Confronting the Singularity: A Legal Framework for Injury Caused

by Artificial Intelligence

Kelley M. Scott

Emerging Technologies

Fall 2016

1
 A. Abstract

Emerging technology in the sphere of artificial intelligence is not just an

important topic; it is arguably the most important topic as it relates to the

future of mankind. This paper will examine historical advances in human

technological evolution in the context of the exponential computational

growth of the last 40 years. It will posit a framework for the regulation of

artificial computational agents, namely, artificial intelligence systems. It will

seek to explore the legal culpability of different classes of human-AI

interactions, starting at the programmer level, ascending to the procurers or

manufacturers, and eventually examining end user-level legal liability. Both

narrow artificial intelligence (ANI) as well as more robust computational

systems (AGI/ASI) will also be investigated. In each of the classes of users, we

will question whether a negligence or strict liability standard for harm is

appropriate. Under these preconditions, we will also examine whether such a

standard is appropriate when applied to ANI and AGI/ASI respectively.

Finally, this paper will seek to use the fundamental concepts of autonomy,

agency, causation, intentionalism, and liability to look at the future of artificial

intelligence and competing theories of liability as we approach what many

scientists have labeled the singularity: a point in human technological

development in which artificial intelligence will surpass our own.

2
 B. Defining Artificial Intelligence

Emerging artificial intelligence technologies have changed attitudes

towards the intellect, which was long considered to be a feature exclusively

belonging to biological beings, i.e. homo sapiens.1 The concept of artificial

intelligence first emerged in 19562. At that point in human development, the

delineation between biological intelligence and artificial intelligence was

unclear3, as humanity lacked complex AI systems. However, a theoretical

framework surfaced that examined the theory that intellect may be more than

an inherent feature of a biological being, i.e. [and questioned] whether it can

be artificially created.4 This basis defined artificial intelligence as the factor

of a thinking human being may possess [and examined it] in terms

ofrational behavior, [defining artificial intelligence as both] (i) systems that

think and act like a human being; (ii) systems that think and act rationally.5

It is clear from these factors that artificial intelligence differs from ordinary

computer science. The algorithms that make up artificial intelligence systems

are able to train themselves ([and] store their personal experience), and this

unique feature enables AI to act differently in the same situations, depending

1
Cerka P, et al., Liability for damages caused by artificial intelligence, Computer Law &
Security Review (2015) at 1.
2 Vardi, M. Artificial Intelligence: Past and Future. Communications of the ACM, Vol.
55 No. 1, 2012 at 5. The term artificial intelligence was coined by John McCarthy. He
complained as soon as it works, no one calls it artificial intelligence anymore.
3
It is arguable that this is still unclear.
4
Cerka P, et al., Liability for damages caused by artificial intelligence, Computer Law &
Security Review (2015) at 1.
5
Id.

3
on the actions previously performed.6 Based on this context, an inquisition

into legal liability for injury caused by machine learning began as early as

1987.7 It was soon postulated that legal standards would be developed by the

early 2000s8. Yet, 29 years later, our system of jurisprudence has failed to

settle expectations regarding artificial intelligence and its interaction with the

law.

Defining artificial intelligence is an important first step in exploring the

best choice of liability standards to hold it to. Human beings are often

confused when confronted with the term AI, as they associate the term with

science fiction or futuristic technologies. AI is also an exceedingly broad topic,

encompassing not only self-driving vehicles, but also calculators, phones, and

countless other embodiments. Given that we use artificial intelligence all the

time in our daily lives, it is difficult to imagine it causing harm. In fact, many

people who discuss artificial intelligence in the current state of advancement

look forward to the singularity, or the point in which artificial intelligence

surpasses our own9. However, definition of artificial intelligence must be done

at this point based on its capabilities rather than its purpose. Most scholars

have accepted three categories of AI capability10: Artificial narrow intelligence

6
Id.
7
Steven J. Frank, Tort Adjudication and the Emergence of Artificial Intelligence
Software, 21 Suffolk U. L. Rev. 623 (1987).
8
Cole, G., Tort Liability for Artificial Intelligence and Expert Systems, 10 Computer L.J.
127 (1990).
9
Vinge, Vernor. "The coming technological singularity: How to survive in the post-
human era." (1993).
10 Urban, T. The AI Revolution: The Road to Superintelligence. WBW Press, 2015.

