Report on Concurring Opinions Symposium on Artificial Agents – II

Today, I’m continuing my wrap-up of the Concurring Opinions online symposium on A Legal Theory for Autonomous Artificial Agents. I’ll be noting below the various responses to the book and point to my responses to them (Part I of this wrap-up was posted yesterday).

While almost all respondents seem to have seriously engaged with the book’s analysis, Ryan Calo wrote a disappointingly unengaged, and at times, patronizing post that ostensibly focused on the book’s methodological adoption of the intentional stance; it seemed to suggest that all we were doing was primitive anthropomorphizing. This was a pretty comprehensive misread of the book’s argument, so I struggled to find anything to say in response. Calo also said he didn’t know whether an autonomous robot was like a hammer or not; this was a bizarre admission coming from someone that is concerned with the legal implications of robotics. I noted in one of my responses that figuring out the answer to that question can be aided by some intuition-tickling questions (Like: Would NASA send a hammer to explore Mars? Can hammers drive?). Calo’s follow-up post to my comment on his post was roughly along the lines of “We don’t know what to do with artificial agents.” Well, yes, but I thought the point was to evaluate the attempt currently mounted in our book? I didn’t quite understand the point of Calo’s responses: that we don’t have a comprehensive theory for artificial agents i.e., the book’s title is misleading? I could be persuaded into mounting a guilty plea for that. But the point of the book was to indicate how existing doctrines could be so suitably modified to start accommodating artificial agents- that is how a legal theory will be built up in a common law system.

Deborah DeMott (Duke) whose writings on the common law doctrines of agency were very useful in our analysis in the book offered a very good analysis of our attempts to apply that doctrine to artificial agents. While DeMott disagreed with the exactness of the fit, she seemed not to think that it was completely off-base (she certainly found our attempt “lively and ingenious”!); in my response I attempted to clarify and defend some of our reasons for why we thought agency doctrine would work with artificial agents.

Ken Anderson (American University, Volokh Conspiracy) then discussed our treatment of intentionality and deployment of the intentional stance, and queried whether we intended to use the intentional stance merely as a heuristic device or whether we were, in fact, making a broader claim for intentionality in general. In my response I noted that we wanted to do both: use it as a methodological stance, and in doing so, also point an investigative lens at our understanding of intentionality in general. Ken’s reaction was very positive; he thought the book had hit a “sweet spot” in not being excessively pie-in-the-sky while offering serious doctrinal recommendations.

Ian Kerr (Ottawa), in his response, didn’t feel the book went far enough in suggesting a workable theory for artificial agents; if I understood Ian correctly, his central complaint was that the theory relied too much on older legal categories and doctrines and that artificial agents might need an entirely new set of legal frameworks. But Ian also felt the slow and steady march of the common law was the best way to handle the challenges posed by artificial agents. So, interestingly enough, I agree with Ian; and I think Ian should be less dissatisfied than he is; our book is  merely the first attempt to try and leverage the common law to make these steps to work towards a more comprehensive theory. In fact, given rapid developments in artificial agents, the law is largely going to be playing catchup more than anything else.

Andrew Sutter then wrote a critical, rich response, one that took aim at the book’s rhetoric, its methodology, and its philosophical stance. I greatly enjoyed my jousting with Andrew during this symposium, and my response to his post–and to his subsequent comments–in which I attempted to clarify my philosophical stance and presuppositions, will show that.

Harry Surden (Colorado) wrote a very good post on two understanding of artificial intelligence’s objectives–intelligence as the replication of human cognitive capacities by either replicating human methods of achieving them or via simulations that utilize other techniques–and how these could or would be crucial in the legal response to its achievements. My response to Surden acknowledged the importance of these distinctions and noted that this should also cause us to think about how we often ascribe human cognition a certain standing that arises largely because of a lack of understanding of its principles. (This also provoked an interesting discussion with AJ Sutter.)

Andrea Matwyshyn wrote an excellent, seriously engaged post that took head-on, the fairly detailed and intricate arguments of Chapter 2 (where we offer a solution for the so-called contracting problem by offering an argument that artificial agents be considered legal agents of their users). My response to Matwyshyn acknowledged the force of her various critical points while trying to expand and elaborate the economic incentivizing motivation for our claim that artificial agents should be considered as non-identical with their creators and/or deployers.

