Time to revisit the Nuremburg Code?

By Girijaa Upadhyay

There is wide engagement in various media and forums with the advances in Artificial Intelligence (AI), its promising interface with various aspects of humans and society in general. Simultaneously the negative effects of platforms on human psyche, behavior, moods and social engagements continue to be documented. We are also witnessing increasing litigation holding tech developers and platforms accountable for the damages wrought on children and others. The safe-harbour provisions for platforms /tech companies have also come to be seriously questioned.

This essay ruminates on the ethical aspects of data and “projects” conducted by all types of players – commercial, ,academic, civilian and defense ,in frontier technologies that now include the AI genus along with biosciences and neurosciences juxtaposed with  spatial privacy desecrations with satellites surveillance, mental intrusions and ability to alter behaviour, speech amongst other things. The centre-piece of study is the Human. It therefore appears reasonable to talk of its(!) protection, redressal, punishment, compensations and deterrents at national ,global and intra organizational levels to ensure data safety and the ethical conduct of “experiments”. It also wonders if data safety and anonymization is possible when we deal with the mind/ brain and hopes enterprises and innovators will explore solutions for the private citizen’s privacy protection, the sanctum sanctorum of the individual, family.

 It is difficult to imagine that the announcements of generative AI, deep-machine learning etc have come out of an  Archimedes – like   Eureka moment;  more likely it is the product of years of research. Most research is fronted by grandiose mission statements about the benefits to humanity, eradicating pain and diseases or generally focusing on its strategic importance. Tech development has moved from what wasperceivable, visible in the ancient analog era to partial physical visibility in the digital to cyberspace and now into the realm of the invisible -what you cannot see and the quantum era awaiting us. In this context what is in grave danger like never before are the fundamental rights of privacy, spatial and mental. Intrusions in physical space are not only in the form of old world bugs and phone recordings but now with satellites with which the access to your private space is easy and made easier for want of transparent, stringent space laws on jurisdictions and national laws/regulations to protect the citizen’s interests; laws that are comprehensible to common persons. Remote access of devices and possibly to minds probably also exists. It would be reasonable to expect that in case of such powerful and far reaching impact-technologies, collaborations between industries, defence, corporations, industry, academia and governments will most likely understate the exact state of knowledge. One suspects that a device like Neuralink appears rather an old world way of accessing the brain. But this is only speculation.

The positives of such intrusive technology are well touted often enough:: fighting crime, tracking terrorists and so on.  This paper ruminates about the downside possibilities, where whatever defines a human being, is threatened and destroyed. When the voice-over of Star Trek said space is the ultimate frontier or something to that effect it had no idea of where humans would go. The most potent force on this planet is the human mind and other forms of intelligence that Nature and the Cosmos  hold, as yet secret. The computer age was a novice’s attempt, in retrospect, at creating innocent but useful computational capabilities far beyond common  human capabilities, progressing to pattern recognition. But the mission and ambition to create machines in our image would require a deep study of language, the brain to begin with (you will notice not the mind)human responses and interpretations to stimuli ,social ,physical and mental now reduced to the lowest common denominator perhaps of electrical stimuli and algorithms. Since comprehending the mind ,the conscious and subconscious is perceived to be challenging for such AI and neurosciences? many experts believe AI will be still flummoxed by the Human. Intelligence is more than winning a chess game ,producing art or writing an essay. Voila! Are we to infer that both the left side and right side of the Brain have been fully understood?

 Returning from the above digression, the issue this ruminative piece wishes to place before fellow humans, the injured, governments, policy and lawmakers concerned is about the need to protect the sanctity of basic human right of existence. I am because I exist; because this is what defines each and everyone and it is sacred.

 A person is a composite of  body ,soul, brain mind ,conscious and subconscious and what else I do not know. Just as a travesty of the  body is not permissible, the same applies to one’s private space not only just physical but the social fabric of interpersonal relations,  including  children, spouse/partner, family and so too yours, as a social being. The brain, mind, the conscious and sub conscious terrains will perforce have been studied, little realizing that we may probably produce only a binary version of a complex multidimensional organism. People are of so many types and the mind such a complex entity that all the experiments are probably going to be stumped in understanding and interpreting emotions, thoughts, intent and the like. This is a layperson’s guess.  If the ‘dictators’ of creation think that human responses are based on electrical stimuli of certain regions of the brain, it is a vulgar understanding.

