Open Access Research Article
KEEPING PACE WITH THE TECHNOLOGY-ARTIFICIAL INTELIGENCE AND CRIMINAL LAW, WITH SPECIAL FOCUS ON COMMERCIAL (FINANCIAL) OFFENCES IN INDIA
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Article Details
KEEPING PACE WITH THE
TECHNOLOGY-ARTIFICIAL INTELIGENCE AND
CRIMINAL LAW, WITH SPECIAL FOCUS ON COMMERCIAL (FINANCIAL) OFFENCES IN INDIA
AUTHORED BY
- MS. RITI SINGH
& MR.
SHUBHAM SINGH
Abstract:
Today we are living in the era which
is often referred as the 4th industrial revolution which is accompanied by
unprecedented technological developments such as artificial intelligence,
block-chain and big data to name a few. Today, these technological innovations
are impacting every aspect of our lives including the legal field, from
predicting the outcome of legal disputes, to doing the work of paralegals, etc.
the presence of technology can be felt everywhere. The development of big data
and artificial intelligence has profoundly affected our social life, changed
our lifestyle, and has affected all the aspects of society. At the same time,
however, they have also raised a number of legal issues that require legal
theory researchers to respond.
Artificial intelligence (AI) has gone
from a fringe field of computer science, to the forefront of the tech
conversation. Artificial intelligence is and will shape the future and touch on
nearly all areas of life, perhaps beyond any technology we’ve seen to date. As
with any developing technology, there are fundamental ethical considerations as
the adoption rates increase, and its usage becomes more widespread. The
influence of AI will require us to approach it with a vision and care for the
impacts it will have in a legal framework.
The Indian economy is one of the
fastest growing economy of the world and in India also the awareness for
Artificial Intelligence is increasing with every passing day. Since the early
90s, the Information Technology and other services sector in India has been of
tremendous importance to its economy eventually growing to account
for 7.7% of India’s GDP in 2016[1]. In an attempt to
capitalize on this foundation, the current Indian administration announced in
February 2018 that the government think-tank, National Institution for Transforming
India, NITI Aayog, will spearhead a national program on AI focusing
on research[2]. This development
comes on the heels of the launch of a Task Force on Artificial
Intelligence for India’s Economic Transformation by the Commerce and Industry
Department of the Government of India in 2017[3].
Keywords: Artificial
Intelligence, Commercial offence, Block- chain, economic transformation and
legal personality.
Methodology
A. Objectives: -The study was geared to achieve the following
objectives: -
1. To study the meaning and use of
Artificial Intelligence and its impact on Indian economy.
2. To understand the major commercial
offences committed by Artificial Intelligence in India and what are its legal
implications in India.
3. To study the ways in which these
advanced commercial offences are committed wit the use of Artificial
Intelligence.
4. To analyze the concept of “Legal
Personality of Artificial Intelligence”.
5. To study the accountability and
liability which can be fixed with regard to the commercial offences committed
under criminal law with the use of Artificial Intelligence.
6. To analyze the existing laws which
are there with regard to Artificial Intelligence and also analyzing its
viability with the growing pace of the technology and advanced commercial
offences.
7. To suggest the changes in the laws
which can be incorporated in India with regard to regulating the areas in which
this technique can be used and fixing the liability for the commercial offences
committed by the use of Artificial intelligence.
8. To study how Artificial Intelligence
can be used for the prevention of future commercial crimes.
B. Hypotheses:- The following hypotheses will be examined in this
study:-
1.
With the growing pace of the technology, Artificial Intelligence have
come up like a revolution in the world and in India also people are becoming
familiar with this technique. The intellectual class of Indians are more likely
to be aware of this technique.
2.
Artificial Intelligence has affected the social life of people and have
some serious legal implication.
3.
Artificial Intelligence is facilitating the commission of crimes.
4. Commercial offences is one of the
major serious implication of Artificial Intelligence under the Indian Criminal
law regime.
5.
A major area of Indian law which relates to Criminal Law and Artificial
Intelligence in India is still unregulated.
6.
There is a need of new set of laws and amendments to fix the
accountability and liability for the wrongs committed by the use of this
technique.
7.
As Artificial Intelligence is used in the commission of advanced
commercial offences, it can also be used in the prevention of these offences by
the individual as well as the financial industry entities.
A.
Research Questions: - The
following research questions will be dealt in this study: -
1.
Does Artificial Intelligence technology used in Indian markets and if yes
then who are the consumers of this technique?
2.
How far Artificial Intelligence technology has influenced the Indian
society and economy and in particular the legal regime of India and to be more
precise the Criminal Law system in India?
3. What is an Artificial Intelligence
Crime that is, is there a possible definition for example, are they traditional
crimes performed by means of an Artificial Intelligence system? Are they new
types of crimes?
4. What are commercial crimes, with
special reference to Artificial Intelligence?
5. Who commits the Artificial Intelligence
Commercial Offences - human agent or an artificial agent or both of them?
6. How is an Artificial Intelligence
Commercial Offence performed (e.g., are these types of offences typically based
on a specific conduct or they also required a specific event to occur, in order
to be accomplished?
7. What are the fundamentally unique and
plausible threats posed by these types of Commercial Crimes?
8. Can legal personality be granted to
Artificial Intelligence?
9.