Once again, I am grateful to Frank Pasquale and the folks over at Concurring Opinions for staging the symposium and to all the participants for their responses.

Report on Concurring Opinions Symposium on Artificial Agents – I

The Concurring Opinions online symposium on my recently-released book A Legal Theory for Autonomous Artificial Agents (University of Michigan Press, 2011) wrapped up yesterday. The respondents to the book blogged on it from Tuesday till Thursday last week; from Friday till Monday I spent most of my time putting together responses to the excellent responses offered by the participants; I also replied to comments made by blog readers (two of whom, Patrick S. O’Donnell and AJ Sutter, provided very thoughtful and critical commentary).

Frank Pasquale (Seton Hall) organized the symposium and announced it on the blog on February 2nd.  The symposium was kicked off by Sonia Katyal (Fordham) who responded to the book’s argument for legal personhood for artificial agents. While positive in her response, Katyal was curious about whether a strong enough case for legal personhood had been made yet (compared to the historical case for corporations for instance). (This was useful in helping me think about how such a legal-empirical case could be made for artificial agents’ legal personhood, something I alluded to in my response.)

James Grimmelmann (New York Law School) then followed up with a post that addressed the law’s response to complex systems and pointed out that responding to the presence of artificial agents could or would draw upon some of those patterns of response. (Sonia and James had started things a little early so my introductory post on artificial agents showed up after theirs!) James also wrote a follow-up to his first piece, which further elaborated on some of law’s strategies for dealing with complexity, pointing out the grant of personhood was not inevitable. These posts were very useful in illustrating the law’s pragmatic stance towards the presence of complex systems. (Danielle Citron (Maryland), incidentally, wrote a reminder of how automated decision making has been causing a headache for administrative law; in the original version of our book we had begun work on a chapter that addressed this but left it on the cutting floor; it would be good to resurrect that at some point.)

Lawrence Solum (Georgetown and Illinois), who has been writing at the intersection of philosophy and law for many years, then wrote a post suggesting that some dimensions of the problem of artificial agents’ legal personhood could be illustrated by a thought experiment involving zombies.  (I drew upon this thought experiment with another one of my own: how would we respond to extraterrestrials that petitioned for legal personhood?)

Frank Pasquale then pointed out how bots were being used for political campaigning and could be said to be contributing to political speech; this was really quite a provocative and fascinating post and I regret not having addressed it over at CO in my responses. I will do so soon here.

Ugo Pagallo (Georgetown and Turin), staying with the legal personhood theme, then questioned several aspects of our personhood argument, (while agreeing with our agency analysis in earlier parts of the book). In my response to Ugo, I suggested we were in greater argument than it might have originally seemed. Ramesh Subramanian (Yale ISP and Quinnipiac), meanwhile, took the argument for legal personhood seriously, and wondered more broadly about what some of its futuristic implications could be.

I will have another post tomorrow with summaries and descriptions of the various responses and the discussions that followed. This was an exhausting and invigorating experience in more ways than one.

Bill Keller Needs to Drop the Snark and Do Serious Journalism

Over at the New York Times, Bill Keller, who has been doing his best to make sure it will be hard to take him for a serious  journalist, writes a piece–bursting to the seams with snark–on Wikileaks. Keller thinks he is providing a serious evaluation of the fallout of Wikileaks (most particularly, its leaking of a gigantic corpus of military and diplomatic secrets last year). But Keller–whose trafficking in superficiality has been embarassingly on display for all too long on the NYT’s Op-Ed’s pages–simply cannot be bothered with seriously engaging with the issues that Wikileaks raised. Like: the need for transparency for those in power (as opposed to the privacy rights of individuals); the relationship of journalists with politicians; and most importantly, the all-too-evident eagerness of modern journalists to roll over and play faithful stenographer or megaphone for Wall Street, Capitol Hill and the Pentagon.

Instead, all Keller can do, in a pathetic display of lame attempts at sophomoric snark, is dish out one jibe after the other at Julian Assange. (His evident dislike for Assange tells me that Assange really hit home.) There are, count-em, sixteen paragraphs in Keller’s peice. It’s not till we get to the seventh or eighth paragraph that Keller stops being juvenile and starts to say something substantive.

