CHAPTER 10
Harsh V Pant and Kartik Bommakanti
“Nothing is more important to national security and the making and conduct of good policy than timely, accurate, and relevant intelligence.”
◆ The range of emerging technologies in the sphere of the military is wide;
◆ The application of three specific areas — cyber, AI and quantum technology (QT) — is uneven across the three services of the Indian Armed Forces;
◆ The Navy is the most advanced in the use of AI, with the Air Force and Army in the second and third positions;
◆ The least advanced area of investment and application in the Indian Armed Forces is QT;
◆ The application of cyber technology is still evolving but in comparison to the other two technology domains has received wider attention.
The following analysis attempts to uncover the extent to which emerging tech- nologies are integrated across the three service branches of India’s armed ser- vices. While the range of emerging technologies in the sphere of the military is wide, we look at only three specific areas – cyber, Artificial Intelligence (AI) and Quantum Technology (QT). The application of these technologies is still limited and uneven across the three services. All the service branches of the Indian mil- itary are aware of the importance of emerging technologies, but they have some distance to travel. Among these emerging technologies, the application of cyber technology and cyberspace is the most evolved. There is greater awareness within the services about this emerging technology than a decade ago. AI, however, has been in existence in some form, from semi-autonomous to fully autonomous systems. In military parlance, there are Autonomous Weapons Systems (AWS) and Lethal Autonomous Weapons Systems (LAWS), which cover unmanned weaponised platforms. The subsequent analysis includes an assessment of both AWS and LAWS. QT, which is the third emerging technology that can be applied to the military, is still at a nascent stage. It would be premature to make a con- crete evaluation of the progress of QT’s impact on the Indian military. Although India is a late entrant in the development and application of the three emerging technologies we will be examining in this analysis, it is nevertheless making slow, but steady progress to address the deficit in the areas of cyber, AI and quantum technologies. All three technologies intersect and indeed all three-armed services are working to incubate Research and Development (R&D) and the application of these three technologies.
Figure 1: Structure relevant to the Indian Air Force’s application of emerging technologies 1 Source: “India’s Integrated Air Command Air Command & Control System (IACCS), Indrastra, September 28, 2015.”
The first section explains the role of cyber technology across the three services. The second part surveys the scope of AI in the Indian military. Thereafter, the authors analyse the extent to which QT has been integrated into the three ser- vices. The fourth section looks at existing Indian regulations and laws affecting the implementation of these technologies in the armed services. The final section assesses the extent to which other countries have adopted these technologies. The conclusion lays out some challenges facing India’s armed forces in integrating these emerging technologies.
The application of cyber technology is still evolving but in comparison to the other two technology domains, has received the most attention. Cyberspace is used as a medium for communication, while cyber technology is used in defence security. The Indian armed forces are digitising, albeit gradually.
Let us begin with the Indian Navy (IN), which has integrated Software Defined Radios (SDRs) under the Indian government’s indigenisation drive. SDRs con- tain properties that are defined by software such as modulation, signal bandwidth, carrier frequency and network access. 2 Contemporary SDRs are also designed to execute cryptographic functions, source coding for voice, video and data and forward error correction coding.
In collaboration with the Defence Research Development Organisation (DRDO), Center for the Development of Advanced Computing and Weapons and Electronic Systems Engineering Establishment (WESEE) and Bharat Electronics Limited (BEL), the Navy has developed Software Defined Radios (SDRs) for applications such as SDR Naval Combat (NC), SDR Tactical (Tac), SDR Manpack (MP) and SDR Hand Held (HH) for secure wireless communi- cations for fixed and mobile naval forces. 3 The state-owned BEL also secured a substantial contract in 2019 to deliver SDRs. 4 Communication-based on the hard- ware of legacy systems has almost been replaced with software-based multi-band, multi-functional and multi-mission platforms. 5 These SDR-derived improvements will significantly enhance communications and situational awareness for the IN. 6 WESEE has attained a ‘Capability Maturity Model Integration (CMMI) Level 3 Rating for software development and maintenance projects.’ 7 CMMI emerged as a process development instrument to improve process and behavioural conduct assisting organisations in increasing productivity and efficiency by reducing risks in software, product and service development. 8 The US Department of Defence (DoD) played a key role in developing CMMI, which is commonly required across all DoD and US government software development contracts. 9 Indeed, WESEE is the Indian defence organisation’s secure appraisal for ‘…CMMI V2.0 Level 3 for Development and Supplier Agreement Management.’ 10
The IN has its own intranet or encrypted cyber communication network known as the Naval Unified Domain (NUD). 11 The NUD is primarily an inter- nal cyber network of the IN. The network operates only highly regulated or controlled data allowing easy segregation and analysis. 12 The IN is at the forefront of SDR development, has optimal satellite coverage in the area of responsibility, and has encryption systems that are far superior to the World Wide Web. 13 It is also spearheading development in quantum networks, quantum cryptography, laser communications, and ultra-high-capacity wireless networks, even if these initiatives may take a decade or so to flourish. 14 This makes it the first service to get off the mark in developing a network-centric force or one that is geared to undertaking Network Centric Warfare (NCW).