Is there a need for new laws and amendments in Indian Criminal law so
that commercial offences committed by Artificial Intelligence be punished?
10.
What new laws and amendments can be suggested for fixing the liability
under the criminal law for commercial offences committed by the use of Artificial
Intelligence?
11.
How Artificial Intelligence can be used preventing the future crimes?
D. Research Design: - In accordance
with the objectives of this study the researcher would use both the doctrinal
and non- doctrinal research design. The doctrinal method is used to study the
theoretical and the jurisprudential aspect of the Artificial Intelligence and
its implications on the Criminal Law field specifically on the Commercial
offences in India. This will done with the help of cases, leading judgments,
books, journals, articles, reports of various committees and commissions, etc.
Purpose and Scope of
the Study: -
Purpose: -
The purpose of this study is to make
a detailed analysis on the issue that is., Criminal Law with major focus on
commercial (financial) offences and Artificial Intelligence regime taken
together in India. Not much have been done on this issue till now and with the
growing use of Artificial Intelligence and increase in the number advanced
commercial crime, this issue needs to be addressed by legal practitioners and
jurists. Hence the researcher would like to take up this issue so as to give a
detailed account of the above mentioned issue.
SCOPE: -
The researcher through the Doctrinal
study which would firstly probe into the issues which would relate to the
questions as to how far Artificial Intelligence have made its way in the Indian
markets and also it will look into the issue as to who all are the consumers of
this technique and what is the level of awareness about it in India and its
impact on Indian economy. This would be done by various reports and secondary
data collected through various articles and journals
Introduction
Today we are living in the era which
is often referred as the 4th industrial revolution which is accompanied by
unprecedented technological developments such as artificial intelligence,
blockchain and big data to name a few. Today, these technological innovations
are impacting every aspect of our lives including the legal field, from
predicting the outcome of legal disputes, to doing the work of paralegals, etc.
the presence of technology can be felt everywhere. The development of big data
and artificial intelligence has profoundly affected our social life, changed
our lifestyle, and has affected all the aspects of society. At the same time,
however, they have also raised a number of legal issues that require legal
theory researchers to respond.
Artificial intelligence (AI) has gone
from a fringe field of computer science, to the forefront of the tech
conversation. Artificial intelligence is and will shape the future and touch on
nearly all areas of life, perhaps beyond any technology we’ve seen to date. As
with any developing technology, there are fundamental ethical considerations as
the adoption rates increase, and its usage becomes more widespread. The
influence of AI will require us to approach it with a vision and care for the
impacts it will have in a legal framework.
The Indian economy is one of the
fastest growing economy of the world and in India also the awareness for
Artificial Intelligence is increasing with every passing day. Since the early
90s, the Information Technology and other services sector in India has been of
tremendous importance to its economy eventually growing to account
for 7.7% of India’s GDP in 2016[4].
In an attempt to capitalize on this foundation, the current Indian
administration announced in February 2018 that the government think-tank,
National Institution for Transforming India, NITI Aayog, will spearhead
a national program on AI focusing on research[5].
This development comes on the heels of the launch of a Task Force on
Artificial Intelligence for India’s Economic Transformation by the Commerce and
Industry Department of the Government of India in 2017[6].
Just as Google, Oracle,
Microsoft, and Amazon are battling to serve the cloud computing and
machine learning needs of the US government, the next three to five years may
lead to a similar dynamic within India. As the Indian government pushes
for digitization and enacts more AI initiatives, private firms will flock
to win big contracts – adding to the pool of funds to develop new technologies and
spin out new AI and data science-related startups.
Mr. Avik Sarkar, the Head of the Data
Analytics Cell for NITI Aayog explains that the think-tank – which
has been tasked with spearheading India’s AI strategy – is currently engaged in
the following public sector initiatives: - Precision Agriculture, Healthcare,
Indian Languages Project.[7]
The increased AI interest has
manifested itself in the following three ways:
1)
Industries have started working to skill their manpower to enable themselves to
compete with other global players
2)
Educational institutions have started working on their curricula to include
courses on machine learning and other relevant areas
3)
Individuals and professionals have started acquiring these skills and are
comfortable investing in upgrading their own skills.
At the core, AI is a tool based on
learning and adapting to new data based on an algorithm. One can’t predict
everything that is going to happen giving it an inherent uncertainty. Whereas
our legal system is based on providing (relative) certainty and guidance for
individuals and companies as to expectations on how to behave in society, so
the unpredictable nature and potential impact of AI is unsurprisingly what
scares people the most. In response to this uncertainty, many legal questions
will need to be solved to assess and control the risks related to an AI
solution. Concretely, the usual aspects that will be involved in this study by
the researcher is influence of Artificial Intelligence on Indian Criminal law
especially on commercial (financial) offences and offenders, its future
implications on Indian Criminal law and the policy suggestions.