And it’s not much. Roughly: Wikileaks exposed too much. In response, the always-secretive have become more secretive. And now life is harder for all us Serious Journalists[tm]. So let me get this straight:  in response to exposure,  those ensconced in power have dug their heels in, become more opaque, stepped up their chilling attacks on journalists and potential whistle-blowers, and this is Wikileaks fault? Could Keller be more offensive, more of a fawning lapdog of the powerful and the opaque, if he tried? I don’t think so.

Keller also forgets, in his Why-Did-This-Nonconformist-Crash-This-Comfortable-Politician-And-Media-Garden-Party litany, the role that the rest of his supine media crew played in ensuring that Wikileaks’ impact was minimized. Who took up cudgels on Wikileaks behalf? Did the media give ample column inches and airtime to the case for Wikileaks? Were the corporate-government smear jobs on Wikileaks adequately highlighted? Has the media establishment stepped back from its passionate embrace of those in power and looked a little more closely, a little more aggressively, at their pronouncements? They are the ones in power, remember?

If the secretive and powerful have become more secretive in response to exposure, the response of a serious journalist should be to make sure the secrecy is investigated even more closely.  It most emphatically should not be to shower scorn and ridicule on those who took risks in trying to expose the powerful. The idiotic quoting of the off-base SNL skit, which confuses the privacy of private citizens with the opacity of governmental entities, is perhaps the best indication that Keller has lost the plot. But far more offensive is the simpleminded acceptance of the government’s position: if you dare expose us, we’ll become even more secretive.

Keller is pushing back at the wrong forces in this debate. In doing that, he is merely the latest depressing example of the incestuous embrace of the political and media establishments in this nation.

Chiasson on Pinsky: Meeting Poetry with More Poetry

Reviews of poets and poetry can often be tedious: the poet is sometimes trampled by the reviewer’s exegesis and analysis; sometimes we wish merely to be pointed toward the poem. But sometimes the reviewer can, in his responses, show his own poetic instinct. In his review of Robert Pinsky‘s Selected Poems (New York Review of Books, January 12 2012, Volume LIX, Number 1), Dan Chiasson pulls off this rather neat trick. He writes sympathetically on Pinsky, and in his responses finds a poetic register of his own.

In writing on Pinsky’s “The Green Piano” which includes the line “Ivory and umber, so you stood half done, a throbbing mistreated noble”, Chiasson responds:

This thing is doomed, a sacrificial beast; but also poignant, precisely because it is so cruelly and excessively disembodied. Its body gets budged, bonged, dinged, cracked, swabbed, antiqued, painted green, painted pink, and finally junked. It then goes out of existence, until Pinsky writes a poem named for it, that replaces it, the “iron and brass, ten kinds of hardwood and felt” reconstituted by, and therefore trumped by, language. You can memorize “The Green Piano”; to carry the green piano with you would be a much more cumbersome proposition.

Then, writing of Pinsky’s “Rhyme”, whichconcludes with the stanza:

In a room, a rhyme, a song.
In the box, in books: each element
An instrument, the body
Still straining to parrot
The spirit, a being of air.

Chiasson responds:

 The crucial moment here is when the word “parrot” becomes a verb; by “parroting” we become stuffed parrots, taxidermy versions of ourselves, suspended forever in the art we leave behind. It’s a brilliant trick, used to deliver the news, both good and bad, that our artifacts…outlast us. New, future souls, assemble inside them.

Later, Chiasson continues, in speaking more generally of Pinsky’s work:

The vision of poetry as a cross-temporal congregation of souls is something Pinsky wants his poems to represent, rather than just imply. It is not easy in poetry–a medium that favors compression and symbolic substitution–to devise a style that honors the actuality of individual persons while also suggesting their cosmic inconsequence, as well as one’s own. This problem impels all of Pinsky’s writing; his imagination toggles constantly between panorama and detail, big picture and individual pixel. Both scales have a moral justification; both imply one sort of truth; but neither one is in itself a complete assessment of human reality and the one tends to negate the other.

Chiasson’s essay is a good example of how to find the right sort of pitch in responding critically to a poem; show us the poems; let us read them; and make your responses poetic as well. Stay away from theory; if it is the power of language that is to be gloried in, then do so not by burying it in stultifying, exegetical indulgences, but rather, by providing, in the critical response. ever more examples of poetic skill and facility. In his essay, Chiasson comes close to seizing on a truth we often feel but rarely articulate: we  approach the poetic heart only by the poem.