The IN, as former Chief of Defence Staff (CDS) General Bipin Rawat con- ceded, is ahead of the other two services in integrating cyber and other emerging technologies. Most specifically the IN’s cyber warfare capabilities were fairly advanced compared to the Indian Army (IA) and the Indian Air Force (IAF). 15 Indeed, the Navy has been quick to prioritise the application of cyber technol- ogy to meet its communications and decision support requirements. It has also invested in improving the security of its cyber networks to prevent hostile cyber intrusion at the level of command, across platforms, communications between command headquarters, and at base installations. 16
In the IAF, the cyber capabilities of the service are second only to the IN. The service has grasped the importance of cyber capabilities to service its communi- cations and operational requirements. The IAF too has an internal cyber security and cyber warfare group like the IN and IA. The service has started instituting measures to digitise requirements for peacetime and wartime postures. It has been incorporating digital technologies and recognises the cyber security requirements that come with it. 17 The service’s more obsolete monitoring, surveillance and com- munications are being replaced with more advanced digitised communications networks.
The Air Force Network (AFNET) developed by Bharat Electronics Limited (BEL) is a key part of the IAF’s cyber systems and formed the first segment in the service’s Integrated Air Command and Control System (IACCS) when it was launched in 2010. Indeed, the IACCS rides on the AFNET. The latter is a high bandwidth 500 MBPS digitised encrypted communication network, which replaced the IAF’s old troposcatter communication technology and is integral to the service’s NCW strategy. 18 The IAF’s digitised communications and data transfer is dependent on the AFNET. The AFNET integrates Satellite Communications (SATCOMs), Wide Area Network (WAN) and Internet Protocol (IP). The IAF’s static and mobile assets and installations are linked via the WAN – a secured communications network. The open architecture of the AFNET is also integrated with a state-of-the-art Human Machine Interface (HMI). Live visuals can be instantly accessed by decision-makers through Unmanned Aerial Vehicles (UAVs) and Imagery Intelligence (IMINT) from centralised facilities or installations located at substantial distances. 19 Through AFNET, the IACCS will execute all operations integrating ground-based and air-borne sensors, Command and Control (C&C) nodes, and Air Defence (AD) Weapons systems. 20
Like the IN, the IAF has invested in SDRs to enable secure encrypted two-way communication. The SDRs are both imported and sourced from the domestic market. It has encouraged domestic industry, as part of a roadmap that started in 2015 and extends to 2025, to develop SDRs indigenously. It has sought technolo- gies, especially cyber, to help improve aircraft communication and networks across combat zones. The communication requirements are geared to meet the band- width needs of the service as well as generate high data rates covering voice data, imagery, and video transmission. The IAF plans to secure as part of the roadmap a high-security network with potent encryption and decryption capability. 21 The current IAF Chief VR Chaudhari also noted recently that the IAF was working with the Defence Research and Development Organisation (DRDO), academia and industry to develop ‘niche’ capabilities in the cyber and AI domains. 22
For its part, the IA has several initiatives to integrate cyber technology and prepare its cyber warfare capabilities. Nevertheless, the IA still trails the other two services. The Corps of Signals (CoS) and the Directorate General of Information Systems (DGIS) form the institutional foundation of the IA’s cyber capabilities. They are responsible for providing tactical and operational level resources for Network Centric Warfare (NCW) and other military missions and operations. Although NCW is an overlapping function that both perform, CoS is primarily responsible for basic and advanced training (See Table 2).