Artificial intelligence (AI) research
and regulation seek to balance the benefits of innovation against any potential
harms and disruption. However, one unintended consequence of the recent surge
in AI research is the potential re-orientation of AI technologies to facilitate
criminal acts. Criminal acts are defined here as any act (or omission)
constituting an offence punishable under Indian criminal law. Artificial
Intelligence is used very widely in commission of offences and also in
commercial offences such as fraud, forgery and counterfeiting, money
laundering, forgery
or use of credit/debitcards, offences against the legislation governing cheques
(in particular forgery or use of stolen cheques), offences against companies
(such as misuse of company assets), bank fraud, etc,
The main issue which crops up while
dealing with Artificial Intelligence and Criminal law is that of fixing the
liability and accountability for the criminal acts committed by the use of
Artificial Intelligence. The major sub issue related to this main issue is the
question of ‘Legal Personality of
Artificial Intelligence’. As of now, no law in force recognizes AI to be a
legal person and there are no AI related laws or legislations. However, with
incidents such as the fatal accident caused by Uber’s self-driving vehicle
thereby killing a pedestrian in Tempe, Arizona and Sophia, a robot being
awarded citizenship by Saudi Arabia it has become vital to address the legal
identity of Artificial Intelligence and till the time this issue is not
addressed, the liability under the criminal law cannot be fixed. India has not
proceeded as far as giving citizenship rights to a robot but what happens if it
does? Further, who would be responsible for their actions? If she/he commits a
crime, what punishment would be awarded? Such challenges will be addressed only
if the government makes a pre-emptive move and address the legal identity of an
Artificial Intelligence.
Another important aspect with regard
to crimes and Artificial Intelligence is that how human can use Artificial
Intelligence for committing crime. Machine learning poisoning is a
way for criminals to circumvent the effectiveness of Artificial Intelligence.
The researcher, through this study would also like to probe into this issue and
make a detailed analysis of it and how this technique is used is the commission
of commercial wrongs both against individuals and also against business
enterprises operating in the financial industry in India. Financial offenders
are using Artificial Intelligence for committing crime and hence it has become
very difficult to trace and stop these crimes. Hence, changes are needed in the
existing criminal law of India.
Prevention of financial offences is a
major issue which will be dealt in this study as preventing financial crimes
will not only save the banking industry millions, if not billions, of dollars
while keeping regulators happy, but it would save scores of lives and improve
our global economy through the adoption of new technologies. Advancements in
data science such as AI and machine learning are needed to fight global crime
and to stop financial criminals in their tracks. AI-based solutions can easily
analyze massive amounts of data, and quickly identify where exceptions or
anomalies exist, unveiling sophisticated intelligence networks which are
utilized as a flow of communication between fellow fraudsters and money
launderers.
AI systems have
progressed to the point where large volumes of transactional and other sources
of financial data can be culled, consolidated, analyzed, and scored for risk so
that investigators can make more accurate determinations of suspicious
activity.
No financial institution wants to be
used by criminals seeking to further their illegal and immoral money laundering
schemes and other commercial offences. The time is now for our legislators,
regulators, and covered institutions to adopt the emerging technologies of AI
and machine learning in the fight against global financial crime.
Therefore the researcher would like to include
the future implications and the policy suggestions which can be made to make an
effective and progressive Criminal law system with regard to the fixing of
liability for offences committed by the use of Artificial Intelligence in India
and how artificial Intelligence itself can be used to prevent commercial
offences will also be analyzed.
REVIEW OF LITARATURE
The interaction between the
disciplines of law, computer science and artificial intelligence are attracting
increasing attention within the academic and commercial communities, especially
in the areas of "intelligent" computer fraud, copyright of software,
data protection, representing law on the computer, and legal liability of
producers of intelligent and non intelligent software. The chapters in this
volume are representative of the debate and of the central issues. They include
material concerning the way that the discipline of law will affect computer
science and AI and also how computer science and AI will affect law. The
chapters lend support to the hypothesis that in years to come law will have a
severe impact on computer science (via data protection and copyright); that
computers will have an effect on law (via legal databases and electronic
presentation of evidence); that law will impact on AI (via liability of
intelligent software writers and codes of conduct); and that AI will have an
impact on law (via models of legal reasoning and implementations of various
statutes). By grouping the chapters into theory, implications, and applications
sections, the authors make an initial attempt to identify separate, but
interrelated methodological stances.[8]
The growing use of artificial
intelligence (AI) software and robots in the commercial, industrial, military,
medical, and personal spheres has triggered a broad conversation about human
relationships with these entities. There is a deep and common concern in modern
society about AI technology and the ability of existing social and legal
arrangements to cope with it. What are the legal ramifications if an Artificial
Intellligence software program or robotic entity causes harm? Although AI and
robotics are making their way into everyday modern life, there is little
comprehensive analysis about assessing liability for robots, machines, or
software that exercise varying degrees of autonomy.