Russell on Marx as Excessively Practical Messiah and Schoolman

In his sometimes cranky, often witty, and always erudite History of Western Philosophy Bertrand Russell paints deflationary portraits of many members of the Western philosophical tradition.  (Russell is particularly witty when dealing with Kant and Nietzsche; those treatments will soon form the subject of posts here). He also shows a rare talent for the artful digression, which I want to illustrate by pointing to a couple of his asides on Marx.

In a  chapter titled St. Augustine’s Philosophy and Theology, Russell, immediately after informing us that the eschatology of The City of God is “Jewish in origin, and came into Christianity mainly through the Book of Revelation” and that Augustine’s primary talent lay in bringing together the “sacred and profane history” of the Old Testament and relating it to the history of his time in “such a way that the fall of the Western Empire, and the subsequent period of confusion, could be assimilated by Christians without any unduly severe trial of their faith,” goes on to say:

The Jewish pattern of history, past and future, is such as to make a powerful appeal to the oppressed and unfortunate at all times. St. Augustine adapted this pattern to Christianity, Marx to Socialism. To understand Marx psychologically, one should use the following dictionary:

Yahweh = Dialectial Materialism

The Messiah = Marx

The Elect = The Proletariat

The Church = The Communist Party

The Second Coming = The Revolution

Hell = Punishment of the Capitalists

The Millennium = The Communist Commonwealth

I do not know if the analogizing of Marxism to a religion or the description of Marx as Messiah began with Russell–it certainly didn’t end with him–but I doubt if anyone has quite so deftly moved from a discussion of medieval philosophers to doing so.

Later, in a chapter titled Locke’s Political Philosophy, Russell, after noting that the labor theory of value is to be found in Locke, and may be traced back to Aquinas, quotes R. H. Tawney’s Religion and the Rise of Capitalism:

The essence of the argument was that payment may properly be demanded by the craftsmen who make the goods, or by the merchants who transport them, for both labour in their vocation and serve the common need. The unpardonable sin is that of the middleman , who snatches private gain by the exploitation of public necessities. The true descendant of the doctrines of Aquinas is the labor theory of value. The last of the schoolmen was Karl Marx.

When Russell does get to discussing Marx directly, he is frank enough to admit that he finds Marx not philosophical enough:

Considered purely as a philosopher, Marx has grave shortcomings. He is too practical, too much wrapped up in the problems of his time. His purview is confined to this planet, and, within this planet, to man.

Marx might have resisted the description of himself as a Prophet, and perhaps even as merely having inherited the mantle of an older tradition of philosophizing, but I doubt whether he would have reckoned it a serious criticism of his thought that it was all too tightly bound to man, to this earthly domain of concern.

Nietzsche on Bloggers and Blogging

Today, continuing my series of posts on In Nietzsche You Can Find a Line for Everything, I give you Nietzsche on bloggers and blogging.

(The first two posts in this series drew on Human, All Too Human: A Book For Free Spirits, translated by RJ Hollingdale, Cambridge University Press, 1986 (this version includes Volume 2: Assorted Opinions and Maxims); that trend continues here, and will continue do do so for a while, though I suspect that as I teach my current semester’s seminar on Nietzsche, I will draw on other sources as well. The reliance on Human, All Too Human is grounded in my marking many of its passages as sources of sources of blogging inspiration; I will only move on when I have exhausted them. Which could, of course, take me many years. But who’s rushing? )

So, without further ado we have, first, from Volume 1, Chapter 8, “A Glance at the State”, Section 482:

And to repeat. – Public opinions – private indolence.

And then, from Volume 1, Chapter 9, “Man Alone with Himself”, Section 525:

Adherents out of contradictoriness. – He who has raised men up in rage against him has gained a party in his favor too.

I’m tempted to let these pass without comment but since this about this post is about the indulgences of blogging, why not bloviate a bit?

Section 482’s suggestion of private indolence’s entailment from public opinions is certainly provocative, and like most good Nietzschean aphorisms cuts uncomfortably close to the bone. How much easier to pontificate, prescribe and preach in public than to practice in private! (Apologies for the rampant and extravgant alliteration, it was entirely unintended.) The blogger invites diagnosis and treatment by his visible neurosis, on his insistence on exposing us to his need for public exposure. What private tasks has he left unaccomplished in his rush to publicize his ramblings?

