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Introduction

The Senate bill introduced on 19 March 2024 in the United States would require online platforms to obtain consumer consent before using their data for Artificial Intelligence (AI) model training. If a company fails to obtain this consent, it would be considered a deceptive or unfair practice and result in enforcement action from the Federal Trade Commission (FTC) under the AI consumer opt-in, notification standards, and ethical norms for training (AI Consent) bill. The legislation aims to strengthen consumer protection and give Americans the power to determine how their data is used by online platforms. 

The proposed bill also seeks to create standards for disclosures, including requiring platforms to provide instructions to consumers on how they can affirm or rescind their consent. The option to grant or revoke consent should be made available at any time through an accessible and easily navigable mechanism, and the selection to withhold or reverse consent must be at least as prominent as the option to accept while taking the same number of steps or fewer as the option to accept.

The AI Consent bill directs the FTC to implement regulations to improve transparency by requiring companies to disclose when the data of individuals will be used to train AI and receive consumer opt-in to this use. 
The bill also commissions an FTC report on the technical feasibility of de-identifying data, given the rapid advancements in AI technologies, evaluating potential measures companies could take to effectively de-identify user data.

The definition of ‘Artificial Intelligence System’ under the proposed bill

ARTIFICIALINTELLIGENCE SYSTEM- The term artificial intelligence system“ means a machine-based system that—

1. Is capable of influencing the environment by producing an output, including predictions, recommendations or decisions, for a given set of objectives; and
2. 2. Uses machine or human-based data and inputs to

(i) Perceive real or virtual environments;

(ii) Abstract these perceptions into models through analysis in an automated manner (such as by using machine learning) or manually; and

(iii) Use model inference to formulate options for outcomes.

Importance of the proposed AI Consent Bill USA

1. Consumer Data Protection: The AI Consent bill primarily upholds the privacy rights of an individual. Consent is necessitated from the consumer before data is used for AI Training; the bill aims to empower individuals with unhinged autonomy over the use of personal information. The scope of the bill aligns with the greater objective of data protection laws globally, stressing the criticality of privacy rights and autonomy.

2. Prohibition Measures: The proposed bill intends to prohibit covered entities from exploiting the data of consumers for training purposes without their consent. This prohibition extends to the sale of data, transfer to third parties and usage. Such measures aim to prevent data misuse and exploitation of personal information. The bill aims to ensure companies are leveraged by consumer information for the development of AI without a transparent process of consent.

3. Transparent Consent Procedures: The bill calls for clear and conspicuous disclosures to be provided by the companies for the intended use of consumer data for AI training. The entities must provide a comprehensive explanation of data processing and its implications for consumers. The transparency fostered by the proposed bill allows consumers to make sound decisions about their data and its management, hence nurturing a sense of accountability and trust in data-driven practices.

4. Regulatory Compliance: The bill's guidelines call for strict requirements for procuring the consent of an individual. The entities must follow a prescribed mechanism for content solicitation, making the process streamlined and accessible for consumers. Moreover, the acquisition of content must be independent, i.e. without terms of service and other contractual obligations. These provisions underscore the importance of active and informed consent in data processing activities, reinforcing the principles of data protection and privacy.

5. Enforcement and Oversight: To enforce compliance with the provisions of the bill, robust mechanisms for oversight and enforcement are established. Violations of the prescribed regulations are treated as unfair or deceptive acts under its provisions. Empowering regulatory bodies like the FTC to ensure adherence to data privacy standards. By holding covered entities accountable for compliance, the bill fosters a culture of accountability and responsibility in data handling practices, thereby enhancing consumer trust and confidence in the digital ecosystem.

Importance of Data Anonymization

Data Anonymization is the process of concealing or removing personal or private information from the data set to safeguard the privacy of the individual associated with it. Anonymised data is a sort of information sanitisation in which data anonymisation techniques encrypt or delete personally identifying information from datasets to protect data privacy of the subject. This reduces the danger of unintentional exposure during information transfer across borders and allows for easier assessment and analytics after anonymisation. When personal information is compromised, the organisation suffers not just a security breach but also a breach of confidence from the client or consumer. Such assaults can result in a wide range of privacy infractions, including breach of contract, discrimination, and identity theft.

The AI consent bill asks the FTC to study data de-identification methods. Data anonymisation is critical to improving privacy protection since it reduces the danger of re-identification and unauthorised access to personal information. Regulatory bodies can increase privacy safeguards and reduce privacy risks connected with data processing operations by investigating and perhaps implementing anonymisation procedures.

The AI consent bill emphasises de-identification methods, as well as the DPDP Act 2023 in India, while not specifically talking about data de-identification, but it emphasises the data minimisation principles, which highlights the potential future focus on data anonymisation processes or techniques in India.

Conclusion

The proposed AI Consent bill in the US represents a significant step towards enhancing consumer privacy rights and data protection in the context of AI development. Through its stringent prohibitions, transparent consent procedures, regulatory compliance measures, and robust enforcement mechanisms, the bill strives to strike a balance between fostering innovation in AI technologies while safeguarding the privacy and autonomy of individuals.