Gabriel Hallevy develops a general and legally sophisticated theory of the criminal liability for AI and robotics that covers the manufacturer, programmer, user, and all other entities involved. Identifying and selecting analogous principles from existing criminal law, Hallevy proposes specific ways of thinking through criminal liability for a diverse array of autonomous technologies in a diverse set of circumstances. In most developed countries, unmanned vehicles, surgical robots, industrial robots, trading algorithms, personal robots, and other artificial intelligence entities are in common use. Such use may be personal, medical, military, commercial, or industrial. The question of criminal liability arises when the unmanned vehicle is involved in car accidents, the surgical robot is involved in surgical errors, the trading algorithm is involved in fraud, and so on. Who is to be held criminally liable for these offences: the manufacturer, the programmers, the user, or the Artificial intelligence entity itself?[9]
Gabriel Hallevy develops a general and legally sophisticated theory of the criminal liability for AI and robotics that covers the manufacturer, programmer, user, and all other entities involved. Identifying and selecting analogous principles from existing criminal law, Hallevy proposes specific ways of thinking through criminal liability for a diverse array of autonomous technologies in a diverse set of circumstances. In most developed countries, unmanned vehicles, surgical robots, industrial robots, trading algorithms, personal robots, and other artificial intelligence entities are in common use. Such use may be personal, medical, military, commercial, or industrial. The question of criminal liability arises when the unmanned vehicle is involved in car accidents, the surgical robot is involved in surgical errors, the trading algorithm is involved in fraud, and so on. Who is to be held criminally liable for these offences: the manufacturer, the programmers, the user, or the Artificial intelligence entity itself?[9]
For millennia, laws have ordered
society, kept people safe and promoted commerce and prosperity. But until now,
laws have only had one subject: humans. The rise of artificial intelligence
presents novel issues for which current legal systems are only partially
equipped. Who or what should be liable if an intelligent machine harms a person
or property? Is it ever wrong to damage or destroy a robot? Can AI be made to
follow any moral rules?
The best- known answers to any of
these questions are Isaac Asimov’s Laws of Robotic, from 1942:
First: A robot may not injure a human
being or, through inaction, allow a human being to come to harm.
Second: A robot must obey orders
given it by human beings except where such orders would conflict the first law.
Third: A Robot must protect its own
existence as long as such protection does not conflict with the First or Second
Law.
Fourth: A Robot may not harm humanity
or, by inaction, allow humanity to come to harm.[10]
Artificial Intelligence is a rapidly
evolving technology which is surrounded by hype, misinformation and hysteria,
with very little cogent or helpful written to aid the practitioners. If you are
lost and need clear direction, 'Artificial Intelligence - The Practical Legal
Issues' will guide you through the implications and structure of existing AI
technologies and provide a practical and easily digestible path to the real
issues that you need to consider as a legal practitioner.
For years, robots were solely a
matter of science fiction. Today, artificial intelligence technologies serve to
accelerate our already fast-paced lives even further. From Apple's Siri to the
Google Car to GPS, machines and technologies that make decisions and take
action without direct human supervision have become commonplace in our daily
lives. As a result, laws must be amended to protect companies that produce
robots and the people that buy and use them. This book provides an extensive
examination of how numerous legal areas--including liability, traffic, zoning,
and international and constitutional law--must adapt to the widespread use of
artificial intelligence in nearly every area of our society. The author
scrutinizes the laws governing such fields as transportation, medicine, law
enforcement, childcare, and real estate development. The questions raised by
robots' rise will seem like they are from science fiction, but they are
becoming all too real. In Robots Are People Too, John Frank Weaver
tackles the legal side of this fascinating new story, from what happens when
driverless cars get into an accident to fundamental questions that are being
raised for the Constitution itself.[11]
The technology of legal practice is
challenging rapidly. Predictive coding is transforming discovery litigation.
Start-ups like Ravel (Ravel Law 2015a)[12],
Lex Machina, and the Watson- based Ross Intelligence, 2015 are gearing
attention and enlisting law firm subscribers. These and other developments in
text analytics offer new process models and tools for delivering legal
services, promising greater efficiency and, possibly, greater public
accessibility. These changes present challenges and opportunities for young
attorneys and computer scientists, but it has not been easy to predict the
future of legal practice. Declines in hiring by law firms have led to
reductions in the number of law school applicants. Prospective applicants weigh
the chances of gainful employment against the size of their student loans and
look elsewhere. There is uncertainity about what law- related tasks the
technology can perform.[13]
Artificial Intelligence is a buzzword
that we are beginning to hear with increasing regularity. The news constantly
keeps on telling us how advances in Artificial Intelligence are happening at a
very rapid pace. Given this, it is but natural to expect that Artificial
Intelligence will be an integral part of our day-to-day lives in the next
decade and half. In that context, it becomes essential to examine as on current
date what are the legal, policy and regulatory issues pertaining to Artificial
Intelligence. These are early days when the foundation of the Artificial
Intelligence building is currently being built. This is also a right time where
the legal frameworks pertaining to Artificial Intelligence must be evolved and
developed at an early stage so as to help enable mankind to not just reap the
benefits and advancements of Artificial Intelligence but also to ensure that
Artificial Intelligence does not become so intelligent so as to surpass human
intelligence in the coming times. In this context, the law pertaining to
Artificial Intelligence becomes an important subset of the Cyber law umbrella
that is constantly evolving. In this Book, the writer have sought to examine as
on date, the various significant legal, policy and regulatory issues pertaining
to Artificial Intelligence. The Book tends to ask various questions. The
answers of number of these questions are currently not available. However, the
Author believes that by raising the important questions and flagging the
important issues, the legal jurisprudence pertaining to Artificial Intelligence
could be substantially evolved and further developed with the passage of time.