Section 525’s linkage of blogging success and visibility to contrariness is even more suggestive. To be more than a speck of foam in the ocean of bloggers and blogging, conflict and engagement seems necessary. Votes of approval, chimings-in of support, acolytic hosannahs of one’s fellow-bloggers and writers simply will not do; better to rush on headlong into conflict, provoke outraged reaction, and to dispense advice, correction and critique freely.  Deploy the polemicist’s arsenal; drop all pretense to politeness; honey is over-rated; bring on the vinegar!

But Section 525’s real punch lies in helping us understand Nietzsche’s writing, his “will to power” even better. He wrote to make us read him; to re-read him, to return to him again and again to understand him, to figure him out. He might have feared a lack of comprehension of his ideas, a rejection of his claims. But he feared even more a systematic lack of attention, a casting aside and passing on. By writing again and again in a way that went straight for the jugular of so many of our safely established moral and intellectual comforts, he forced us to keep reading him, even if not  in agreement (and certainly, sometimes in angry disagreement). He knew all about bringing in the clicks and hits. A man for our time.

Provincialism’s Easy Allure Or, Writing Outward From The American Academy

In The Reactionary Mind, Corey Robin writes,

As sophisticated as the recent literature about conservatism is, however it suffers from three weaknesses. The first is a lack of comparative perspective. Scholars of the American right rarely examine the movement in relation to its European counterpart. Indeed, among many writers it seems to be an article of faith that, like all things American, conservatism is exceptional.

Robin then goes on to point out continuities between American and European conservatism before going to to provide a rich intellectual history of conservatism, one that aims to show it to be a dynamic force of reaction and counter-revolution through the ages, one implacably opposed, not to change per se, but to a change in the hierarchies of political ordering and power.

My intention here is not to dispute or examine this analysis; for that we have a faculty study group at Brooklyn College. Rather I was struck, as I read Robin’s listing of weaknesses in recent scholarship on conservatism, by the presence of a similar lack of comparative perspective in Robin’s work, by its only-partial expansion of the analytical lens to focus on American and European conservatism alone. From the taxonomy constructed above, it would appear that conservatism as a political entity, an intellectual movement or body of work, or as force of reaction and counter-revolution is confined to Europe and the United States. To be sure, its impress might be felt elsewhere–after all, the counter-revolutionary governments of the United States and Europe have acted to resist revolution in Asia, Africa and Latin America–but as a political and intellectual force it originates in those spheres alone. (The index of authors in Robin’s work does not list African, Latin American or Asian conservative political theorists, or polemicists.)

Now, conservatism as reaction does not appear to be confined to these spheres; the long, bitter, disputed histories of these continents is ample evidence for that claim; reaction here, must have found its grounding too, in patterns of thought and theory articulated by, among others, intellectuals, writers, journalists, and party hacks. (Here I am not identifying “conservatism” with a named political movement or party, but rather, in accordance with Robin’s thesis, as the forces of reaction that have resisted movements of resistance aimed at upending established hierarchies of order, using a variety of polemical, political and rhetorical strategies, including, most recently a genuine populism that seeks to include previously oppressed classes in the spoils of power.) Perhaps examining conservative thought more broadly–geographically speaking, at least–might have enabled an engagement with questions like: Are Mario Vargas Llosa and Olavo de Carvalho conservatives in Robin’s sense? Are the South African theoreticians of apartheid to be understood as conservative? Where do the theoreticians of the Indian caste system fit into a taxonomy of conservative thought? And so on.

In pointing this out, I am doing no more than indicating the blindingly obvious, and a scholar as accomplished as Robin would be the first to note this himself. (It might be that I missed in my reading, a stipulation that “conservatism” was to be understood as identifying a particularly Anglo-American-European ideology.)

Then why the lack of the “comparative perspective” in Robin’s work? Besides the straightforward one that one writes about what one knows best, I think the blind spot also exists for the same reason that in my recent book on legal theory I concentrated on American common law first, with European civil law a distant second, and do not investigate in any adequate sense, Latin American, African or Asian scholarship in the relevant domains: to write from the vantage point of the American academy is to all too easily take it to be the center of the academic and intellectual universe. This is not because one assumes a mantle of superiority but rather that that is the seat that we are pointed to, the position we assume, and it seems, are almost required to take ex-officio. In this tacit assumption of centrality, even the most allegedly cosmopolitan amongst us are reminded of the enduring and persistent allure of provincialism.