4
(ANI), artificial general intelligence (AGI), and artificial superintelligence

(ASI).

ANI is known as weak AI. It is artificial intelligence developed for a

narrow task and is specialized to perform well in a single area. All existing

artificial intelligence systems at this time are considered to be ANI or weak

artificial intelligence. ANI systems operate within a constricted, pre-defined

range without the application of genuine intelligence or self-awareness.

Examples of ANI include IBMs Deep Blue or Matthew Lais Giraffe chess

machine learning systems, Apples Siri, or robotics used in manufacturing

processes. Weak artificial intelligence systems may appear very intelligent, but

their narrow application is clear when they are asked to perform any function

outside the limited parameters for which they were originally programmed.

Weak AI is accurate and useful under these limited parameters, but cannot

transcend the basic purpose for which it was originally created.

Weak artificial intelligence may still pose a threat to human beings or

infrastructure. A pre-singularity artificial intelligence accident has been

suggested11 to be containable, but may cause personal or infrastructural

damage at frightening speed. This is in large part due to our reliance on

narrow AI to perform many automated functions inherently necessary to the

function of our post-industrial society. Indeed, [n]arrow AI could knock out

our electric grid, damage nuclear power plants, cause a global-scale economic

11
Dvorsky, G. How much longer before our first AI catastrophe? i09.com, published
April 1, 2013, retrieved December 21, 2016.

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collapse12, misdirect autonomous vehicles and robots, take control of a factory

or military installation, or unleash some kind of propagating blight that will

be difficult to get rid of (whether in the digital realm or the real world).13

These types of threats will be the subject of later discussion regarding liability

standards for AI generally. In the current state of technological development,

ANI pervades most newly manufactured vehicles, smart phones and

computers, cloud computing systems and email, military systems, finance,

and even the medical and legal fields.14 In large part due to its pervasiveness,

either intentionally hijacked or unintentionally buggy or badly programmed

ANI programs could cause major, but not existential, injury.

AGI is categorized as strong or general artificial intelligence. It is also

known as human-level artificial intelligence by some experts, and has been

described as a very general mental capability that, among other things,

involves the ability to reason, plan, solve problems, think abstractly,

comprehend complex ideas, learn quickly, and learn from experience. 15

Artificial general intelligence is the cognitive technology that constituted the

original focus of AI researchers. Ironically, due to the unanticipated difficulty

of developing AGI, much of the research since the late 1980s has been

12
See e.g. Lauricella, Tom (May 7, 2010). "Market Plunge Baffles Wall StreetTrading
Glitch Suspected in 'Mayhem' as Dow Falls Nearly 1,000, Then Bounces". The Wall
Street Journal.
13
Dvorsky, G. How much longer before our first AI catastrophe? i09.com, published
April 1, 2013, retrieved December 21, 2016.
14
IBMs Watson program is a good example of a foray into these traditional and
venerated fields.
15
Gottfredson, Linda S., Mainstream science on intelligence: An editorial with 52
signatories, history, and bibliography. Intelligence, 24(1), 1323. 1997.

6
primarily focused on ANI. However, many leading scholars believe that

artificial general intelligence is merely an engineering problem 16, and its

advent is soon forthcoming.

Some of the earliest ventures into AGI include Alan Newells SOAR

project initiated in 1983 and Doug Lenats CYC program initiated in 1987. The

CYC program attempted to create true AGI by by encoding all common sense

knowledge in first-order predicate logic17 The program continues to develop

to this day, and has been successful in creating a powerful database and

inference engine. However, it has failed to create an autonomous, creative

interactive intelligence18, which is necessary for true AGI. Similarly, the

SOAR project attempted to build Unified Theories of Cognition, based on

ideas that have now become fairly standard: logic-style knowledge

representation, mental activity as problem-solving carried out by an

assemblage of heuristics.19 More recent forays into AGI have used a more

synergistic approach, often incorporating the vast database of the internet, but

have failed to create true general intelligence, as defined as [the] ability to

acquire and apply knowledge, and to reason and think, in a variety of

domains.