The Book deals with all major and important legal, policy and regulatory issues
pertaining to Artificial Intelligence, at the time of writing. As time passes
by and as further advances of Artificial Intelligence continue to keep on
happening, it is a question of time that more elaborate legal principles and
legal frameworks pertaining to Artificial Intelligence need to evolve with the
passage of time.[14]
The book provides a grounding of what
differentiates artificially intelligent systems from traditional technology and
explains the differences between AI, Machine Learning and Deep Learning as well
as other AI concepts such as neural networks. Understanding what AI systems can
and cannot do is also essential to developing a clear legal awareness of the
technology. From these introductory foundations, you'll learn how the
deployment of AI technology creates issues and risks that need to be considered
carefully and that permeate across causation, intellectual property ownership,
confidentiality and data protection, recruitment and even criminal law. In each
case the author will suggest practical approaches to solving and mitigating
such risks and will show how current liability frameworks need to be adapted to
accommodate these risks.[15]
Our immediate reaction is emotional:
anger, horror, disgust and then reasons sets in. A crime has been committed. A
punishment must follow. Now imagine the perpetrator is not a human, but a
robot. Does your response change? What if the victim is another robot? How
should society, and the legal system, react?[16]
From the early days of vaccum tube
computers to the current generation of supercomputers which operate in the
exaflop computing range much progress has been made in the field of artificial
intelligence. But perhaps the most striking example of progress in AI has been
the advances in the design of algorithms and analytical techniques which allow
AI systems to learn from experience, to be creative, and to perform
autonomously from humans. However, while these aspects of AI are impressive,
current systems operating with AI have begun to challenge established areas of
law and have resulted in the beginnings of an important conversation among
legal scholars in Europe, the U.S., and Asia on how to regulate AI.[17]
1.
Present Study
A.
Statement of the Problem
The present study intends to focus
upon the issues and problems relating to the use of Artificial Intelligence in
India, commercial offence committed by it and by the use of such technology and
the question relating to the “Legal Personality of Artificial Intelligence” and
also questions related to its accountability, liability and punishment under
the Indian Criminal Law. With the help of doctrinal as well as non- doctrinal
method, the proposed exercise is attempted to know as to how this technology is
affecting the people in India and Indian economy what are the its implications
on the legal field. Are there any specific legal areas under the Indian
Criminal Law such as commercial offences, which are getting affected by this
technique? A systematic probe in to some of these questions has been made in
the study. The issues relating to fixing the accountability and liability with
regard to commercial offences committed by Artificial Intelligence technique
have been dealt in a comprehensive way in the study and would be examined in
the light of various case laws. Also the future implications of the Artificial
Intelligence on the Commercial offences (its prevention and cure) in India will
be critically evaluated and what government regulations, new laws and
amendments can be imposed on the use of this technique so as to regulate the
use of this technique would be suggested in this study so that Indian legal
system could also match its pace with the growing technology.
B.
Conceptual Framework
Artificial Intelligence: - Artificial intelligence (AI) is the simulation of human
intelligence processes by machines, especially computer systems. These processes
include learning (the acquisition of information and rules for using the
information), reasoning (using rules to reach approximate or definite
conclusions) and self-correction. Particular applications of AI
include expert systems, speech recognition and machine
vision.
In computer science, artificial intelligence (AI), sometimes called machine intelligence,
is intelligence demonstrated by machines, in contrast to
the natural intelligence displayed
by humans. Colloquially, the term "artificial intelligence" is often
used to describe machines (or computers) that mimic "cognitive"
functions that humans associate with the human mind, such as
"learning" and "problem solving".[18]
Artificial intelligence can be
classified into three different types of systems: analytical, human-inspired,
and humanized artificial intelligence.[19]
Analytical AI has only characteristics consistent with cognitive
intelligence; generating cognitive representation of the world and using
learning based on past experience to inform future decisions. Human-inspired AI
has elements from cognitive and emotional intelligence; understanding
human emotions, in addition to cognitive elements, and considering them in
their decision making.
Hence, artificial
intelligence refers to the simulation of human intelligence in machines
that are programmed to think like humans and mimic their actions. The term may
also be applied to any machine that exhibits traits associated with a human
mind such as learning and problem-solving.
The ideal characteristic of artificial
intelligence is its ability to rationalize and take actions that have the best
chance of achieving a specific goal.
Criminal law and Commercial Offences
The rapid progress of artificial
intelligence (AI) and machine learning raises key questions regarding benefits
and risks related to the criminal justice system. Software is now to be found
in devices of all descriptions that are by people to run their business and
private lives. Artificial Intelligence is used in committing many types of crimes.
The major types of crimes in which Artificial Intelligence has become
instrumental are: - a.) economy- focused area of crime such as cartel offences, such as price fixing
and collusion, insider dealing,
such as trading securities based on private business information, and market manipulation; b.) harmful
or dangerous Drugs such as- trafficking, selling, buying, and possessing
banned drugs; c.) offences against the Person which includes from murder to
human trafficking to harassment to torture and sexual
offences which includes rape (i.e., penetrative sex without consent), sexual
assault (i.e., sexual touching without consent), and sexual intercourse or
activity with a minor; d.) theft and fraud, and forgery and personation. The
major question which crops up here is that who can be held responsible and
accountable in this case and how can the liability be fixed for the criminal
act (or omission) committed.
Under economic offences, cartel
offences are included and Artificial Intelligence’s involvement in market
manipulation, price fixing, and collusion is of great concern.[20]
Market manipulation is defined as “actions and/or trades by market participants
that attempt to influence market pricing artificially”, where a necessary criterion
is an intention to deceive. Yet, such deceptions have been shown to emerge from
a seemingly compliant implementation of an Artificial Agent that is designed to
trade on behalf of a user (that is, an artificial trading agent). This is
because an Artificial Agent, particularly one learning from real or simulated
observations, may learn to generate signals that effectively mislead.