Artificial Agents and the Law: Legal Personhood in Good Time

The Concurring Opinions online symposium on A Legal Theory for Autonomous Artificial Agents is under way, and most respondents thus far are taking on the speculative portion of the book (where we suggest that legal personhood for autonomous artificial is philosophically and legally coherent and might be advanced in the future). The incremental arguments constructed in Chapters 2 and 3 for considering artificial agents as legal agents for the purposes of contracting and knowledge attribution have not yet been taken on. Sometimes, as a result, it has seemed that we are suggesting a far greater change to existing legal doctrines than the modest changes we actually do suggest. Those modest changes could, admittedly, go on to have widespread ramifications, but still, for the time being, that’s all we do.

I’m not surprised that most respondents to the book thus far have chosen to concentrate on the ‘sexier’ argument in Chapter 5. In any case, these comments are very thoughtful and are thought-provoking and as a result they have already resulted in some very interesting discussion. Indeed, some of the objections raised are going to require some very careful responses from my side.

Still, the concentration on the legal personhood aspect of the doctrine we suggest might result in one confusion being created: that in this book we are advocating personhood for artificial agents. Not just legal personhood, but in fact personhood tout court. This is especially ironic as we deliberately have chosen the most incremental changes in doctrine possible in keeping with law’s generally conservative treatment of proposed changes to legal doctrine.

Here is what we say in the introduction about the argument for legal personhood:

<start quote>

In Chapter 5, we explore the potential for according sophisticated artificial agents with legal personality. In order to provide a discursive framework, we distinguish between dependent and independent legal persons. We conclude that the conditions for each kind of legal personality could, in principle, be met by artificial agents in the right circumstances. [emphasis added] We suggest objections to such a status for them are based on a combination of human chauvinism and a misunderstanding of the notion of a legal person [more often than not, this is the conflation of “human” with “legal person”]. We note the result-oriented nature of the jurisprudence surrounding legal personality, and surmise legal personality for artificial agents will follow on their attaining a sufficiently rich and complex positioning within our network of social and economic relationships. The question of legal personality for artificial agents will be informed by a variety of pragmatic, philosophical and extra-legal concepts; philosophically unfounded chauvinism about human uniqueness should not and would not play a significant role in such deliberations.

<end quote>

The “result-oriented nature of the jurisprudence surrounding legal personality” is actually such as to suggest that artificial agents might even be considered legal persons for the purposes of contracting now. But for the time being, I think, we can get the same outcomes just by treating them as legal agents without personhood. Which is why we advocate that change first, and suggest we wait till they attain “a sufficiently rich and complex positioning within our network of social and economic relationships.”

Artificial Agents, Knowledge Attribution, and Privacy Violations

I am a subscriber to a mailing list dedicated to discussing the many legal, social, and economic issues that arise out of the increasing use of drones. Recently on the list, the discussion turned to the privacy implications of drones. I was asked whether the doctrines developed in my book A Legal Theory of Autonomous Artificial Agents were relevant to the privacy issues raised by drones. I wrote a brief reply on the list indicating  that yes, they are.  I am posting a brief excerpt from the book here to address that question more fully (for the full argument, please see Chapter 3 of the book):

Knowledge Attribution and Privacy Violations

The relationship between knowledge and legal regimes for privacy is straightforward: privacy laws place restrictions, inter alia, on what knowledge may be acquired, and how.  Of course, knowledge acquisition does not exhaust the range of privacy protections  afforded under modern legal systems. EU privacy law, for example, is triggered when mere processing of personal data is involved. Nevertheless acquisition of knowledge of  someone’s affairs, by human or automated means, crosses an important threshold with regards to privacy protection.

Privacy obligations are implicitly relevant to the attribution of knowledge held by agents to their principals in two ways: confidentiality obligations can restrict such attribution and horizontal information barriers such as medical privacy obligations can prevent corporations being fixed with collective knowledge for liability purposes.

Conversely, viewing artificial agents as legally recognized “knowers” of digitized personal information on behalf of their principals brings conceptual clarity in answering the question of when automated access to personal data amounts to a privacy violation.

