On November 18, 2022, the Ministry of Electronics & Information Technology (‘MeitY’) released the new Digital Personal Data Protection Bill, 2022 (‘2022 Bill’) as the governing legislation for personal data. Prior to the 2022 Bill, the Personal Data Protection Bill, 2019 (‘2019 Bill’) was the proposed legislation to govern personal data and protect data privacy. The 2019 Bill was withdrawn during the Monsoon session of Parliament in August 2022, after receiving significant amendments and recommendations from the Joint Committee of the Parliament in 2021.
The 2022 Bill has removed several provisions from the 2019 Bill, one of which pertains to the creation of a regulatory sandbox for encouraging innovation in artificial intelligence, machine-learning, or any other emerging technologies (under Clause 40 of the 2019 Bill). While some experts have criticised the 2022 Bill for not retaining this provision, I contend that the removal of the regulatory sandbox provision is a positive aspect of the 2022 Bill. In general, regulatory sandbox provisions should not be incorporated into data protection laws for the following reasons:
- The limited scope and purpose of data protection legislation
Data protection laws are drafted with the specific purpose of protecting personal data of individuals, creating a framework to process personal data, and laying down specific rights and responsibilities for data fiduciaries/processors. Although firms participating in a sandbox may process personal data, the functions of sandboxes are more expansive than regulating personal data processing. The primary purpose of regulatory sandboxes is to create isolated, controlled environments for the live testing, development, and restricted time-bound release of innovations. Sandboxes are also set-up to help regulatory authorities monitor and form adaptive regulations for these innovative technologies, as they are either partially or completely outside the purview of existing legislations.
Since the scope of regulatory sandboxes is broader than that of data protection legislations, it is insufficient for a sandbox provision to be included in a data protection legislation, with limited compliances and exemptions from the provisions of such legislation. A separate legislation is required to be drafted to regulate such emerging technologies.
The regulatory sandbox framework under the European Union’s Proposed Artificial Intelligence Act, 2021 (‘EU AI Act’), as well as the regulatory sandboxes established by SEBI, RBI, and other authorities in India demonstrate this clearly. These frameworks are established separately from existing legislations, and provide a specific scope and purpose for the sandbox in a clear and detailed manner.
- The limited expertise and conflicting mandate of a data protection authority
Data protection authorities (‘DPAs’) are appointed to protect the rights of data principals. They lack the necessary expertise over emerging technologies to also function as the supervisory authority for a regulatory sandbox. Hence, a regulatory sandbox is required to be monitored and supervised by a separate authority which has expertise over the specific areas for which the sandbox is created.
Moreover, it is not sufficient to merely constitute a separate authority for sandboxes within a data protection law. Since the supervisory authority for sandboxes is required to privilege innovation and development of technologies over the strict protection of personal data, the functions of this authority will be directly conflicting with those of the DPA. Therefore, the regulatory sandbox framework is required to be incorporated in a separate legislation altogether.
- Sector-specific compliance provisions for regulatory sandboxes
The desire to regulate artificial intelligence and emerging technologies under a data protection legislation is understandable, as these technologies process personal data. However, it is to be noted that AI systems and other emerging technologies also process non-personal data and anonymised data.
The regulatory sandbox for these technologies are thus not only subject to the principles of data protection law, but are in fact a nexus for information technology law, anti-discrimination law, consumer protection law, e-commerce law, and other applicable laws. Accordingly, the framework for the regulatory sandbox cannot be placed within a data protection legislation or subordinate rules to such a legislation. It has to be regulated under a separate framework which ensures all the relevant laws are taken into account, and the safeguards are not just limited to personal data safeguards.
Since the exemptions, mitigation of risks, and compliance for the different emerging technologies are to be specifically tailored to those technologies (across various laws), the regulatory mechanism for the same cannot be provided in a data protection legislation.
Conclusion
The above arguments establish the basis for not incorporating sandbox provisions within a data protection legislation. Regulatory sandboxes, based on their framework alone, do not belong in a data protection legislation. The innovation-centric mandate of the sandbox framework and the functions of the supervisory authority conflict with the core principles of data protection law and the primary functions of DPAs. The limited scope of data protection law, coupled with the lack of expertise of DPAs decisively establish the incongruence between the regulatory sandbox provision and data protection legislations.
Commentators who critique the exclusion of the sandbox provision from the 2022 Bill are right to be concerned about rapid developments in artificial intelligence and other emerging technologies. But it is far more prudent for them to recommend that the Central government set-up an expert committee to analyse these developments and prepare a separate framework for the sector. Such a framework can comprehensively account for the various mechanisms (beyond data protection) required to govern these emerging technologies.
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