Simulation-based models of markets comprising artificial trading agents have
shown[21]
that, through reinforcement learning, an Artificial Agent can learn the
technique of order-book spoofing. This involves placing orders with no
intention of ever executing them and merely to manipulate honest participants
in the marketplace.
In this case, the market manipulation
emerged from an AA initially exploring the action space and, through
exploration, placing false orders that became reinforced as a profitable
strategy, and subsequently exploited for profit[22].
Further market exploitations, this time involving human intent, also include acquiring
a position in a financial instrument, like a stock, then artificially inflating
the stock through fraudulent promotion before selling its position to
unsuspecting parties at the inflated price, which often crashes after the sale.
Further, Collusion, in the form of price fixing, may also emerge in automated
systems. Near-instantaneous pricing information (e.g., via a computer
interface) meets the coordination condition. When agents develop price-altering
algorithms, any action to lower a price by one agent may be instantaneously
matched by another. In and of itself, this is no bad thing and only represents
an efficient market. Yet, the possibility that lowering a price will be
responded in kind is disincentivising and hence meets the punishment condition.
Crimes falling under this category
include trafficking, selling, buying, and possessing banned drugs are also
included under the commercial offences. business-to-business trafficking of
drugs as a threat due to criminals using unmanned vehicles, which rely on AI
planning and autonomous navigation technologies, as instruments for improving
success rates of smuggling because smuggling networks are disrupted by
monitoring and intercepting transport lines, law enforcement becomes more
difficult when unmanned vehicles are used to transport contraband.
Further, Artificial Intelligence is
used where social bots can be used to advertise and sell products thes social
bots could be programmed to send and reply to email or use instant messaging
(IM) to spark one-on-one conversations with hundreds of thousand or even
millions of people every day, offering pornography or drugs to children,
preying on teens’ inherent insecurities to sell them needless products and
services. Therefore these are few popular types commercial offences committed
in today’s era.
Another issue which needs to be dealt
with is the legal personality of Artificial Intelligence.
Liability: -
Liability refers to the concern that
Artificial Intelligence Crime could undermine existing liability models,
thereby threatening the dissuasive and redressing power of the law. Existing
liability models may be inadequate to address the future role of Artificial
Intelligence in criminal activities. The limits of the liability models may
therefore undermine the certainty of the law, as it may be the case that
agents, artificial or otherwise, may perform criminal acts or omissions without
sufficient concurrence with the conditions of liability for a particular
offence to constitute a (specifically) criminal offence. The first condition of
criminal liability is the actus reus: a voluntarily taken criminal
act or omission. For types of Artificial Intelligence Crime defined such that
only the Artificial Agent can carry out the criminal act or omission, the voluntary
aspect of actus reus may never be met since the idea that an
AA can act voluntarily is contentious.
When criminal liability is
fault-based, it also has a second condition, the mens rea (a
guilty mind), of which there are many different types and thresholds of mental
state applied to different crimes. In the context of Artificial Intelligence
Crime, the mens rea may comprise an intention to commit
the actus reus using an Artificial Intelligence-based
application (intention threshold) or knowledge that deploying an Artificial
Agent will or could cause it to perform a criminal action or omission
(knowledge threshold).
Concerning an intention threshold, if
it is admitted that an Artificial Agent can perform the actus reus,
in those types of Artificial Intelligence Crimes where intention (partly)
constitutes the mens rea, greater Artificial Agent autonomy
increases the chance of the criminal act or omission being decoupled from the
mental state. Alternatively, legislators may define criminal liability without
a fault requirement. Such faultless liability, which is increasingly used for
product liability in tort law (e.g., pharmaceuticals and consumer goods), would
lead to liability being assigned to the faultless legal person who deployed an
Artificial Agent despite the risk that it may conceivably perform a criminal
action or omission. Such faultless acts may involve many human agents
contributing to the prima facie crime, such as through
programming or deployment of an Artificial Agent. However mens rea is the main
essential for committing any crime hence its requirement cannot be disregarded.
Legal Personality of Artificial
Intelligence
What is legal personality?
Legal personality, and the capacity
to be the subject of rights and obligations and to determine one’s own legal
situation, is ascribed by the law to human beings (natural persons). A natural
person has self-awareness, intelligence, free will, and feelings. Some natural
persons, in light of their immaturity (children) or intellectual disability, have
partially or completely limited capacity to autonomously acquire rights and
assume obligations, and thus the responsibility for them is borne by legal
guardians.
The notion of legal personality in
the sense of the capacity to be the subject of rights and obligations and to
establish one’s own legal situation has been expanded to cover entities
grouping together individuals sharing common interests, such as states and
commercial entities. They are “artificial” persons, known as “legal persons,” created
by the humans standing behind them. The detachment of legal persons from the
natural persons standing behind them (e.g. authorities and entrepreneurs)
occurred over a long process, through the evolution of abstract legal concepts.
Legal Personality and Artificial Intelligence: -
Undoubtedly AI uses cognitive
processes to achieve identified aims, but this does not seem sufficient reason
to vest it legal personality, in light of the criterion of rights and
obligations. Using the example of a commercial entity, awarding it legal
personality is justified by the human substratum behind it. In particular in
the context of criminal responsibility, it is the human responsibility for the
decision-making processes and organization of the entity who is punished.