Table-2: Indian Army – Key training and R&D establishments for emerging technologies 23, 24
Both the CoS and DGIS also ensure connectivity between different command cen- tres of the IA. The Military College of Telecommunications Engineering (MCTE) imparts training in cyber warfare ‘… through a state-of-the-art cyber range and cyber labs.’ 25 Several of the IA’s cyber-related communications and information systems are being integrated. At the apex, the service headquarters (HQ) of the IA and Command HQ of the service are almost digitally linked. The upper command centres that are being integrated include the Tactical Communications System (TCS), Command Information and Decision Support System (CIDSS), the Battlefield Surveillance System (BSS) and the Battle Management System (BMS). The CIDSS was made operational in 2011 following extensive user trial tests. There are 58 nodes connecting the entire cyber system of the IA consisting of application software, prime mover, hardware, and shelters. 26 However, at the tactical and operational level, cyber-based or digitised connectivity remains an unrealised goal.
The BMS segment of cyber connectivity and application ceased because the Defence Production Board (DPB) did not want to pursue it in 2018. The DPB is responsible for the conception and development of all futuristic technologies applicable to warfare and IA missions. 27 The termination of the BMS was a blow to the efforts of advocates for a digitised fighting force. 28 All the battalion and combat group level units of the IA were supposed to be integrated under the BMS. The IA leadership did not deem it necessary to test and field the BMS because they believed it to be prohibitively expensive.
The total cost of the BMS is estimated at INR 3000 crore, which at the time of writing, will not be spent by the IA. 29 Beyond what the IA deemed exorbitant cost, the BMS was to equip every soldier with a handheld computer, while minia- turised tactical computers were to be integrated into the HQ of every battlegroup, Infantry Combat Vehicles (IFVs) and battle tanks. 30 The aim was to generate a common operational picture by integrating other information sources such as the Geographic Information System (GIS) and the Global Positioning System (GPS). 31
The BMS, which has missed its 2012 deadline, integrates lightweight equip- ment and long-range communications through portable satellites, which are transmitted to the platoon level, and ergonomics. Sensor integration is crucial to the realisation of the BMS. The purpose of the BMS is to create a taut ‘Sensor to Shooter’ capability. It is also conceptualised to enable a range of tasks covering decision support functions and operational awareness at the level of battalions and combat groups.
The BMS also connects every single soldier and combat platform, and links the uppermost echelons of the battalion and regimental commander to the Tactical Command, Control, Communications and Information (TAC31) System through the CIDSS, providing a common and centralised operational picture (See Table-1).
Table 2: Structure Relevant to the Indian Army’s Application of Emerging Technologies 32
TAC31 was and may still be tasked to integrate the different ranks in the army for mobility and transfer of high data rates. 33 The IA, however, is entrapped in the era of communications, which was voice-centric rather than data-centric. The BMS has the potential to improve high bandwidth long-range communications, if and when, it is fielded. Its networks will be conducive for rapid deployment, which is self-configuring, customisable, combines constant rolling coverage, and is interoperable. The BMS when realised will also need all-point or network topology. 34
The IA has made progress in pursuing automation through a cloud network. The service is acquiring SDRs for secure bi-directional communication and has issued tenders to purchase and field SDRs. However, the service’s attempts to integrate SDRs need to meet the requirements of man portability are minimised, so that the mobility of infantry is not affected. 35
In a nutshell, cyber technology has advanced applications across all the ser- vices relative to the other two emerging technology areas – AI and QT. The IA, however, faces the greatest resource constraints in adopting and integrating cyber technology largely due to resource constraints and partially due to poor planning.
