legal personality for artificial intelligence? jacob turner personality for... ·...

Legal Personality for Artificial Intelligence?

Jacob Turner

Content

1. Legal and moral rights distinguished

2. Moral arguments for AI rights

3. Pragmatic arguments for AI legal personality

4. Challenges to AI legal personality

5. Helpful features for AI legal personality

(1) Legal and moral

rights distinguished

Rights for AI: Two Justifications

PragmaticEthical

Moral Rights

Legal Rights

(2) Moral arguments for AI

rights

Rights as Fictions: Animal Rights

UK Ill Treatment of Horses and Cattle Act 1822

Singapore Wild Animals and Birds Act Cap.

351 2000; Animals and Birds Act Cap. 7 2002

UK Animal Welfare (Sentencing and

Recognition of Sentience) Bill 2017

Naruto v Slater US Court of Appeals 9th Circuit.

Case: 16-15469, April 2018

Claim for habeas corpus rights for

chimpanzees rejected by New York Court of

Appeals, May 2018 ©David Slater…?

Rights as Fictions: Human Rights

Slavery - Dred Scott v Sandford (US

Supreme Court) 60 U.S. 393 1857

Universal Declaration of Human

Rights 1948

Gay marriage - Obergefell v Hodges,

(US Supreme Court) 576 U.S. 2015

Abortion – Irish Referendum 2018

Chief Justice Taney

Rights as Fictions: Environmental Rights

Christopher D. Stone, Should Trees

Have Standing? (1972)

Rome Statute of the International

Criminal Court (1998), Art. 8(2)(b)(iv)

Constitution of Ecuador (2008), Art.

56-60

Ganges and Yamuna Rivers granted

legal status by High Court of

Uttarakhand state in March 2017.

Overruled by Supreme Court in July

2017

“Methuselah”, Inyo County, California

Conclusions on Ethical Justifications for AI

Rights

Rights are not set in stone

If the recognition of rights depends on objective criteria, then we should extend rights to any entity which fulfils those criteria

Criteria which justify the grant of rights to other entities include the ability to suffer and compassion

If AI were to fulfil these criteria, then as a matter of ethical consistency we should extend similar protections to it

(3) Pragmatic Arguments

for AI Legal Personality

Legal Personality for AI

1.Is it possible?

2.Is it desirable?

Is Legal Personality for AI Possible?

Legal personality as a bundle of rights and obligations –Hans Kelsen, General Theory of Law and State (1945)

“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.”

- Chief Justice Marshall in Trustees of Dartmouth College v. Woodward 17 U.S. (4 Wheat.) 518 (1819).


Option 1: Housing AI within existingcorporate structures

Bayern,“The Implications of Modern Business-Entity Law for the Regulation of Autonomous Systems” European Journal of Risk Regulation (2) (2016), 297

Bayern, Burri, Grant, Häusermann, Möslein, and Williams, “Company Law and Autonomous Systems: A Blueprint for Lawyers, Entrepreneurs, and Regulators”, Hastings Science and Technology Law Journal, (2017) Vol. 9:2, 135-161

Likely effect of AI legal personality

Mutual recognition of (profit-making) legal entities in other EU States

“Companies or firms formed in accordance with the law of a MemberState and having their registered office, central administration orprincipal place of business within the Union shall, for the purposes ofthis Chapter, be treated in the same way as natural persons who arenationals of Member States.

‘Companies or firms’ means companies or firms constituted undercivil or commercial law, including cooperative societies, and otherlegal persons governed by public or private law, save for those whichare non-profit-making.”

- Art. 54, Treaty on the Functioning of the EU


Option 2: Housing AI within newcorporate structures

No closed list of possible legal persons

UK Court of Appeal recognises legal personality for Indian Temple which is “little more than a pile of stones” - Bumper Development Corp. v Commissioner of Police for the Metropolis [1991] 1 WLR 1362


Sophia the robot, ‘Citizen’ of Saudi Arabia

Is Legal Personality for AI desirable?

Justification 1: Bridging the “Accountability Gap”:

Who is responsible if AI causes harm?

Tort, contract, product liability, other strict liability? (see Module 2)

“For tomorrow’s agents… applying and extending existing doctrines in these ways may stretch legal interpretation to the point of breaking”

- Koops, Hildebrandt, Jaquet-Chiffell, ‘Bridging the Accountability Gap: Rights for New Entities in the Information Society?’ Minnesota Journal of Law, Science & Technology, 2010;11(2):497-561.

European Parliament’s Proposal

The European Parliament…

Calls on the Commission, when carrying out an impact assessment of its future

legislative instrument, to explore, analyse and consider the implications of all possible

legal solutions, such as ….

creating a specific legal status for robots in the long run, so that at least the most

sophisticated autonomous robots could be established as having the status of

electronic persons responsible for making good any damage they may cause, and

possibly applying electronic personality to cases where robots make autonomous

decisions or otherwise interact with third parties independently

- European Parliament resolution of 16 February 2017 with recommendations to

the Commission on Civil Law Rules on Robotics (2015/2103(INL)), 16 February

2017, (58 c.)