In the context of a robot equipped
with Artificial Intelligence with regard to conferring them with legal
personality one view is that it is hard to say that it has a free will which
could lead to commission of prohibited acts with the aim of achieving its own
ends. Thus it cannot be ascribed a degree of fault, such as negligence or
recklessness. Nor is it possible to hold it liable for damages for its errors,
for example as in the case of an accident caused by an autonomous car or
malpractice by surgical robots.
AI code may ensure that AI complies
with certain rules, but application of such rules is not the result of an act
of will, and thus cannot give rise to responsibility.
Considering the level of
self-awareness, autonomy and self-determination, we may seek an analogy between
robots and animals. But what makes people eager to provide legal protection to
animals (and attempt to vest them with personhood) is not just the intelligence
some of them display, but also their capacity to feel pain, joy or attachment,
which Artificial Intelligence lacks.
Consequently, what distinguishes
human beings is their capacity for understanding the rules governing society,
as well as the intention to comply with those rules, along with the ability to
feel emotions. A human understands, interprets and applies legal rules in
nuanced situations of daily life, which cannot be said of animals or robots.
Thus the rights and obligations
associated with possessing legal personality arise from who people are and how
the social relations are organized among them. Notions like freedom of
expression, moral losses and responsibility make little sense in the context of
artificial intelligence.
Another view supports the fact that
legal personality can be given to Artificial Intelligence, like the way Saudi
Arabia has done. giving AI legal personality does not mean treating it as a
human. Legal personality refers to a bundle of rights and obligations. Like
rights, legal personality is a fiction: a tool to further the aims of a given
society. Turner suggests that legal personality for AI could be justified as an
elegant solution to (i) pragmatic concerns arising from the difficulties of
assigning responsibility for AI (ii) in order to support AI’s moral
rights. If legal personality for AI is adopted as a solution, helpful features
of such a regime would include the ability for AI to holds rights, obligations,
and assets, and for there to be a means of verifiable identification or
registration.[23]
Artificial Intelligence and the Future
of Criminal Law: Conclusion
Artificial intelligence has the
potential to be a permanent part of our criminal justice ecosystem, providing
investigative assistance and allowing criminal justice professionals to better
maintain public safety. One facet of human intelligence is the ability to learn
from experience. Machine learning is an application of AI that mimics this
ability and enables machines and their software to learn from experience.
Particularly, important from the criminal justice (particularly commercial
offences) perspective is pattern recognition. Humans are efficient at
recognizing patterns and, through experiences, we learn to differentiate
objects, people, complex human emotions, information, and conditions on a daily
basis. Artificial Intelligence seeks to replicate this human capability in
software algorithms and computer hardware. For example, self learning
algorithms use data sets to understand how to identify people based on their
images, complete intricate computational and robotics tasks, understand
purchasing habits and patterns online, detect medical conditions from complex
radiological scans, and make stock market predictions.
Every day holds the potential for new
AI applications in criminal justice, paving the way for future possibilities to
assist in the criminal justice system and ultimately improve public safety.
Video analytics for integrated facial recognition, the detection of individuals
in multiple locations via closed-circuit television or across multiple cameras,
and object and activity detection could prevent crimes through movement and
pattern analysis, recognize commercial crimes in progress, and help
investigators identify suspects. With technology such as cameras, video, and
social media generating massive volumes of data, AI could detect commercial
crimes and also other types of crimes that would otherwise go undetected and
help ensure greater public safety by investigating potential criminal activity,
thus increasing community confidence in law enforcement and the criminal
justice system. AI also has the potential to assist the nation’s crime
laboratories in areas such as complex DNA mixture analysis. Pattern analysis of
data could be used to disrupt, degrade, and prosecute crimes and criminal
enterprises. Algorithms could also help prevent victims and potential offenders
from falling into criminal pursuits and assist criminal justice professionals
in safeguarding the public in ways never before imagined. AI technology also
has the potential to provide law enforcement with situational awareness and
context, thus aiding in police well-being due to better informed responses to
possibly dangerous situations. Technology that includes robotics and drones
could also perform public safety surveillance, be integrated into overall
public safety systems, and provide a safe alternative to putting police and the
public in harm’s way. Robotics and drones could also perform recovery, provide
valuable intelligence, and augment criminal justice professionals in ways not
yet contrived. By using Artificial Intelligence and predictive policing
analytics integrated with computer-aided response and live public safety video
enterprises, law enforcement will be better able to respond to incidents,
prevent threats, stage interventions, divert resources, and investigate and
analyze criminal activity. AI has the potential to be a permanent part of our
criminal justice ecosystem, providing investigative assistance and allowing
criminal justice professionals to better maintain public safety.[24]
References: -
BOOKS
·
Ajit Narayanan,
Mervyn Bennun, Law, Computer Science, and Artificial Intelligence
(1991).
·
Russell Stuart
J.; Norvig, Peter, Artificial Intelligence: A Modern
Approach (3rd ed.). (Upper Saddle River, New Jersey: Prentice Hall.) (2009),
(ISBN 978-0-13-604259-4.)
·
John
Frank Weaver, Robots Are People Too: How Siri, Google Car, and Artificial
Intelligence Will Force Us to Change Our Laws (2013).
·
ISSAC ASIMVOC, “RUNAROUND” in I, ROBOT (LONDON: HARPER VOYAGER, 2013).