All three services are still in the early stages of using AI technology. AI enables efficiency which otherwise would be cumbersome when undertaken manually. Although AI is often interchangeably used with Machine Learning (ML) and Deep Learning (DL), however, there are differences. 36 ML is only a subset of AI and is largely founded on developing systems that learn and improve their performance derived from data consumption. 37 All ML is AI-based, but not all AI is ML. 38 DL is in fact a subset of ML, but even more data intensive to make highly accurate predictions and it is generally directed to perform com- plex tasks. 39 The core element of AI technology is that it helps exceed human performance and make accurate predictions derived from a large mass of data and AI helps automate very complex as well as simple tasks. 40 AI whether in the form of ML or DL has a whole host of military applications and functions ranging from decision-making to intelligence collection. They have the same problems that impede their use of cyber technology. An understanding of the applicability of AI is nascent and evolving. Semi-autonomous weapons have already been used by the IN. For instance, the IN has been using drones or Unmanned Aerial Vehicles (UAVs). However, the UAVs currently in service are geared primarily for Intelligence Surveillance and Reconnaissance (ISR) missions. 41 The IN uses Searcher II UAVs and is yet to acquire combat UAVs. Currently, the service has several areas where AI is used such as Tactical Data Link (TDL) system, Maritime Domain Awareness (MDA) and Combat Management System (CMS). 42 TDL is crucial for the IN as it seeks to become a Blue Water force, integral to the IN’s 2015-2030 Indian Naval Indigenisation Plan (INIP). 43
Apart from exploiting the massive advances in communication technology, investment in AI will be necessary to establish a credible TDL system to con- nect and generate interoperability among all IN vessels at sea. 44 The intention, at least for the IN, is to generate more awareness through AI. The IN is aware that fusing sensor data enables greater accuracy about the naval combat envi- ronment. 45 Onshore units can also use AI, which the IN is potentially exploring in the domains of logistics, human resources (HR), dockyard management and training.46 These domains are manpower intensive and the application of AI will bring greater efficiency. 47
Indian Naval Service (INS) Valsura has sought to leverage the use of AI by con- sulting technology companies such as IBM, Google, Infosys and TCS. 48 Currently, the IN is integrating the use of Automated Technology such as the Integrated Platform Management System (IPMS) for its new-generation warships. 49 IPMS will be used across the IN’s new generation platforms for control and monitoring propulsion, power generation and distribution, auxiliaries, damage control, steer- ing and stabilisation. 50 Automated ‘Intelligence’ is not only being embedded in the central processor but also in equipment across the IN’s vessels. 51 AI and ML, as former IN officers concede, are unlikely to serve as substitutes for humans, but they can certainly enhance the performance of IN personnel. 52 Areas that are considered critical to missions will find increased focus under the IN. Indeed, there is an appreciation for both the strengths and weaknesses of AI and ML.
In the area of training and assimilating AI and ML technology, the IN is work- ing towards creating a Centre for Excellence (CoE) at INS Valsura. An AI and Big Data Analysis (BDA) Lab was set up in 2020 in the same location. 53 The service has also set up an AI core group that will monitor AI initiatives and whether they adhere to prescribed timelines.54 Beyond these initiatives, the IN has signed a Memorandum of Understanding (MoU) with the Defence Public Sector Unit (DPSU) Bharat Electronics Limited (BEL). Under the terms of the MoU the IN and the BEL will set up a Technology Incubation Forum (TIF) for the devel- opment of emerging technologies such as Artificial Intelligence (AI), Quantum Computing and Robotics. 55 The mandate is wider and as the Ministry of Defence (MoD) observed, “The broad charter of the TIF includes technology development in the domain of weapons and sensors, information technology and emerging technologies such as artificial intelligence and machine learning, quantum com- puting, autonomous platforms/robotics, image processing and cognitive radio.” 56 This collaboration is being pursued under Prime Minister Narendra Modi gov- ernment’s flagship Atma Nirbhar initiative and is intended to be a collaborative effort between private enterprises, start-ups and academia. 57 Consequently, the GoI decided to abandon the purchase of 30 Predator drones which are LAWS at a cost of USD 3 billion from the American manufacturer General Atomics and instead develop the capability domestically. 58 AI is also being developed to enhance the performance of the Combat Management System (CMS) of the Indigenous Aircraft Carrier (IAC) that helps detect and engage threats. 59 It will significantly improve the ‘sensor to shooter’ loop of the IAC. 60
The IAF too has a history of using AI in its semi-autonomous form. There are an estimated five squadrons of UAVs operational under the IAF 61 , though the exact numbers are classified information. 62 These UAVs comprise a combination of Heron and Searcher II UAVs and like the IN are primarily dedicated to ISR missions. 63 The IAF also has an interest in acquiring Unmanned Combat Aerial Vehicles (UCAVs) such as the Israeli Harpy and Harop capable of tracking, iden- tifying and destroying targets and executing the destruction of radar emitters as part of missions related to the Suppression of Enemy Air Defences (SEAD). 64 The IAF has yet to deploy these LAWS.
