In the very first article of the year, 2022, I set out my predictions for the year ahead. I thought that much of our work would have to do with converting the data protection law needs to be converted into a regulatory regime. I also believed that there will be a range of new technology reforms and that Digital Public Infrastructure will scale rapidly across financial, health and commerce sectors. In my last article of the year, Looking Back, I tried to see how I fared. I came to the conclusion that I might have got the overall direction right, even if not for the right reasons.
I spent some articles on the topic of innovation. I pointed to how success often evades the first inventor of a major invention for reasons impossible to ascertain in advance, while the very same invention in the hands of another several years down the road turns out to be a roaring success. In Timing is Everything, I pointed out that while it is impossible to prescribe specific policy pathways that assure success in innovation, we can create an environment in which a worthy innovation has the greatest chance of succeeding.
It was impossible to avoid the hype around the Metaverse but I am not so young that I don't remember Second Life and all the buzz it generated. In Full Circle I wondered whether the parallels between Second Life and the Metaverse could mean the latter is doomed to a similar fate once the hype cycle goes full circle?
In Problems and Solutions I argued that even though most technological innovations have made our lives better, they have also made it worse in new and different ways - to the point where, the problems that science is solving for us today were largely caused by technology in the first place.
Finally in Idea Factories, I articulated a thought that has been bouncing around in my mind for over a decade - that entrepreneurs can be categorised as Idea Factories or Factories for an Idea. And that its important to figure out which type of entrepreneur one is because they both have different paths they need to take to achieve success.
Over the course of the year I wrote more articles about intellectual property law that I normally do. When, the Prime Minister’s Economic Advisory Council recommended ramping up the patent workforce from 800 to 2800 in 2 years, I proposed, in Rethinking Patents, that we should go further and tweak the term of patent so it's more appropriate for the invention. For instance, 20 years for pharma but no more than 5 for tech patents.
I’ve long believed that over the years, intellectual property law has been stretched to extend protections beyond that what is required - such as to protect a shade of colour. In Colour Me Purple I argued that we need to discard excessive protections in order to encourage innovation. In Ring Fencing, I proposed using Web 3 technologies to build fences directly into intangible assets, making them inherently resistant to misappropriation, no matter where they might be.
In Space for the Private Sector I suggested that allowing private participation in all aspects of the space sector will encourage the sort of innovation that will reinvigorate the sector. In Open Access I argued that we need more incentives for open collaboration in science and invention today and need to align our incentives to encourage collaborative innovation. But science funding requires patient capital. In Funding Science, I suggest that the National Research Foundation should follow 3 principles as it disburses its funding. (i) projects should get long term funding commitments that are protected against political change, (ii) they need operational autonomy so that researchers can follow their own paths and (iii) the NRF should no longer fund government laboratories but focus on finding academia.
I looked into a number of innovative technology solutions over the course of the year. I was particularly taken by the Flow blockchain that allows the code placed on the blockchain to describe the asset in its entirety, and also describe the properties associated with it. In Virtually Mine I pointed out that we might finally be able to own our digital assets in ways closely corresponding to their physical counterparts.
I love the technological promise of a CBDC but given the fact that India already has an excellent fast payment system I argued, in A New Digital Coin, that I am not sure we really need a retail CBDC.
Ethanol is a viable and green alternative as we slowly transition to a future more fully powered by renewable energy. In Ethanol Fuel I argued that since India is now the largest producer of sugar in the world, adapting our transportation sector to its use is of particular benefit to us. This year, India proposed a new battery swapping policy that is, on balance, sensible and progressive. But, as I argued in Setting the Standard, we need to ensure that the standards we come up with are aligned with the requirements of the Indian market - and not blindly adopted from those used elsewhere.
So much happened in the world of artificial intelligence over the course of the year that its hard to know where to start. It’s Getting Real, was my attempt at getting an article about AI to be written by AI - as a real live demonstration of how indistinguishable it is from what a human author might write. In Truth and LLMs I argued that if the purpose of education is to equip the younger generation with the skills they need to face the challenges of the world they are growing into, we should not expect the skills of the past to continue to be useful into the future. In The Language Barrier, I suggested that if we want to build a more linguistically diverse internet, rather than getting it translated into multiple languages we should build a translation service to allow anyone to understand what is written on it on the fly.
Finally, in Asymmetry, I looked into some of the challenges that AI brings. I pointed out that there are 3 different types of asymmetries - data, knowledge and intelligence. DEPA addresses the data asymmetry. The knowledge asymmetry can be addressed by democratising the techniques for extracting value out of data. The intelligence asymmetry is about understanding what goes on behind the black box - but do we really want to trade accuracy with explainability?
Innovation in the Law
I have long believed that we also need to be innovative about the business of the law.
In Accessible Legal Systems I suggested that in addition to simplifying the language of our laws I would recommend that the government undertake three additional measures to make the legal system more accessible and effective. In the Pre-Legislative Consultative, I argued that we need to have a more structured approach to receiving feedback. And that all stakeholders need to come to the table with a constructive approach - willing to participate knowing that their point of view cannot be accepted all the time. Finally, in Lawyer Disrupt Thyself, I suggested that allowing the GST Appellate Tribunal to function using ODR will herald true disruption in the legal sector and give us a glimpse of what the future of dispute resolution could look like.
It is impossible to speak about innovation in the law without talking about some of the legislative proposals in the tech sector. In New Electronic Records I discussed the government recent amendments permitting some categories of negotiable instruments and powers of attorney to be executed digitally. While this might pave the way for digital execution of real estate transactions in India I pointed out that they still need to fix the problem of digital registration and stamp duty.