·
MARTINEZ-MIRANDA, E., MCBUCNEY, P., & HOWARD, M. J: LEARNING AND
UNFARE TRADING (2016).
·
Kevin D. Ashley, Artificial
Intelligence and Legal Analytics. (2017).
·
Gabriel Hallevy, When Robots Kill:
Artificial Intelligence Under Criminal Law (2013).
·
ISSAC
ASIMVOC, “RUNAROUND” in I, ROBOT (LONDON: HARPER VOYAGER, 2013).
·
John Frank Weaver, Robots Are People
Too: How Siri, Google Car, and Artificial Intelligence Will Force Us to Change
Our Laws (2013).
·
Kevin D. Ashley, Artificial Intelligence and Legal
Analytics. (2017).
·
Pavan Duggal, Artificial Intelligence
Law (Independently Published) (21-Sep-2017)
·
Kaplan Andreas; Michael Haenlein,
Siri, Siri in my Hand, who's the Fairest in the Land? On the Interpretations,
Illustrations and Implications of Artificial Intelligence (Business Horizons)
(2018)
·
JOHN BUYERS, ARTIFICIAL INTELLIGENCE - THE
PRACTICAL LEGAL ISSUES BY (LAW BRIEF PUBLISHING) (2018).
·
Woodrow Barfield, Ugo Pagallo ,
Research Handbook on the Law of Artificial Intelligence (2018).
·
Jacob Turner, Robot Rules: Regulating
Artificial Intelligence (2018).
·
Jacob Turner LEGAL PERSONALITY FOR AI
(2018).
·
ARCHBOLD, J. F. CRIMINAL PLEADING, EVIDENCE AND.
LONDON: SWEET & MAXWELL LTD. (2018).
JOURNAL
·
USING
ARTIFICIAL INTELLIGENCE TO ADDRESS CRIMINAL
JUSTICE NEEDS (NIJ JOURNAL 280).
WEBSITES
·
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6191666/
·
https://www.wipo.int/wipo_magazine/en/2018/05/article_0001.html
·
https://www.lexisnexis.com/infopro/keepingcurrent/b/weblog/archive/2017/06/14/lexisnexis-acquires-ravel-law.aspx
·
https://www.wipo.int/about-ip/en/artificial_intelligence/
·
https://www.forbes.com/sites/insights
·
www.niti.gov.in
·
https://link.springer.com/article
·
https://www.ibef.org/industry/information-technology-india.aspx
[1]
https://www.ibef.org/industry/information-technology-india.aspx
[2]
https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/budget-2018-niti-aayog-to-establish-national-programme-on-artificial-intelligence/articleshow/62738713.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[3]
http://pib.nic.in/newsite/PrintRelease.aspx?relid=170231
[4]
https://www.ibef.org/industry/information-technology-india.aspx
[5]
https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/budget-2018-niti-aayog-to-establish-national-programme-on-artificial-intelligence/articleshow/62738713.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[6]
http://pib.nic.in/newsite/PrintRelease.aspx?relid=170231
[7] www.niti.gov.in
[9] Gabriel
Hallevy , When Robots Kill: Artificial Intelligence Under Criminal Law (2013).
[10] ISSAC ASIMVOC, “RUNAROUND” in I,
ROBOT (LONDON: HARPER VOYAGER, 2013).
[11]
John Frank Weaver, Robots Are People Too: How Siri,
Google Car, and Artificial Intelligence Will Force Us to Change Our Laws
(2013).
[12]
https://www.lexisnexis.com/infopro/keeping-current/b/weblog/archive/2017/06/14/lexisnexis-acquires-ravel-law.aspx
[15]JOHN
BUYERS , ARTIFICIAL INTELLIGENCE - THE PRACTICAL LEGAL ISSUES BY(LAW BRIEF
PUBLISHING)(2018).
[16] Jacob Turner
, Robot Rules: Regulating Artificial Intelligence. (2018).
[18]Russell
Stuart J.; Norvig, Peter, Artificial Intelligence: A Modern
Approach (3rd ed.).( Upper Saddle River, New Jersey: Prentice Hall.)
(2009), ( ISBN 978-0-13-604259-4.)
[19]
Kaplan Andreas; Michael Haenlein , Siri, Siri in
my Hand, who's the Fairest in the Land? On the Interpretations, Illustrations
and Implications of Artificial Intelligence( Business Horizons) (2018)
[20] ARCHBOLD, J. F. CRIMINAL PLEADING, EVIDENCE AND.
LONDON: SWEET & MAXWELL LTD. (2018).
[21] MARTINEZ-MIRANDA, E., MCBUCNEY,
P., & HOWARD, M. J: LEARNING AND UNFARE TRADING (2016).
[22] MARTINEZ-MIRANDA, E., MCBUCNEY,
P., & HOWARD, M. J: LEARNING AND UNFARE TRADING (2016).
[23] Jacob
Turner LEGAL PERSONALITY FOR AI (2018).
Article Information
KEEPING PACE WITH THE TECHNOLOGY-ARTIFICIAL INTELIGENCE AND CRIMINAL LAW, WITH SPECIAL FOCUS ON COMMERCIAL (FINANCIAL) OFFENCES IN INDIA
Authors: MS. RITI SINGH, MR. SHUBHAM SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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