202 Technology and Analytics for Law and Justice
The IAF has recognised the application of AI in several areas. As the then Chief of Air Staff (CAS) Rakesh Kumar Singh Bhadauria observed, “the IAF is looking at AI application in the areas of threat monitoring, training, data and intelligence fusion and decision support.” 65 The IN is pursuing the last three areas of AI appli- cation. Automation is being seriously explored, but there is scepticism borne out of a lack of evidence about what algorithms can accomplish. Algorithms under- gird AI’s capacity to execute complex missions and Bhadauria asked, how would the AI face unpredictable combat environments and expressed his uncertainty over whether machines could be ‘taught’ to implement air combat strategies. 66
The IA has been somewhat laggard in embracing AI. Internally, the IA set-up the Army Technology Board (ATB), which was formerly under the Headquarters of Army Training Command (ARTRAC), which is now under the Perspective Planning (PP) Directorate at the IA Headquarters in New Delhi. 67 The ATB has a close interactive relationship with the Indian Institutes of Technology (IITs) and Indian Institute of Sciences (IISc) in addition to several other Research and Development (R&D) organisations, to bring new technologies including AI, to meet the IA’s requirements. 68 The IA’s Military College of Telecommunications Engineering (MCTE) has an AI Centre for Excellence (CoE) in Mhow. 69 There are specific initiatives underway to apply AI in the Army. The thrust areas for AI development and application for the IA according to the recently retired Chief of Army Staff (COAS) M M Naravane are: Situational awareness, fusion of sensors, faster decision-making, and autonomous weapons systems. He also asserted the importance of reorienting and introducing changes in combat doctrine, organisa- tion and structure of the IA if it is to effectively leverage AI.70
It can therefore be observed that the Navy is the most advanced in the adoption of AI technologies with the IAF following in second position and the IA a distant third. This pattern becomes evident even in the case of QT, though it is the least developed area among the three emerging technologies surveyed in this analysis.
QT is an area founded on the principles of quantum mechanics which anal- yses natural phenomena at the atomic, subatomic and other elementary par- ticles. 71 Quantum technology uses quantum superposition that enables rapid information, highly secure encrypted communications, advanced computing, cryptography and simulation. 72 All these QT applications have relevance to modern warfare and to the armed services. However, the least advanced area of investment and application in the Indian Armed Forces is QT. This is not surprising given that its application to warfare is only emerging even in the most advanced technological states. While the Indian armed services recognise QT’s importance at least on paper, this section is very brief in its assessment of QT by virtue of its incipience. The Government of India (GoI) for the first time in the Union Budget 2020-21 made an INR 8,000-crore allocation for the R&D of QT over a five-year period. 73
The areas of investment and application according to the mission are: “…quan- tum computers and computing, quantum communication, quantum key distri- bution, encryption, crypt analysis, quantum devices, quantum sensing, quantum materials, quantum clock and so on.” 74 Part of the spin-offs generated by this R&D investment under the GoI’s QT mission may help the armed services. Some of the areas that will benefit the armed services include cyber security, quantum sensing and aerospace engineering. The DRDO has already demonstrated a Quantum Key Distribution (QKD) link in collaboration with the Indian Institute of Technology (IIT), Delhi over 100 kilometres. QKD is vital to data security in the cyber domain. If the integrity and confidentiality of a message sent via the digital or cyber medium are to be preserved, QKD becomes very important.
For its part, the IN is working internally on developing quantum sensors. Quantum sensors are vital to the detection of submarines, which the IN is keen on securing. 75 There is work underway both in the public and private sectors to develop this niche technology, which the IN is seeking to leverage for its mis- sions. 76 The IAF recognises the importance of QT, but there is no specific evidence of the initiatives being pursued by the service. Former COAS Air Chief Marshal Bhadauria observed in 2020: “…technology such as big data analytics, AI and quantum computing have the potential to be both enablers and disruptors in the strategic battlespace of the near future.” 77
The IA is pursuing its own initiatives and incubating research in these areas. At Mhow where MCTE is located and also hosts the IA’s AI CoE, the service has established a quantum laboratory with the support of the Delhi-based National Security Council Secretariat (NSCS). 78 The lab is expected to focus on Quantum Key Distribution, Quantum Communication, Quantum Computing and Post-Quantum Cryptography. 79 The co-location of Cyber, AI and Quantum Technology R&D incubated in a single organisation in the form of the MCTE, mirrors the effort of the IN’s WESEE, which is the IN’s premier technology devel- oper for naval missions.
With time, QT will be leveraged by the Indian armed services for specific missions and tailored to their needs. As of now, the focus of the three branches of the military is still limited as far as QT is concerned. It has not gained the kind of technological maturity that cyber technology, and to a lesser extent AI, needs. Nevertheless, given the promising prospects of QT and its intersection or applicability with cyber security, there is likely to be significant investment. This is equally true for AI and cyber technology. Beyond the state and application of these emerging technologies by the three Indian armed services, we now need to turn to the legal and regulatory environment that is relevant to these technologies.
A carefully framed regulatory structure is crucial to address challenges emanating from emerging technologies and this section does some relevant stock-taking as well as suggestion-making.
