‘Emerging technology’ is a term that is relative to time and is constantly prone to change. Currently, it consists of developments in artificial intelligence, robotics, zero emission cars, etc. Law and policy are mechanisms of regulating emerging technologies. They provide a structure within which technology should be used; and lay down the repercussions of deviating from the provided structures. These legal and policy provisions have to be carved out intricately, with utmost care so as to minimize loopholes or account for the any that could arise. A few of the main legal and policy challenges facing emerging technologies are security, privacy, evidence and patents; which are the focus of this essay.

Encryption is a mechanism to codify our information so as to reduce unauthorized access to it. It is put to use by social networking platforms such as WhatsApp. However, excessive encryption is can be a threat, considering that an incessant amount of important information can be secretly transmitted in a coded form so as to facilitate unauthorized access to it. With an aim to curb this menace, the Australian parliament had, in 2018 passed the National Anti-Encryption Law which, without laying down a proper procedure, gave the government the right to possess decryption codes of data transmitters. Due to this, the data of private users is not completely secure and can be tampered with, without their knowledge. Thus, their privacy is threatened. Evidence collection also becomes difficult in cases of cyber crime especially due to the concept of dynamic IP address which makes it difficult to identify the originator computer and poses as a challenge to trace illegal activity to its roots.

Emerging technology demands efficient IPR policies, mainly patents. Policies that put down the grounds for possessing intellectual property rights have to be regularly pondered upon especially those that bear qualifications for an invention to be regarded as an intellectual property. Courts, through cases have continually decided on such policy matters in order to reduce their ambiguity. However, these ambiguities will keep on arising until innovation ceases and will keep on challenging policies which need to keep up with the pace of emerging technologies; and accommodate changes so as to provide clarity and reduce the burden of courts. A simple but harsh solution that the courts have given is, narrow down the qualifications for example in the case of Alice Corporation Pty. Ltd. v. Cls Bank International Et al[1]. This however, is a policy that is counter to incentivizing innovation. The current, most important challenge to policy, therefore, is to come up with one that is thought through, sufficiently accounts for the emerging technology at least in every upcoming decade; and encompasses all aspects from facilitating the introduction of technology to identifying and implementing the retribution for its misuse.

Emerging technology brings forth many legal and policy impediments the abovementioned ones seem to be very fundamental ones.

-Shruti Dhonde

Maharashtra National Law University, Mumbai

[1] 573 US_(2014)

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