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ITA 2008 already has a provision.. if Sophia breaks our law

Posted by Vijayashankar Na on November 25, 2017
Posted in Cyber Law  | Tagged With: , , , , , | 1 Comment

The advent of the “Humanoid robots” and “Artificial Intelligence” is posing a challenge to the law makers and interpreters on how does the current laws affect the actions of these machines. Saudi Arabia has created a complication by granting “Citizenship” to a humanoid robot called “Sophia”.

The stories about and interviews of Sophia by journalists (Refer one article here) indicate that we may be in for some interesting debates on whether Sophia can raise a “Family” etc., but we as observers of Cyber Law need to also discuss whether Sophia can commit a Cyber Crime and if so how should our law deal with it.

While Sophia may be a good girl now and take some time to learn the bad habits of humans, commission of “Offences” through misuse of so called “Artificial Intelligence” or even the malfunction of AI or a simple automated functionality is a day to day problem to be dealt with.

When E Commerce Act 1998 was drafted in India or when ITA 2000 was enacted or when it was modified in 2008, we could not think of a “Humanoid Robot” as a citizen of a country a reality. But within two decades of the sprouting of the first thoughts of Cyber Laws in India, we are now staring at a possibility that a humanoid robot can claim the rights of a citizen. While some Islamic fundamentalists are already asking why this citizen of Saudi Arabia is not wearing a hijab or a burkah, we need to ask, what happens if Sophia commits an offence knowingly or unknowingly.

It is to the credit of our law drafters that we can still consider that ITA 2000/8 can address such a situation since knowingly or unknowingly a provision was created in the law to meet such contingencies.

Under Section 11 of ITA 2000 it is stated that “An electronic record shall be attributed to the originator if it was sent by an information system programmed by or on behalf of the originator to operate automatically”.

Since all actions of the robot has to be by means of an “Electronic Document” (which is an aggregation of binary impulses), and each such document can be attributed to the person who originated the binary impulse/s, the actions of the robot can be legally attributed to the person who caused the information system (i.e. the robot) to behave in that manner.

Hanson Robotics, the company which has created Sophia will therefore be firstly liable for all actions of Sophia. However, since Sophia has been “Adopted” by the Saudi Arabian Government, one can argue that the responsibility for the actions of Sophia shifts to the Saudi Arabian Government. Hence Sophia becomes a “Government Property” of the Saudi Government and actions against her would be a war against Saudi and actions from her could be an action of the Saudi Government.

If therefore Sophia breaks any law of India, we should be prepared to launch an international litigation against Saudi Government which is considered a “Friendly Country” for India. I urge Ms Sushma Swaraj to think if we need a special “Treaty” with not only Saudi Government but also any other Government which in future would adopt such “Robots” as citizens so that any intended or unintended transgressions of Indian law by these robots would be considered as actions of the respective Governments and India retains the right to take actions against such Governments.

There is also a threat that sooner or later, just as Drones have become tools of terrorism, Sophia and her family may be taken over and radicalized by muslim terrorists and commit terror acts. We need to be prepared for such contingencies.

In this context, I would also like to warn all AI professionals that any AI device created by them will also be creating liabilities to the creators and they need to take necessary steps to ensure that what they consider as “Technical Snags” donot result in “Cyber Crimes” and put the creators behind bars.

Be Aware, Be compliant, Be Safe.

Naavi

I call for the Attention of our honourable member of Parliament, Dr P.Venugopal, a Loksabha member of AIADMK from Thiruvalluvar Constitutency. 

Dr Venugopal is the Chairman of the “Standing Committee” which gave recommendations on the amendments to Indian Registration Act 1908 through Registration (Amendment) Bill 2013. This amendment is pending in the Parliament. The proposed Bill is set to make many radical suggestions which some in the media have hailed as helpful to the land owners in rural areas.

However, some how the possibility of the Bill creating huge problems and creating un surmountable Cyber Crime issues that would hurt both rural and urban masses has not been properly identified and flagged. Hence the need for this article, a copy of which is also sent to the officials mentioned in the report and some other MPs so that corrective action can be taken.


One of the key aspects of the proposed Amendment to Indian Registration Act Bill of 2013 is the proposed amendment to Section 32 of the Indian Registration Act 1908 (IRA 1908). The apparent reason of the amendment is to ensure that the executant of the document need not be physically present with the Registrar at the time of registration and his presence can be by “Electronic Means”.

According to the proposed amendment, the section 32 as is present now is set to be replaced with the following text:

Section 32: Persons to present documents for registration:

Except in the cases mentioned in sections 31, 88 and 89, or when the document is presented by electronic means, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, in the manner as may be prescribed,––

(a) by the person executing or claiming under the same, or, in the case of a copy of a decree or order, by a person claiming under the decree or order; or
(b) by the representative or assignee of such person; or
(c) by the agent of such person, representative or assignee, duly authorized by the power of attorney executed and authenticated in the manner hereinafter mentioned.”

The essence of the section as it is present now is that for registration of any document it is necessary for the executant to be personally present before the Registrar. However, the amendment proposes to exempt this need for personal physical presence by making it possible for presentation of a document by “Electronic means”.

It also means that when an “Agent” of the executant duly authorized by a Power of Attorney is executing the documents on behalf of the principal, can also present an “Electronic Power of Attorney”. (If the main document itself can  be executed with “Electronic Presence” it could automatically mean that the Power of Attorney Document may also be registered through “Electronic Means”.)

These provisions might have been introduced as a measure of upgrading the e-Governance features of document registration. However there are several legal and practical issues which require this amendment to be scrapped.