The Information Technology Act was introduced in the year 2000 to deal with cyber interventions and was then revised in 2008. Similarly, the National Policy on Electronics was issued in 2012 and the National Cybersecurity Policy (NCSP) in 2013. Yet, till a few years ago, there were no well-coordinated and focused efforts towards cybersecurity, barring the founding of the Computer Emergency Response Team – India (CERT-IN) and similar organisations at the state level and defence forces. Sections 1(2) and 75 of the IT Act 2000 state that IT-related Indian laws are applicable within and outside India “if cause and action fall within the country’s territorial jurisdiction”. 80 The IT Act 2000 seeks to empower cyber commerce and enhance cyber activities and covers only limited aspects of cybercrime. 81 It is therefore imperative that India gets a Cyber Security Act to address forensics and cybercrime, as well as participating in and responding to cyber warfare and defence in the event of an attack. Further, as indicated earlier, invoking Article 352 for declaring an emergency needs to be done only in extreme and limited contexts. Therefore, such an act should have provisions for the gov- ernment to act in relevant domains during a cyber war, without affecting other aspects of national life that are not relevant to a cyber-attack. The Act should be able to deter IT infrastructure from attacks and conduct offensive operations against India’s adversaries. This can only happen through an Integrated National Cyber Strategy.
The National Cybersecurity Policy (NCSP) 2013, does not mention the creation and application of cyber power, or the role, organisational ability, and training of the Indian Armed Forces to execute cyber-enabled operations and cyber war. The National Security Council Secretariat (NSCS) coordinates and oversees cyber security issues, including cyber diplomacy. The National Cyber Security Coordinator has been entrusted with the responsibility of coordinating and synergising cyber security efforts. A Defence Cyber Agency (DCyA) exists, whose mandate is to train and equip the armed forces. India needs an Integrated National Strategy to strengthen cyber military capabilities.
A report in the public domain stresses the need for a cyber doctrine that has been developed by both civilians and the armed forces. This would prevent espionage in its own networks. The armed forces must have resources for cyber forensics and investigation of cybercrimes. Leaders must be conversant with the IT Act 2000 as amended in 2008. They should also be aware of the organisation for Internet Governance, ICANN, Tallinn Manuals and UN laws/deliberations on cyber war and cyber interventions. Section 69 of the IT Act empowers government offi- cials to undertake interception, monitoring and decryption of any information in computer resources. 82 However, these rules do not cover situations related to cyber war and defence thereof and hence the rules need to be amended. 83
Is there a need for a Data Protection Law? It will be a challenge for any gov- ernment to use Article 352 for military action in the cyber domain. 84 The govern- ment may be able to use this provision of the Constitution only in the event of simultaneous cyber and physical wars. Thus, it will reinforce national interests if
Article 352 is required to be invoked in events of cyber-attacks and all appropriate measures are taken without declaring an emergency.
However, the government may consider a formal response to cyberattacks with or without the use of Article 352. 85 In case of such an emergency, Article 51A (on Fundamental Duties) can be invoked. Since 2005, several attempts have been made for a resource register to facilitate the implementation of Article 51A. This project needs revival. The proposed Cybersecurity Act could help India sign the Convention of Cybercrime (Budapest Convention) to contain cybercrime at the international level. It is therefore necessary that the government retain the power to protect cyber forces without having to explain itself. Section 197 of the Code of Criminal Procedure 1973 also needs to be strengthened.
Artificial Intelligence
As of now, there are no laws specifically for AI, BD and ML. There is an absence of a legal definition of AI in India. In 2018 the government published two AI roadmaps -- the Report of Task Force on Artificial Intelligence by the AI Task Force constituted by the Ministry of Commerce and Industry and the National Strategy for Artificial Intelligence by Niti Aayog. 86 According to the ‘Global Legal Insights Report’, the government’s priority is towards the promotion of AI and its applications across various sectors.