Man’s other distinguished achievement is the possibility of creating human life – reduced to a protein in a petra dish .I don’t know if Humans have visualized how these grand achievements are going to impact and alter the social and personal fabric shaped  by human history so far, including the Good , The Bad and the Ugly.

THE GREAT DESECRATION-: NEED FOR APPROPRIATE LAW AND LEXICON, crime prevention ,penalty, loss ,irretrievable loss & compensation

 Obtaining Data and Handling Data

Globally and in India too, Data Privacy laws are in place or under review for better protection of privacy–a fundamental right. There is both the issue of ethics in acquiring data and its handling.. Was it transparent ,was there ‘consent’? Here consent has to be explicit and has to be revocable at the wish of the provider. Consent can never ever be left to inference or interpretation by anybody under any circumstance-benevolent or otherwise. Next, what data is covered by consent again has to be specified without any ambiguity. And silence can never be interpreted as giving consent if the affected was muted gagged threatened or whatever. In the realm of technology when Humans are/have been or will be, experimental subjects, a plethora of safeguards and transparency laws are absolutely essential.

One of the items mentioned in the press in the Indian Data Privacy bill is the Voluntary Disclosure provision whereby someone who has committed an offence can move on after paying a penalty presumably to the aggrieved party. This needs clarification. The indulgence and extreme leniency to the offender does not sit well in a piece of legislation.. Is this ok?

The law also provides for alternate dispute resolution, or two parties resolving differences if they want to. It is a moot point how many citizens would be able to bear the brunt of civil  litigation both in terms of time, money and other resources.

There is a need for a new lexiconof crime and damages, compensation ,punishment in the age of invisible intrusion and travesty in private lives   and the most sacred place in the temple of the human being the sanctum sanctorum ,the personal space -and the mind, with imaginable and unimaginable consequences ,inducing behaviourial changes, altering speech , altering perceptions and interpersonal relations. These in turn can  have so many  far reaching consequences, such as  damaging image ,livelihood, loss of social standing and so on.

TRANSGRESS/TRESSPASS AND CRIME PREVENTION

The engagements with issues of crime prevention, redressal protection of individual fundamental rights in the current stage of civilization has moved to a different dimension -the cyber space and more – the universe of the intangible and the quantum era .You can see and report a burglary in your home ,an assault on your person, an insult or abuse but it is conceivable there are intrusions of a different kind that are invisible to any common person so it may be dismissed or ridiculed or action restrained ..where do you go for redressal? and how ? .The police and judiciary needs to come up to date and beyond to deal with such desecrations for want of a better word. Maybe we need futuristic Vigilance Councils with the expertise to detect violations, and devices like radars. The matter of prevention of transgressions and unethical use of personal data with malicious intentions is of utmost importance. In this grandiose quest of futuristic technologies the most crucial yet  the most vulnerable will be the individual. In addition to legal systems at national and global level, I do see entrepreneurial / innovation opportunities here due to the huge knowledge asymmetry between  common people and the technologies invisible in their transgressions ,intrusions and control. Never before has it become so imperative for prevention of crime and not just its punishment. A techno legal documentation and assurance of stoppage of such infiltrations is urgently required.

Globally in advanced countries liability laws and torts are being applied to tech use, which should also cover tech development, and prohibit any breaches in the full tech product cycles.

SPACE LAW JURISDICTION IN SATELLITE ERA AND INDIVIDUAL PRIVACY.

With surveillance facilitated by satellite constellations many experts have flagged the need for various laws regarding jurisdictions and need to protect privacy. This is an important piece of the big puzzle and if unresolved will perpetuate the vulnerability of individuals.

The vulnerability of individuals to unethical obtention , then use of personal data unauthorized in the first place is only best left to the imagination. Misuse of data ,misrepresentation to damage a person’s image create fake news, apart from other base tactics are wrongly and commonly assumed/used  to silence the desecrated. In no way do any of these malicious efforts take away the desecrated’s/aggrieved/injured’s  fundamental rights or recourse.