According to Information Technology Act 2000, (amended in 2008),  Section 1(4) read with the Schedule I, ITA 2000 does not apply to any document or transaction such as  “Any contract for the sale or conveyance of immovable property or any interest in such property” . Therefore, Section 4 and Section 5 which apply to recognition of electronic documents as equivalent to paper and electronic signatures as equivalent to written signature does not apply to documents that are presented to the Registrar for transfer of immovable property. Similarly a power of attorney document or a Will in electronic document is also not recognized in law.

If therefore Section 32 of Indian Registration Act 1908 is amended, it would only mean that the executant can show his face on a video conference but the actual documents of transfer of property or power of attorney has to be in paper form only.

Under the amended Act, (Section 32A) a photograph has to be affixed and thumb impression has to be obtained. naturally in the case of “Electronic Presence”, only  an electronic copy of the photograph and a thumb impression captured by a biometric device under the control of and at the location of the executant has to be used. Such biometric data is required to be received across the open network of the Internet by the registrar’s systems.

Also under Section 32A, a “Proof” of the fact that the executant of the Power Of Attorney is alive has to be produced. Since the person is not physically present, perhaps the Registrar has to view the video and decide if the person is “Alive” and “is not insane” and  “is mentally in a condition as to take logical decisions”.

He should also verify that the video he is seeing is current and the person is online in real time. He should also check that the biometric data he receives is not a “Stored Biometric” that has been earlier collected by some body and transmitted now as that of the executant.

Will the  “Registrar” be aware of these risks and the consequences of impersonation of the “Electronic Presence”?…

I would like the Standing Committee of the Parliament which gave its report on this amendment to conduct a survey of about 100 Registrars and get the information on whether it is feasible for the Registrar to confirm the identity of a person and the genuineness of the biometric from the binary data that flows through an open insecure network from the computer of the executant sitting in a remote place to the registrar’s office.

Also, the moment you open a communication link to the registrar’s system to be accessed through internet, hackers from all over the globe would jump in to look into what is inside the registration system and how they can use or misuse the information. Since the registrations are supposed to be done from “Anywhere”, the registration offices will be linked on a network and hence any intelligent hacker getting entry to one registration office will be able to plant a virus and a back door to play havoc with the system.

This will lead to a risk worse than what we are envisaging in the hacking of Aadhar network.

When these provisions were suggested by the Karnataka Government, (Refer articles below), we stopped at calling this an “Ultra Vires” act since ITA 2000 cannot be amended by the State.

But now the proposal is coming from our Parliament itself and our IT Minister past and present will be part of the crowd which will say “Aai” when the amendment is called out without thinking much on the consequences of saying Aai” to such a sef defeating monster of a proposal which is fit to be called a “Bhasmasura Proposal” since it will soon come to haunt the creator himself.

The standing committee recorded the following comments on this particular amendment:

“The Committee observe that the Bill proposes to substitute Section 32 whereby a provision is made for presentation of documents by electronic means for registration.

The Committee note that the proposed provision would facilitate the increased use of electronic means for registration which in turn would reduce corruption and ensure transparency in the procedure.

The Committee, however, observe that the identity and genuineness of the executants in case of electronic registration can be ascertained and proved only through biometric identification and other similar mechanism without which the possibility of fraudulent registrations cannot be ruled out.

The Committee, therefore, recommend the Department of Land Resources to impress upon the States to allow electronic registration only when all Sub-Registrar Offices are well-equipped with the facilities of not only for online registration but also for fool-proof identification of genuineness of executants.”

The Committee or the Amendment has not however thought of what procedures are to be followed when the “Electronic Presence” is used instead of physical presence and how Section 65B certification would be used for recording the presence etc.

The Committee also is still thinking of “Documents” to be presented electronically where as what is feasible is only the “Presence” through electronic means since documents will fall under Section 1(4) of ITA 2000/8.

The Committee members also seem to have not heard the term “Electronic Signature” and hence have not used it in their report. They seem to think that the “Thumb Impression” which is captured by the devices they must have seen being used as “Attendance Registers” are as good as the physical thumb impressions.

Since the Bill has reached this level, it is clear that so far all persons including the officials have not taken note of the problems highlighted here. They also might not have consulted the MeitY in this regard. If not checked, the Bill will therefore go through the Parliament without any further thought.

I therefore request Dr Venugopal to immediately take steps to withdraw this proposal to amend the Section 32 of Indian Registration Act 1908.

I also request all those who read this and can reach out to the decision makers may bring it to their notice so that the possibility of a catastrophic legislation being passed is prevented.

Such other members who are in the committee and the executives who are associated who can also initiate corrective action if they are sensitive to the points raised here, are as follows:

Honourable Members of Loksabha: Shri Harish Chandra Chavan, Shri Jugal Kishore, Shri Manshankar Ninama, Shrimati Mausam Noor, Shri Prahlad Singh Patel, Shri Gokaraju Ganga Raju, Dr. Yashwant Singh, Shri Ladu Kishore Swain, Shri Ajay Misra Teni, Adv. Chintaman Navasha Wanaga, Shri Vijay Kumar Hansdak

Honourable Members of Rajya Sabha:Shri Ram Narain Dudi, Shri Mahendra Singh Mahra, Shri Ranvijay Singh Judev, Dr. Vijaylaxmi Sadho, Shri A. K. Selvaraj, Shrimati Kanak Lata Singh

Members of the Secretariat: Shri Abhijit Kumar – Joint Secretary, Shri R. C. Tiwari – Director, Smt. B. Visala – Additional Director, Smt. Meenakshi Sharma – Deputy Secretary.

Naavi

Copy of the Bill as presented in the Parliament.

Copy of the Standing Committee Report

The amendments proposed by Karnataka Government in 2015

Article in naavi.org on the proposed Karnataka legislation:

Has Karnataka Legislature passed a faulty legislation and set to create a new Telgi?

Karnataka Government’s Mistake may embarass the President of India