In his paper on the AI Revolution in India, SS Vempati argues that India must view machine intelligence as a critical element of its national security strategy. 87 AI is being seen as a critical part of foreign policy between the United States and Japan. 88 India must similarly pursue AI proposals. The Indian government has to develop a national strategy that captures trends in emerging technology, which may have a long-term strategic impact. India will have to proceed in earnest to evaluate the Defence Advanced Research Projects Agency (DARPA) model of defence research. This has been pursued in cooperation with the private sector and academia in order to create dual-use technologies that are sufficiently large in scope to develop civilian technology applications. 89
Specifically, the Cyber Grand Challenge model of DARPA will need examina- tion for successful incentives to be generated for academia and the private sector. 90 Surveillance laws in India will need revisiting with the advent of AI-driven tech- nologies such as facial recognition, UAS, and self-driving cars, as they generate new avenues of surveillance for the state and have consequences for the right to freedom of expression and assembly. 91 Sector-wise protections can complement and expand on the baseline protections expressed and stipulated in national pri- vacy legislation. 92
Commenting on the NITI Aayog paper, one report also assesses that the current Indian Intellectual Property (IP) regime is ‘unattractive’ and does not create ade- quate incentives for research and adoption of AI. 93 Section 3(k) of the Patents Act permits exemptions for algorithms from patenting, while the Computer Related Inventions (CRI) Guidelines are controversial for the extent to which patenting of software is possible in the absence of a hardware component. 94 There is a veri- table absence in the paper of substantive answers to queries on whether patenting algorithms should be allowed, and if yes, to what extent it should be permitted. Furthermore, there needs to be standardisation in CRI Guidelines or the Patent Act that draws distinctions between AI algorithms and non-AI algorithms. 95
As one expert put it, “It is important for the Indian government to develop an intellectual property framework that encourages innovation. AI systems are trained by reading, viewing, and listening to copies of human-created works. AI designs conflict with tenets of copyright law in India. They pose the latest challenge to copyright law. If I was asked whether a copy made to train the AI algorithm is a ‘copy’ under the copyright law, and consequently whether such a copy is an infringement, my answer in the light of current law as it stands, is a big yes, and in some cases even data theft within the meaning of Section 43(a) read with Section 66 of the IT Act, 2000.” 96
Having surveyed some of the regulatory and legal issues surrounding emerging technologies in the Indian context, let us now turn to what some other countries have done with R&D, laws and regulations.
Having analysed India in detail, this section now aims to consider other countries to draw a comparison and leave the readers with some food for thought through insights that can be derived from the same.
China
The Chinese military’s focus is on research, development, and making AI opera- tional for the military. This is aided by laws and initiatives such as the National Security Law (2015), National Intelligence Law (2017), the New Generation Artificial Intelligence Development Plan, and Civil-Military Fusion. These ini- tiatives have ensured complete compliance and coordination between all Chinese entities. China in the past concentrated its efforts on controlling access to the internet via the Great Firewall. 97 Since July 2015 Beijing has implemented a series of laws and draft laws on internet controls and state access to private data. The Cybersecurity Law’s Article 37 necessitates that network operators in key sectors preserve data that is accumulated or produced by the network operator in the country. 98 Additionally, the law necessitates business information and data on Chinese citizens accumulated within China to be stored on domestic servers and not transferred abroad without permission. 99 The law covers a ban on exporting any economic, technological, or scientific data that would generate a national security threat or undermine the public interest. 100 The Cyberspace Administration of China (CAC) released the first National Cybersecurity Strategy (The Strategy), reaffirming China’s main positions and proposals relating to cyberspace develop- ment and security, and providing guidance for China’s work on cybersecurity. 101
The Strategy aims to build China into a cyber power simultaneously ensuring a secure, open and well-ordered cyberspace amid the protection of its sovereign- ty. 102 Undergirding the strategy is the view that cybersecurity is ‘the nation’s new territory for sovereignty’ and serves as the basis for exercising and systematically managing cyber control. 103
Russia
Located at the Russian Quantum Center, Russia has made investments in quan- tum computing. But its commitment to resources is not nearly as much as other countries and especially trails China and the US. 104 This in part correlates with the general reduction in Russian scientific research capacity since the 1990s. 105 President Vladimir Putin is believed to have increased expenditure on R&D by as much as 1 per cent of Russia’s Gross Domestic Product (GDP), with R187bn (US$3bn) allocated for fundamental scientific R&D in 2018. 106 Nonetheless, the latest advances and breakthroughs in quantum information science have not come about due to Russian researchers. For instance, US concerns are about an increasing ‘quantum gap’ with China, and not with Russia. 107 A decree was released by the President of the Russian Federation on the Development of Artificial Intelligence in the country. The national strategy lays out 5 and 10-year benchmarks for augmenting the country’s AI expertise, educational programmes, datasets, infrastructure, and legal regulatory system. 108 Evidence suggests that Russia will continue to pursue its 2008 defence modernisation agenda, calling for 30 per cent of the country’s military equipment to be robot-enabled by 2025. 109 In a quest to enhance development, Moscow announced in December 2019 that it planned an investment of USD 790 million over five years in quantum research adopting a five-year Russian Quantum Technologies Roadmap. 110 Not all these initiatives are military-related and information is scant in open sources about how Russia could potentially apply them to its military. 111
