United States v. AI

Susan Fonseca-Klein, J.D.

Page 4 of 5

VII. The Law

“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused man to make laws in the first place.” Frederic Bastiat, The Law (1850)

A threshold question that must be addressed when analyzing the legal rights of an AGI is whether the U.S. Constitution in fact protects such an “entity.”

Certainly the framers of the U.S. Constitution did not envision a time when technological innovation and science would advance to the point of an artificial intelligence claiming equal rights under the law. However, an argument can (and has been) made over the years that equal protection for slaves, women, minorities, animals, the environment and corporations was not specifically enumerated either, yet each group today receives federal protection.

An equally important question for AGI-litigant is the issue of standing. Standing is the ability or right of a party to address its grievances before a court.[1] Any legal analysis related to AGI-plaintiff will therefore require a showing that AGI has standing to sue. Ultimately “standing” will depend on a court’s interpretation of federal law and congressional intent. Should a court find standing has in fact been created in favor of an intelligent machine, AGI will have the right to freely pursue its claim in court.

The issue is, in the absence of legislative authority, can a federal court nonetheless consider AGI’s claim? Should a court apply equity in this situation?

Moreover, if neither the U.S. Constitution nor congressional regulations apply to AGI, what legal protection is available to AGI? Similarly, what legal recourse would society have against AGI?

Finally, is federal law even relevant when AGI will be a world-wide phenomenon? That is, can U.S. law restrict and/or grant legal rights to AGI without recognizing that AGI’s basic “human rights” should apply across all nations?

Today, organizations such as Terasem Movement, Inc. and The Immortality Institute are looking into these questions.[2]

A. Legal rights for AGI?

Dr. Martine Rothblatt is one of the pioneers taking an active role in researching and addressing the legal rights of AI and transhuman persons. In 2003, at the International Bar Association’s annual meeting, Dr. Rothblatt defended the legal rights of an AI called BINA48 during a Mock Trial presentation.[3] Relevant discussions centered on the issues of standing, anti-slavery laws and equal protection.[4]

As such, what can we say today about legal rights for AGI? Unimaginable benefits, as well as catastrophic dangers await humanity with the onset of the first greater-than-human-intelligent being. However, a strong argument can be made that AGI lacks standing within the current legal system to assert any claim as a citizen, person, or legal entity. Moreover, AGI constitutional recognition has not yet been asserted or raised in court; thus, no specific judicial precedent has been established.

Federal statutes whereby AGI could potentially invoke legal status and protection are likewise non-existent. In fact, under any type of legal analysis (be it constitutional, common law, statutory or regulatory), AGI would not be recognized as anything other than perhaps “property.”

Property however can be a starting point for judges when confronted with the question of legal rights for AGI. Slaves, for instance, were once considered “property” until passage of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution.

The first AGI-Plaintiff will nonetheless have to overcome more than the perception and status that it is only chattel. The first AGI litigant will have to prove it is “alive,” i.e., a conscious entity deserving and entitled to legal protection equal to that of its biological contemporaries. Thus, unlike human individuals once considered property or slaves because of the color of their skin, the AGI will have to overcome society’s general bias and fear against all things different and, in this case intellectually superior, and convince humanity to apply equal protection under the law to a non-biological/non-human entity.

First, the AGI will have to persuade the court that it is more than just a “smart program.” An AGI-plaintiff or defendant will have to prove through empirical evidence the sentience entitling it to legal protection equal to that of its human creator. In addition, AGI must convince the human fact-finder that it has suffered a grievance and is entitled to legal reparation – and must do so by facing not a jury of its peers, as presumably no other AI will be on the original jury panel, but a biological panel unprepared for and most likely inexperienced in the field of AI. Moreover, standards applied in court for finding legal status as to a particular AGI, may or may not apply across the board to all AI’s seeking legal protection. Enforcement and oversight may create a problem and unreasonable burden for the court and government officers. AGI will find it has the additional burden of demonstrating that legal status is appropriate in the instant case and not a slippery slope with conflicting and unintended consequences.

In summary, the first AGI to assert legal rights in court will have the arduous task of convincing the court and society at large that, despite its non-biological make-up, it is equally deserving of legal protection. Judges will face a matter of first impression having world-wide impact.

Surely, however, biological heritage is not the test for granting legal status. Corporations, for example, enjoy certain privileges under the law. However, corporations have limited legal status and are, in effect, an outward representation of collective human operation and ideas. An AGI, on the other hand, will most likely claim the full spectrum of legal status as it will be intellectually equal/superior to its biological creators and function as a separate, distinct and unique being.

Should AGI succeed in its argument of legal status, what then?

AGI goes to court…

Federal courts are courts of limited jurisdiction, which means they have authority over proceedings specifically bestowed by the Constitution and Congress.[5] State courts, on the other hand, have general jurisdiction and can address a wide variety of lawsuits. While an initial question for AGI-plaintiff will be whether to sue in state or federal court, for purposes of this article, the federal court system will be explored.

Under Rule 17(b) of the Federal Rules of Civil Procedure, the capacity of an individual to sue or be sued is determined by the law of the individual’s domicile, for a corporation, by the law under which it was organized and in all other cases (unless an exception applies), the capacity to sue or be sued is determined by the law of the state where the court is located.[6]The term “individual,” however, has not been interpreted to include an intelligent machine. Similarly, no state has authorized an entity other than a person, corporation or represented party the “capacity” to sue.

Aside from the legal requirement that a party must have capacity to sue, the litigant must also (as explained above) demonstrate it has a legal right to have the court adjudicate its claim.[7] Thus, for an AGI-plaintiff to access the federal court system, it must prove it has standing to sue and must do so by satisfying three constitutional requirements:

• That it has suffered a particularized, concrete injury to a legally protected interest (injury in fact);
• That the injury is fairly traceable to the challenged action (causation); and
• That it is likely that the injury may be redressed by judicial action (redressability).[8]

The U.S. Supreme Court has stated that the injury cannot be “conjectural” or “hypothetical.”[9] It must be an “actual or imminent” injury of a “legally protected right.”[10] Moreover, that “[t]he party invoking federal jurisdiction bears the burden of establishing these elements.”[11]

For AGI, a most difficult threshold test will be proving that is has a legally protected interest. Evenbefore AGI can demonstrate its legal prowess by articulating amazing legalese, it must first overcome procedural hurdles of standing.

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Footnotes

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