Justification 2: Bridging the “Retribution Gap”:

Difficulties identified in Module 2 of applying mens rearequirements to humans when crimes were immediated‘committed’ by AI

Avoids the “Retribution Gap” - see John Danaher, ‘Robots, Law and the Retribution Gap’ Ethics and Information Technology 18 (4):299–309 (2016)


Justification 3: Agents without Principals

AI now capable of concluding contracts. Raises questions as to agency and authority.

If AI agent was acting outside actual or ostensible authority then who is responsible for the obligations?

See further: Francisco Andrade, Paulo Novais, Jose Machado, and Jose Neves, ‘Contracting Agents: Legal Personality and Representation’, Artificial Intelligence and Law, Vol. 15 (2007), 357–373.


Justification 4: Distributing the fruits of AI ‘creativity’

Copyright, Patents, Designs

Free Speech

© Google (?)


Justification 5: Driving economic growth as part of a national AI strategy

Potential advantage to small, sophisticated, fast-moving nations.

Compare reforms of corporate law by “Offshore” jurisdictions to encourage companies to locate there

Consequent growth in local services industry, tax revenues, prestige, expertise

Ugland House, Grand Cayman

(4) Challenges for AI

Personality

Societal Disapproval

“We, Artificial Intelligence and Robotics experts, industry

leaders, law, medical and ethics experts… believe that

from an ethical and legal perspective, creating a legal

personality for a robot is inappropriate whatever the legal

status model”

- Open letter to the European Commission, April 2018

Response: such objections risk conflating moral and legal

personality, and thereby falling into the “Android Fallacy”.

Not all legal persons need the same rights.

AI Legal Personality as a ‘Liability Shield’

“We take the main case of the abuse of legal personality

to be this: natural persons using an artificial person to

shield themselves from the consequences of their

conduct”

- Joanna J. Bryson, Mihailis E. Diamantis, and Thomas D. Grant, ‘Of,

For, and By the People: The Legal Lacuna of Synthetic Persons’,

Artificial Intelligence and Law, Vol. 25, No. 3 (September 2017), 273–

291

Response: We can already pierce the corporate veil when there is

wrongdoing by an owner or a director of a company or other abuse of the

corporate structure. See Prest v Petrodel Resources Ltd [2013] UKSC 34,

and Goh Chan Peng v Beyonics Technology Ltd [2017] 2 SLR 592

AI rights being privileged over human rights

Fear that AI rights will override human rights

Coupled with issues of public unrest, concerns over

technological unemployment

Will AI rights rub salt into the wounds? Possibility of a

“tech-lash”, neo-Luddism

Response: As with all pragmatic exercises, the benefits

would need to outweigh the costs. We generally accept

that it is appropriate for company rights to outweigh natural

persons’ rights in some circumstances.

(5) Helpful Features for AI

Legal Personality

Identification of the AI

Legal persons generally represent unique, indivisible entities

AI systems may not follow this pattern – particularly if they

use ‘edge learning’ (i.e. localised versions of AI not

connected to the cloud) or utilise other types of distributed

networks

AI systems also constantly changing state

Potential Solution 1: Registration of AI source code. Use

distributed ledger technology (blockchain) to do so?

Potential Solution 2: AI could have parent and subsidiary

entities where systems are linked to each other

Ownership Trees

Parent Company

Division 1

Subsidiary

OpCo

Division 2 Division 3

Subsidiary

AI Rights

Likely to be restricted to economic ones in the first instance:

o Hold property (including IP it creates)

o Sue in Court

o Make contracts in their own name

Further civil rights which may be justified by circumstances

o Right to free speech/ expression (though perhaps within

tighter bounds than humans and corporations?)

o Compare: Citizens United v. Federal Election

Commission, 558 U.S. 310 (2010)

AI Obligations

Ability to incur liability, debt

Necessary in order for AI to “make good the damage it may

cause”

May meet some of the societal objections as to AI

unaccountability and use as a liability shield

Potential for AI criminal liability also? Compare corporate

criminal liability

What would the sanctions be? Fines? Deletion of AI system?

Recall that a company has “no body to kick and no soul to

damn”

Minimum Asset Requirements

Require that AI have a minimum level of assets in order to

operate in a particular environment (i.e. membership of a

trading room, or driving on a network of roads)

Compare: Basel III minimum regulatory capital requirements

for banks

Alternative: Compulsory insurance of AI systems - proposed

by European Parliament in February 2017 Resolution

Ownership and Management of AI

AI entity might be owned by

another AI entity

AI entities could then be owned by

a corporate person, or a human

(or any combination thereof)

AI entity might be managed by a

board of human directors

Possible (in theory) for a director of a company to be a non-natural

person

In 2014, an AI system was reportedly “appointed” to the board of

directors of a Hong Kong venture capital firm to assist in decision-

making.

Conclusions on AI Legal Personality

Rights can be moral, legal or both

Ethical justifications : suffering, instrumentalism, and

trans-humanism

Pragmatic justifications : accountability for harm caused,

ownership of benefits, and fostering innovation

Remaining challenges: identification, minimum asset

requirements, threshold for personality, control and

ownership

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