References:

• https://fedscoop.com/consumer-data-consent-training-ai-models-senate-bill/#:~:text=%E2%80%9CThe%20AI%20CONSENT%20Act%20gives,Welch%20said%20in%20a%20statement
• https://www.dataguidance.com/news/usa-bill-ai-consent-act-introduced-house#:~:text=USA%3A%20Bill%20for%20the%20AI%20Consent%20Act%20introduced%20to%20House%20of%20Representatives,-ConsentPrivacy%20Law&text=On%20March%2019%2C%202024%2C%20US,the%20U.S.%20House%20of%20Representatives
• https://datenrecht.ch/en/usa-ai-consent-act-vorgeschlagen/
• https://www.lujan.senate.gov/newsroom/press-releases/lujan-welch-introduce-billto-require-online-platforms-receive-consumers-consent-before-using-their-personal-data-to-train-ai-models/

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Introduction

The nation got its first consolidated data protection regulation in the form of the Digital Personal Data Protection Act, 2023, in the month of August, and the Indian netizens got their independence in terms of data protection and privacy. The act lays heavy penalties for non-compliance with the provisions, and the same is under the jurisdiction of a Data Protection Board set up by the Central Government, which enjoys powers equivalent to a civil court. The act upholds the right to data privacy as the fundamental right under Article 19 (1)(A) and 21 of the Constitution of India. The same has been judicially supported in the form of the landmark judgement,  Jus. K.S Puttawamy vs. Union of India of 2018. Let us take a look at the impact the act will make on the Indian netizens. 

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What is Personal Data? 

Personal Data refers to any form of digitised data which can be directly replicated by any person. This includes email IDs, mobile numbers, health data, banking data, photos, etc. A person to whom the personal data belongs is called the Data Principle. A Data principle is anyone who is above the age of 18 years and consents to the data of children/minors. In the case of children/minors, it is mandatory for the parents or guardians to provide their express consent for the processing of personal data for all or any purposes. Any individual who is processing personal data is known as the Data Fiduciry, and individuals registered under the act may act as consent managers to make the consent transparent.  When it comes to the rights of the netizens, it is seen that the act is created with an aspect of  “Safety by Design” to secure the rights and responsibilities of the netizens. 

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Rights secured under the DPDP Act 2023

• Right to Grievance Redressal: The Data fiduciary and the consent manager are required to respond to the grievances of the Data Principal within a time period, which is soon to be prescribed, thus creating a blanket of responsibility for the data fiduciary and consent manager. 
• Right to Nominate: Data Principals have the right to nominate any other individual who shall, in the event of death or incapacity of the data principal, exercise his/her rights.  
• Right to access to information: The Data principal has the right to seek confirmation from Data fiduciaries regarding the processing of their personal data and the summary of the processed data as well. 
• Right to Erasure and Correction: Data principals can reach out to the data fiduciaries in order to exercise their right to correct, complete, update and erasure of their personal data.  
• Territorial Rights: The data is to be processed within India, and processing outside India should be in regard to the services provided in India. 
• Material Rights: The rights are applicable to any personal data collected in digitised form and also for the data collected in a non-digital form but subsequently digitised. 

Obligations for Data Fiduciaries 

The data fiduciaries are mandated to oblige with the following provisions in order to maintain compliance with the laws of the land and by securing the Digital rights of the netizens. 

These are the obligations of the data fiduciaries: 

• Implement technical and organisational measures to safeguard Personal Data. 
• Determine the legal grounds for processing and obtaining consent from Data principals where required. 
• Provide a privacy notice while obtaining consent from Data principals. 
• Implement a mechanism for data principals to exercise their rights.
• Implement a grievance redressal mechanism for handling the queries from Data principals. 
• Irrecoverably delete personal data after the purpose for which it was collected has expired or when the consent has been withdrawn. 
• Have a breach management policy to notify the data protection board and the data principals in accordance with prescribed timelines. 
• Sign a valid contract with Data processors to ensure key obligations are abided by them, including timely deletion of data. 

Conclusion 

As the world steps into the digital age, it is pertinent for the governments of the world to come up with efficient and effective legislation to protect cyber rights and responsibilities, but as cyberspace has no boundaries, nations need to work in synergy to protect their cyber interests and netizens. This can only begin once all nations have indigenous Cyber laws and rights to protect netizens, and the same has been addressed by the Indian Government in the form of the Digital Perosnl Data Protection Act, 2023. The future is full of emerging technologies and the evolution of cyber laws; hence, consolidating a basic legal structure now is of utmost importance and the same is expected to be strengthened in India by the soon-to-be-released Draft Digital India Bill.  

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Introduction

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The courts in India have repeatedly emphasised the importance of “enhanced customer protection” and “limited liability” on their part. The rationale behind such imperatives is to extend security against exploitation by institutions that are equipped with all the means to manipulate customers. India, with its looming financial literacy gaps that have to be addressed, needs to curb any manipulation on the part of banking institutions. Various studies have highlighted this gap in recent times; for example, according to the National Centre for Financial Education, only 27% of Indian people are financially literate, which is much less than the 42% global average. With only 19% of millennials exhibiting sufficient financial awareness yet expressing high trust in their financial skills, the issue is very worrisome. Thus, the increasing number of financial frauds intensifies the issue. 