Brazil
First National Cybersecurity Strategy, 2018, also called ‘E-Ciber’ is Brazil’s first systematic effort to develop an overall view of cybersecurity incorporating diverse areas and Brazilian society as a whole. 112 The strategy attempts to build a culture of cybersecurity to communicate the government’s role in the years to come. 113 A National Cybersecurity Law is likely to follow. The Brazilian government thinks of cybersecurity as a piece of the overall picture dealing with information and communications security and encompassing cyber defence, physical as well as data security. 114 The first appearance and recognition of cyberspace as a strategic arena for national security was enunciated in the 2005 National Defence Policy, subsequently materialising into the National Defence Strategy of 2008. This started the steep militarisation of cybersecurity and defence during the ensuing decade. 115 Since then, substantial sums of money have been allocated under the annual budget to the Ministry of Defence (MoD) for the quick establishment of a Military System for Cyber Defence including, but not limited to, the Centre for Cyber Defence (CDCiber) and the Brazilian Cyber Defence Command (ComDCiber). 116 The 2014 Cyber Defence Military Doctrine, for example, defines cyber defence as ‘the set of offensive, defensive and exploratory actions to protect national information systems, gather data for national intelligence pur- poses and to compromise information systems of opponents. 117 The conflation of content regulation with cybersecurity may potentially produce outcomes that create greater confusion about the ‘roles and responsibilities of the GSI (cyber- security), Armed Forces (cyber defence), and Federal Police (cybercrime).’ 118 Even though the three should continue to ensure better coordination in incident response, greater confusion will not only increase the three cleavages highlighted by E-Ciber but also prove to be risky in developing the National Cybersecurity Law. The launch of a new AI strategy by Brazil aims to balance the ethical appli- cation of emerging technology while simultaneously boosting research and inno- vation in the sector. 119 After considerable public deliberation and engagement between December 2019 and March 2020, the strategy laid out six objectives. These include: 1) Developing ethical principles that guide the responsible use of AI, 2) Removing barriers to innovation, 3) Improving collaboration between gov- ernment, the private sector and researchers, 4) Developing AI skills, 5) Promoting investment in technologies, and 6) Advance Brazilian tech overseas.” 120
The Indian armed forces are gearing up to incorporate emerging technologies. However, there are challenges confronting the IN, particularly the lack of organic talent in AI that can credibly identify the areas of application. 121 There is still a deficit in data science talent and skill in the IN, but that is equally true for the other two services. This lacuna is only gradually being addressed with the IN signing an MoU with civilian institutions such as the Indraprastha Institute of Technology, which has introduced Master’s level courses in data science. 122 AI-related initiatives for the Navy have to emerge from within the service, rather than from professionals outside it. 123 In the case of the IA, the ATB has not had much success in incubating AI-based research, despite considerable interest and enthusiasm expressed by academia in the IITs and the Indian Institute of Science to contribute to defence-related research. 124 The Corps of Signals of the IA is gen- erally considered the prime repository of expertise in computer science and since it is closely allied to the field of AI, it must serve as the apex and lead entity in conducting AI-related research. 125 Other organisations such as the IA Directorate General of Information System (DGIS) have a large cohort of non-specialist offi- cers who are deputed to the DGIS for limited tenures with little or no expertise. The IAF for its part is yet to establish a comparable internal R&D institution like the IN’s CoE at INS Valsura, the IA’s Center for Artificial Intelligence (CAI) or the Quantum Lab located at the MCTE in Mhow. The IN is in the vanguard in applying emerging technologies to service its combat requirements. Neither the IA nor the IAF comes remotely close to matching IN’s WESEE in R&D. More broadly, Indian laws in the cyber and IT domains will need to be updated and provisions introduced to cater to the emergence of AI and quantum technologies. India can and should also consider adopting legislation and know-how of other countries.
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Editors’ Comments The second part of the volume ends here. As the reader would recognise, it attempted to give an overall sense of entire domains relevant to law-governance- justice, viz., law-making, national security, contract enforcement, as well as specific verticals such as land administration and taxation. It also attempted to expose the reader to broad disciplines relevant to law and justice as well as proactive deterrents such as forensic and behavioural science. It then is the right juncture to move to the third A, i.e., Analytics, which encompasses how data and its uses, through various kinds of modelling and analyses, can be put to use for a more effective law and justice ecosystem. |
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