The problem with devising legal protections against privacy violations by artificial agents is not that current statutory regimes are weak; it is that they have not been interpreted appropriately given the functionality of agents and the nature of modern internet-based communications. The first move in this regard is to regard artificial agents as legal agents
of their principals capable of information and knowledge acquisition.

A crucial disanalogy drawn between artificial and human agents plays a role in the denial that artificial agents’ access to personal data can constitute a privacy violation: the argument that the automated nature of artificial agents provides reassurance sensitive personal data is “untouched by human hands, unseen by human eyes.” The artificial agent becomes a convenient surrogate, one that by its automated nature neatly takes the burden of responsibility off the putative corporate or governmental offender. Here the intuition that “programs don’t know what your email is about” allows the principal to put up an “automation screen” between themselves and the programs deployed by them. For
instance, Google has sought to assuage concerns over possible violations of privacy in connection with scanning of Gmail email messages by pointing to the non-involvement of humans in the scanning process.

Similarly, the U.S. Government, in the 1995 Echelon case, responded to complaints about its monitoring of messages flowing through Harvard University’s computer network by stating no privacy interests had been violated because all the scanning had been carried out by programs.

This putative need for humans to access personal data before a privacy violation can occur underwrites such defenses.

Viewing, as we do, the programs engaged in such monitoring or surveillance as legal agents capable of knowledge acquisition denies the legitimacy of the Google and Echelon defenses. An agent that has acquired user’s personal data acquires functionality that makes possible the processing or onward disclosure of that data in such a way as to constitute privacy violations. (Indeed, the very functionality enabled by the access to such data is what would permit the claim to be made under our knowledge analysis conditions that the agent in question knows a user’s personal data.)

Artificial Agents and the Law: Some Preliminary Considerations

As I noted here last week, the Concurring Opinions blog will be hosting an online symposium on my book A Legal Theory for Autonomous Artificial Agents. There has already been some discussion over at the blog; I’m hoping that once the book has been read and its actual arguments engaged with, we can have a more substantive discussion.

Last week, I spoke on the book at Bard College, to a mixed audience of philosophy, computer science, and cognitive science faculty and students. The question-and-answer session was quite lively and our conversations continued over dinner later.  Some of the questions that were directed at me are quite familiar to me by now: Why make any change in the legal status of artificial agents? That is, why elevate them from non-entities in the ontology of the law to the status of legal agents, or beyond? When it comes to assigning responsibility, why not simply make the designers or deployers of agents responsible for all acts of the artificial agents?  How can an artificial agent, which lacks the supposedly distinctively-human characteristics of <insert consciousness, free-will, rationality, autonomy, subjectivity, phenomenal experience here> ever be considered an “agent” or a “person”? Aren’t you abusing language when you say that a program or a robot can be attributed knowledge? How can those kinds of things ever “know” anything? Who is doing the knowing?  

I’ll be addressing questions like these (I’m reasonably sure of that) over at the online symposium, which starts tomorrow. For the time being, I’d like to make a couple of general remarks. 

The modest changes in legal doctrine proposed in our book are largely driven by two considerations. 

First, existent legal doctrine, in a couple of domains, most especially contracting, which kicks off our discussion and serves as the foundations for the eventual development of the book’s thesis, is placed under considerable strain by its current treatment of highly sophisticated artificial agents. We could maintain current contracting doctrines as is but run the risk of increasing the implausibility of that doctrine. This might be seen as a reasonable price to pay so that we can maintain our intuitions about the kinds of beings we take artificial agents to be. I’d suggest this kind of retention of intuitions starts to become increasingly untenable when we see the disparateness in the entities that are placed in the same legal category. (Are autonomous robots really just the same as tools like hammers?)   

Second, a change in a  legal doctrine can sometimes bring about better outcomes for us. One of the crucial arguments in our Chapter 2, (one I really hope readers engage with) is an assessment in the economic dimension of electronic contracting by artificial agents considered as legal agents. I share the skepticism of those in the legal academy that economic analysis of law not drive all doctrinal changes but in this case, I’d suggest the risk allocation does work out better. But I think an even stronger argument can be made when it comes to privacy. In Chapter 3, the dimissal of the Google defense (“if humans don’t read your email, your privacy is not violated”) is enabled precisely by treating artificial agents as legal  agents.

Much more on this in the next few days.