Zero Liability in Cyber Frauds: Regulatory Safeguards for Digital Banking Customers

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In light of the growing emphasis on financial inclusion and consumer protection, and in response to the recent rise in complaints regarding unauthorised debits from customer accounts and cards, the framework for assessing customer liability in such cases has been re-evaluated. The RBI’s circular dated July 6, 2017 titled “Customer Protection-Limited Liability of Customers in Unauthorised Electronic Banking Transactions”  serves as the foundation for regulatory protections for Indian customers of digital banking. A clear and organised framework for determining customer accountability is outlined in the circular, which acknowledges the exponential increase in electronic transactions and related scams. It assigns proportional obligations for unauthorised transactions resulting from system-level breaches, client carelessness, and bank contributory negligence. Most importantly it establishes the zero responsibility concept, which protects clients from monetary losses in cases when the bank or another system component is at fault and the client promptly reports the breach. 

This directive’s sophisticated approach to consumer protection is what makes it unique. It requires banks to set up strong fraud prevention systems, proactive alerting systems, and round-the-clock reporting systems. Furthermore, it significantly alters the power dynamics between financial institutions and customers by placing the onus of demonstrating customer negligence completely on the bank. The circular emphasises prompt reversal of funds to impacted customers and requires banks to implement Board-approved policies on liability to redress. As a result, it is a consumer rights charter rather than just a compliance document, promoting confidence and financial accountability in India’s digital banking sector. 

Judicial Endorsement in Reinforcing the Zero Liability Principle

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 In the case of Suresh Chandra Negi & Anr. v. Bank of Baroda & Ors. (Writ (C) No. 24192 of 2022) The Allahabad High Court reaffirmed that the burden of proving consumer accountability rests firmly on the banking institution, hence reaffirming the zero liability concept in circumstances of unapproved electronic banking transactions. The Division bench emphasised the regulatory requirement that banks provide adequate proof before assigning blame to customers, citing Clause 12 of the RBI’s circular dated June 6, 2017, Customer Protection—Limited Liability of Customers in Unauthorised Electronic Banking Transactions. In a similar scenario, the Bombay HC held that a customer is entitled to zero liability when an authorized transaction occurs due to a third-party breach, where the deficiency lies neither with the bank nor the customer, provided the fraud is promptly reported. 

The zero liability principle, as envisaged under Clause 8 of the RBI circular, has emerged as a cornerstone of consumer protection in India’s digital banking ecosystem.  

Another landmark judgment that has given this principle the front stage in addressing banking frauds is Hare Ram Singh vs RBI &Ors. (W.P. (C) 13497/2022) laid down by Delhi HC which is an important legal turning point in the development of the zero liability principle under the RBI’s 2017 framework. The court reiterated the need to evaluate customer diligence in light of new fraud tactics like phishing and vishing by holding the State Bank of India (SBI) liable for a cyber fraud incident even though the transactions were authenticated by OTP. The ruling made it clear that when complex social engineering or technical manipulation is used, banks are nonetheless accountable even if they only rely on OTP validation. The legal protection provided to victims of unauthorised electronic banking transactions is strengthened by the court’s emphasis on the bank having the burden of evidence in accordance with RBI standards. 

Importantly, this ruling lays the full burden of securing digital banking systems on financial organisations and supports the judiciary’s increasing acknowledgement of the digital asymmetry between banks and consumers. It emphasises that prompt consumer reporting, banks’ failure to disclose important credentials, and their own operational errors must all be taken into consideration when determining culpability. As a result, this decision establishes a strong precedent that will increase consumer confidence, promote systemic advancements in digital risk management, and better integrate the zero liability standard into Indian digital banking law. In a time when cyber vulnerabilities are growing, it acts as a beacon for financial accountability. 

Conclusion

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The Zero Liability Principle serves as a vital safety net for customers navigating an increasingly intricate and precarious financial environment in a time when digital transactions are the foundation of contemporary banking. In addition to codifying strong safeguards against unauthorized electronic transactions, the RBI’s 2017 framework rebalanced  the fiduciary relationship by putting financial institutions squarely in charge. Through significant rulings, the courts have upheld this protective culture and emphasised that banks, not the victims of cybercrime, bear the burden of proof. 

It would be crucial to execute these principles consistently, review them frequently, and raise public awareness as India transitions to a more digital economy. In order to ensure that consumers are not only protected but also empowered must become more than just a policy on paper. 

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References

• https://www.business-standard.com/content/specials/making-money-vs-managing-money-india-s-critical-financial-literacy-gap-125021900786_1.html 
• https://www.livelaw.in/high-court/allahabad-high-court/allahabad-high-court-ruling-bank-liability-unauthorized-electronic-transaction-and-customer-fault-297962 
• https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/1635616/cyber-law-series-2-issue-10-the-zero-liability-principle-in-cyber-fraud-hare-ram-singh-v-reserve-bank-of-india-ors-case 

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