence Usage and Ethical Implications; and Cyber Law and Cyber Forensics.
Students can also opt for subjects relating to Biotechnology Law, FinTech Laws and Privacy, Data Protection, and Technology. JGLS also has started a master's programme in Intellectual Property Rights and Technology Laws.
Beyond these, several universities, such as WBNUJS, NLSIU, NALSAR, NLUD, and JGLS also have the practice of inviting practitioners for courses to offer students practical insights that go beyond the theory.
Regarding the avenues for students, several students have been able to secure positions in law firms, companies, and policy think tanks working in the space of technology law. We also have seen several students who have secured scholarships for master's and doctoral degrees abroad to further specialise in technology law-related aspects and are occupying key positions in technology-related organisations. I must also mention of entrepreneurial students who have been able to harness technology to provide solutions in the legal sector, such as SAMA, which provides online dispute-resolution services.
Q) Since digital crime is on the rise, especially in countries like India, how do you think an expert in Cyber Law can extend their help to the masses?
There are several levels at which this question can be answered. I will categorise them on two levels:
1. Access to legal aid services
2. Outreach and Awareness programmes
On the level of providing legal aid services, legal aid services are being run under the aegis of the National Legal Services Authority, which provides free legal aid to persons from marginalised communities, women and children, and persons below a certain income level. However, there is scant information available on pro-bono work relating to cyber law matters that have been undertaken.
I believe that this is a space that requires further development in India. If you look abroad, there are specialised pro-bono legal services, such as the Harvard Law School’s Cyberlaw Clinic, which provides services to clients on issues relating to cyber law while also enabling students to gain practical experiences. Such dedicated spaces are slowly developing in the Indian context.
I am aware of the Software Freedom Law Center (SLFC), a legal services organisation, which has initiated a Digital Defenders Network, where a community of lawyers are trained and then provide pro bono legal services to citizens on cyber law issues. However, this is an emerging area where more developments can take place.
On the issue of generating awareness about the prevention of cyber-crimes and avenues available for redress, the central and state governments, legal aid service authorities along sectoral regulators have taken several steps to spread awareness. There are also individual lawyers, organisations, and think tanks who regularly write columns or have spoken about the same in videos on social media platforms.
However, there is a desire to have more coordination between various stakeholders: governments, regulators, law universities, advocacy groups and think tanks to organise them on a mass scale.
One major problem, which is common to all legal sectors in India, is the lack of translation of laws into local languages. Further, laws are drafted in complex legal language, which makes it harder for the masses to understand them. Cyber lawyers can greatly assist in this process of translation and simplification of the law.
Q) Given the surge of legal tech development in India, how do you think lawyers would come to play a role here? Can it be a harmonious conjunction, or, can obliterate the role of lawyers?
I do not believe that the role of lawyers will be obliterated. Rather, it is going to be lawyers leading the technology in providing solutions, much like it has been done for several decades now. Given the sudden popularity of the use of AI tools, I can understand why such concerns have emerged, but there are still ongoing debates about how far we are from AI superintelligence.
For starters, lawyers and researchers have already been using several legal search engines, powered by natural language processing algorithms, that help in finding case laws from various national and international courts. Lawyers also use tools for proofreading and editing documents. Technology has also enabled hearings to take place virtually, allowing greater access to justice and transparency in the functioning of courts.
The emerging areas where we have seen the use of technology is the drafting of contracts and pleadings. There have been AI tools that have emerged that enable the drafting of simple pleadings and contracts. One can also ask for specific clauses that may be required in a transaction. However, as can be seen from the incident in the United States District Court for the Southern District of New York, AI tools can hallucinate, that is, generate fictitious cases and information. Thus, human oversight and intervention is still required in this area.
The second area where technology plays an important role is in due diligence during commercial transactions. Completing a task with due diligence is a notoriously tedious and time-consuming activity that all lawyers have done at some point during their legal careers. It requires perusal of documents to identify key legal risks in a transaction. The emerging technologies make this process automated and reduce the time and effort required. However, human intervention will still be required to assess the relevance and hierarchy of the risks that the technology identifies.
With these changes, the speed with which lawyers can perform their tasks will increase, leading to lower turnaround time. However, I must note that the Indian legal fraternity has been slow to respond to changes and developments. Secondly, while several larger law firms in India are increasingly using such products, given the costs involved, the usage of products and technology is not a standardised practice.
I must also highlight some other nuances and limits of technology usage in the Indian context. One example that comes to mind is the practice in India of taking legal opinions from subject matter experts on areas of law that do not have clear binding legislative or judicial precedents. This practice will not go away despite the usage of legal technologies.
The role of lawyers, especially younger lawyers, will change. They will have to focus more on their knowledge and application of the law rather than doing repetitive tasks that do not directly add to their knowledge or require them to apply the law. Further, as highlighted above, lawyers will also have to play a role in ensuring that the deployment of technology is done fairly.
Professor Aman Gupta is presently engaged as an Assistant Professor (Law and Technology) at the West Bengal National University of Juridical Sciences, Kolkata, where he teaches courses on Labour Law and Technology. His areas of interest include Labour Law, Technology Law, and Sports Law.