I am also skeptical about how the kind of data that will be required now for more advanced levels of machine learning etc can be anonymized. Data on consumer preferences is more amenable to anonymization. But when we move into the realms of minds and behavior and reactions perceptions etc how anonymous would such data be? This concern flows from the fact of the uniqueness of fingerprints of every person on this planet ( hence UID) but is also confused by the existence of herd mentality.  So as a corollary are  minds unique too?

MORAL SUASION, SELF AUDIT OF SAFETY ?

In such a powerful technology space where minds, speech and behaviour can be influenced /modified to some extent ,interpersonal relations affected and social fabric dented, the proposal for guardrails to be set up set by tech companies themselves is dangerous. There has to oversight by an independent regulatory body  represented by independent agents & civil society to regulate ethical  tech development by all players.

Safety ethics certification should be made mandatory. The safety aspects  cover how data is collected, transparency, contracted consent, compensation remuneration. Also the impact and use of the tech should not compromise the person .in any way. The information must be anonymized  and safety ensured assured. The injury and grievance for want of a better word ,if it falls into unethical use for titillation voyeurism given the exploitation of children women and men based on child pornography, voyeurism, vicarious mistreatment ,misogyny, damaging image, old ailments and dregs still in society, can be easily imagined. The use of children and adolescents as subjects of experiments needs a serious discussion and reevaluation. Ironically such unauthorized desecration of the individual and the sanctum sanctorum of private personal spaces alongside the grandiose design to make an inanimate even better if not equal to that glorious Human ,is barbaric. It could get even more shameful if the project designers bring their bigotry into the design of their projects thinking that it will absolve them of this disgraceful unauthorized intrusion and manipulation of humans targeted in their research . They deserve the harshest punishments for this desecration. It took a small amount of pig lard on the bayonets to trigger a mutiny, altering the course of  countries destinies.  Altering, compelling behaviour in contravention of one’s beliefs code/grain is barbaric and tortuous. All this is conceivable in using humans as experiment subjects .

There is a need for internal organizational Data safety protocols. All new tech developments should have a data safety and ethics confirmation certification and subject to an ethics audit before it can be alpha or beta tested. ( like the ISO standard of the old world). Data, program ,project ,Research Ethics disclosure must be a mandatory part of annual accounts and for listing  and deployment of new tools , AI , algos etc.

 BIO ETHICS IN THE FUTURISTIC ERA

Sad to say for such grand futuristic visions for technology its time to revisit the Nuremburg code . Does it ring a bell?

The Nuremburg Code set the guardrails for studies on humans in various experiments in various fields of science be it eugenics bio medical or behaviorial and neuroscience . The field of Bio Ethics ,the ethics used in  research of non human primates and other life has also a long history and consists now of strict humane regulations and safety requirements world over. There are live resources that are sacrificed at the end of experiments and some which are not, such as the non-human primates. It is no great challenge to anyone’s imagination how humans/ individuals can be ‘sacrificed’, causing unhappiness, impacting mental health, damaging reputation, causing financial losses , social ostracism and so on. I wonder if Humans will get the protection the non-human primates do? 

EXCHANGE OF DATA

Until these issues and safety protocols are in place, exchange of human data will be akin to trafficking. It is likely that even after regulations it may go the way of clinical trials i.e. trials in less developed constituencies. But at least there would be some guardrails and transparency, hopefully.

These and all the issues flagged above are issues of deep concern for all nations and the world together. A new chapter has to be added to cyber security which is already gearing to meet the challenges of cryptography and security , keeping business and governments’ interests in  the quantum era in mind. A chapter on citizens impact, security and protection is a dire need and needs a cohort to drive the mission for their inclusion in cyber security and whatever required field of knowledge.

Finally let the privileged -generals, rulers, leaders, corporate captains, law makers and enforcers , influencers ,the rich, the powerful , the creators ,the experts, scientists et al; be not deluded by the hubris of their invincibility. It may be possible or probable that they might be the ultimate candidates for deployment of these invasive futuristic technologies for effecting desired outcomes-political, commercial , sociological, personal and more. Sounds like sci fi?

Girijaa Upadhyay

July-Aug 2023 Unabridged version.