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Law and Technology in India- An Analysis in the Pandemic year 2020 Introduction

We are standing at a moment of transformation in the conditions of economic production and human freedom which are managed through law. Law already is and will continue to be, a major domain in which the conditions of tomorrow are negotiated, but it cannot be thought of without understanding the technological, economic and social context in which it operates and the historical moment at which it intersects with these other disciplines. A systematic dedication to understanding how technology is affecting life and how law interacts with technology is a precondition to understanding the stakes and implications of the institutional battles we observe today.

Exploring the law and technology relationship Law has often to deal with technologies, i.e. with human activities which, employing the attainments of science, bring into existence new media, tools, devices, systems which improve the quality of life of human beings.

Some examples are-

Law and Information technologies: IT has made available tools such as e-documents and e-signatures. The law must cope with these technologies to regulate them or to make them legally available. Law and Food: The food chain requires the regulation of technologies related to food in order to guarantee, for example, high-quality standards. Law and Exploitation of natural resources (energies): Energies can be exploited thanks to the emergence of modern technologies. The law regulates the production, processing, distribution of energies and natural resources. Law and Biology: In order to provide a legal framework for medically assisted procreation or for cloning we have to deal with the technologies which allow obtaining gametes, stem cells, crossbreds, chimeras. Law and Medicine: Some choices related to the end-of-life issues which are legally significant are dependent on medical notions such as that of brain death. The same notion of therapeutic tenacity must be measured against the available technologies.

Utilization of Technology by Law

A. Technology has the capacity to change the contents of protected legal interests, as in the case of the right to privacy, which has been transformed by the rise of Information Technology. The so-called technology convergence in telecommunications swiped away the features which framed telecommunications as a natural monopoly, opening the market to a potentially infinite number of operators, enhancing the free competition within of the sector.

B. Law can also employ new technologies to pursue goals which were pursued by other technologies in the past. This is the case of the e-document, the e-signature, the payment of obligations through e-money, the conclusion of contracts through Internet, and so on. In all these examples, new rules set the possibilities of employment of digital technologies in order to attain this or that goal which was reached through other technologies in the past.

C. The role of technologies to help to create new commodities was true in the past for the new value prompted by the invention of printing, from which after a lengthy process the new right of copyright emerged. In more recent years this is happening with regard to data banks (of human tissues for example, but several other examples may be offered). The law is continuously confronted with the need for regulating new commodities which were unknown in the past.

Contract Law It is one of the steps taken to ensure data protection. The existing Indian legal framework for data protection from an off-shoring angle falls mainly under the law of contract. Under the Indian Contract Act, 1872, a company can bind another through a contract to protect the data of the former. This is possible because of the reason that the Act defines ‘consideration’ as any act or abstention at the desire of the promisor, which means that for certain reciprocal consideration, one firm can bind another so as to refrain from revealing data without authorization, and foist upon it the positive obligation to protect data.

Such a contract may mention the specific duties and obligations of both the parties involved and should have provisions relating to the duty of the Indian company to protect the privacy of data, as well as the terms and conditions of the use and processing of data. Currently, all off-shoring operations in India are regulated by such contracts. In a scenario like this, contractual clauses are crucial in order to determine the extent of data security. Most of the time, negotiations by foreign data exporters with Indian companies aim at reaching a balance between maximum business benefits and adequate protection of personal data.

RECENT EFFORTS IN INDIA TOWARDS DATA PROTECTION Instances of data theft have compelled both the government and the industry to remedy the situation as a response to international pressure, in terms of providing some sort of framework for data protection. Some of these efforts are discussed below.

Proposal to Amendment to the IT Act Proposed Amendments to The IT Act In view of growing concerns raised by recent instances of data theft, the Ministry of Information Technology proposed certain amendments to the IT Act, 2000. One such amendment, pertinent to data protection, is the proposed insertion of a new Section 43A wherein sensitive personal information would be handled with reasonable security practices and procedures.

CONCLUSION Without an in-depth understanding of the industry’s needs and what is involved in the protection of data and data privacy in India, all the above efforts will remain mere efforts. Nor would attempts to do patchwork on existing legislation, so as to protect data, meet the current need for a legal framework. Emulating the European example of data protection by distinguishing it from the protection of e-commerce transactions would undoubtedly place India on the global map when it comes to data protection.

The next few decades will offer more opportunities to do the right thing, as well as to go wrong. Incumbents will generally try to optimise law to protect their rents and business models. But in order to diagnose the likely benefits or costs of new practices, and, as a consequence, of the laws that will be proposed and opposed along the fault lines of these transformations, one must have a good analytical basis from which to evaluate both the old and the new and the stakes of the transition from one to the other. This is why the study of law and technology will be central to the understanding of human flourishing, welfare and freedom for many years to come.