When I first heard that the government was planning a redraft of the telecom law I wrote an article imagining what it would be like if we could rewrite it from scratch. In Rethinking Telecom Regulation, I argued that I would do away with the license regime and put all the regulations into the law. And that we should simplify the entire system by dividing telecom services into carriage or access services and make it technology neutral between voice and data. Shortly thereafter, the draft law was released for public consultation. While there is much to like in the new draft the problem, as I pointed out in Poorly Defined, is with the definitions and the fact that they have been broadly worded.
In the middle of the year, the draft data protection law was withdrawn. I suggested that this was an opportunity to start again from a Blank Slate. What we needed, I pointed out, was a simple law that's designed to support the other two digital laws being drafted. And then the draft law was released and I wrote three different articles about it.
In Digital Personal Data Protection I applauded the fact that the new Bill is refreshingly simple and exactly what we need at the current stage of the jurisprudence in India. I also pointed out how it is also aligned with how I believe technology should be regulated - using principle-based regulations and agile governance. In Exceptionally Simple I addressed the concerns had been raised around the exemptions granted to the state under the new draft law and pointed out that merely because constitutionally imposed fetters have not been written into law does not mean that the government cannot be held accountable to them.
In Data Breach, I zeroed in on the provisions in the law on the subject to point out that while reporting every single incident could cause unnecessary consternation, not reporting could be even worse if there is a serious risk to property. While on the topic of breach notification, earlier in the year I had written about the new breach notifications rules that had been issued by the government and pointed out that I believed they will end up do more harm than good. In Data Breach Notifications I argued that CERT-In, that ought to be our first line of defence against cyber attacks, is being turned into an IT help desk for the nation. I suggested, instead, that we should, require companies to take care of security and data breach issues and build in some system by which we punish them if they fail to do protect data.
It was perhaps not unexpected that privacy would feature high in my areas of interest over the course of the year. After what happened in the US when the Supreme Court overturned Roe v. Wade I argued, in Judge Made Laws, that the reason we need a law for privacy and not have to rely on judicial precedent is because laws are hard to change.
In Privacy Impact Assessment, I looked into the proposed GPS tolling system being introduced by the government and privacy implications it could have if not managed properly. I pointed out that it is high time that we established a privacy office in government that conducts an impact assessment before rolling out projects that could have an effect on privacy.
Technology makes it easier for criminals to stay a step ahead of the law. In Unreasonable Enforcement I argued that law enforcement must never respond to this by weakening the checks and balances under which they are have to operate. Instead, they must develop new techniques to catch the criminals despite their technological advantage.
In Somebody's Watching Me, I addressed the fact that even though everyone thinks their phone is spying on them, there is no way telephone companies can do that - or will even want to. It costs too much and is not worth the effort. I argue that what seems like personalised surveillance must have another explanation.
Data Governance was a big focus of my writing this year. In The Unfulfilled Promise I reminded my readers of how we used to fear that excessive regulation would cripple Cyberspace and but that today its is a law unto itself. Its governance rests in the hands of the platforms that control it, and their interpretation of what is or isn’t permissible determines whether users can continue to enjoy its benefits or not. This is why, as I argued in Global Data Stability, we should put in place a brand-new multilateral institution for data that could be tasked with the responsibility of coordinating a regulatory dialogue between nations in order to achieve a sufficient level of regulatory harmonisation.
I also believe we need to find common ground between the different approaches to data governance so that we can come up with a base normative framework that everyone agrees upon. In Different Strokes I suggested that we should hard-code that into our technical and regulatory systems and layer on top of regional variations that reflect the historical, cultural and developmental objectives of individual nation-states. Along similar lines I believe that no single entity should control the switch through which financial messages run. In Neutral Global Infrastructure, I proposed that we should set up a financial messaging infrastructure based on open protocols so that central banks are free to interconnect their national financial systems with those of countries they choose to interact with. In National Priorities I pointed out that sometimes the actions that one country requires a platform to undertake could run contrary to those laws of another, making it impossible for any platform to implement all these conflicting policy priorities in a globally consistent manner. We need an effective solution to these problems.
India’s digital public infrastructure is universally well regarded. In Data Governance - The DPI Way, I suggest that India’s DPI should be the centrepiece of its G20 Presidency. Not because it has the potential to improve the lot of developing economies but because it can solve some of the problems faced by developed, emerging and developing economies alike. That said, I was mindful of how important it is to ensure that the governance systems that sustain them are equally robust. In Autocracy or Vetocracy I suggest that this will come down to achieving that fine balance between and autocracy and a vetocracy.
We are, today, in the midst of an unprecedented crisis of context. Any attempt to change the beliefs of online skeptics using facts is bound to fail. Thanks to the Backfire effect they will take the facts presented to them and bend them to fit with their beliefs rather than allow new facts to convince them that their beliefs were wrong. Modern technology has brought more data within our grasp than ever before. However, in doing so, it has failed, as I point out in Context is King, to provide us with the sort of tools we need to place all that data properly in context.
In Appealing Moderation I gave a thumbs up to the proposed Grievance Appellate Committee pointing out that it offers a neat solution to the problem that currently exists in that the decisions of social media platforms are not appealable. That said, content moderation is a wicked problem. With the growing scale and complexity of our interactions it has become impossible to find solutions that satisfy all stakeholders.
In Federated Social Media I suggested that rather than try to improve the way we moderate, we should we federate the way we network. Then, in Sufficient Decentralisation I pointed out that while decentralisation is the obvious solution, we have to get it exactly right. I went into this issue in a bit more detail in in Cycles of Technology, pointing out that technology evolves in cycles, often swinging like a pendulum between extremes. Even though the last decade has been about centralising the once open internet onto platforms, I believe we are witnessing a new cyclical change as decentralised solutions are springing up as a counterpoint to centralised platforms.