This begs the question: How would we recognize the creation of true

AGI? Measuring AGI often turns to the well-known Turing test. The test is

16
Goertzel, B. Artificial General Intelligence. Springer Publishing, 2007 at 1-2.
17
Id at 3.
18
Id.
19
Id at 27.

7
defined loosely as a test that asks an AI program to simulate a human in a

text-based conversational interchange. The most important point about the

Turing testis that it is a sufficient but not necessary criterion for artificial

general intelligence.20

Importantly, traditional, narrow AI plays a key role in the provision of

useful examples, inspiration, and ideally, results for AGI. Narrow ANI

requirements such as logic, neural networks, and evolutionary computing

provide the necessary tools and framework, or at least inspiration for key

components of AGI. Increasing computational power and interfacing

computational grids such as local area, wide-area, and Internet connected

models will also help to provide positive interactive informational models for

developing AGI.

Finally, we must define artificial superintelligence (ASI) or as some

have called it, the singularity. Nick Bostrom defines superintelligence as an

intellect that is much smarter than the best human brains in practically every

field, including scientific creativity, general wisdom and social skills.21 ASI

may range from a computer that just barely surpasses human intelligence to

one that is more intelligent than the most intelligent human being by factorial

levels. Importantly, ASI will not only entail intelligence that is quantitatively

faster than the human mind, but also intelligence that is more advanced in

quality of information obtained. This distinction is minute but important.

20
Id at 28.
21
Bostrom, N. How long before superintelligence? Linguistic and Philosophical
Investigations, 2006, Vol. 5, No. 1, pp. 11-30.

8
 Two major developments are necessary for the advent of AGI/ASI: first,

we must reach the required computational power, and second, we must

formulate the requisite model in order to emulate the human brain, or

something very near to. Kurzweil has estimated that the required

computational level for human-level intelligence is 10 quadrillion

computations per second (cps). To put this in perspective, the worlds fastest

supercomputer, the Chinese Tianhe-2, has already clocked in a 34 quadrillion

cps. However, with the cost of this type of computing power, it is more

realistic that human technological development will reach the level of

affordability to create holistic AGI computational technology by 202522.

Second, solving the modeling requirement for AGI/ASI is a necessary

step to its creation. There are three common strategies to modeling AGI/ASI

systems: copying the human brain, creating self-evolving genetic algorithms

to model an AGI/ASI system for us, or, even more ambitious, to design a ANI

computer program or system with the sole purpose of doing research on and

coding an AGI/ASI system. Once AGI has been reached, it is inevitable under

the Law of Accelerating Returns that ASI will follow quickly behind.

Both AGI and ASI, as compared to ANI, have vast liability implications.

Artificial general intelligence has the ability to not only be used by a human

actor to cause injury or damage to human beings or infrastructure, but also

has the independent ability to decide to engage in behaviors that could cause

harm. The liability implications for AGI or ASI include all those liability

22
Kurzweil at 118.

9
problems that have faced courts as a result of human actors. However, they

also include new liability implications, the foremost of which is this: when

AGI or ASI engages in behavior that causes injury, who do we hold

accountable? The creator? The manufacturer? The user? These issues among

others will be examined infra. Furthermore, some have posited that ASI may

bring about catastrophic changes to our society, including the potential for the

extinction of the human race. Differentiation between benign ASI and

malevolent ASI is important, but will not be examined in detail herein.

C. AI as an Emerging Technological and Legal Issue

It is important to demarcate why it is imperative at this juncture in

human technological evolution that human beings create a framework for

liability for injury caused by artificial intelligence. The idea that humanity

could at some point develop machines that could autonomously think has

been part of the cultural zeitgeist since the earliest days of our civilization. 23

However, the possibility of actually achieving artificial intelligence is a

relatively new concept. Nevertheless, the advent of narrow yet advanced

artificial intelligence is already upon us, and the technology already influences

our day-to-day interactions with one another. Futurist Ray Kurzweil describes

a concept in human history known as the Law of Accelerating Returns. This

law explains why human development expanded slowly in the post-

23
McCorduck, Pamela. Machines Who Think: A Personal Inquiry Into the History and
Prospects of Artificial Intelligence, at 23-24 (2004).

10
Agricultural Revolutionary period24, but has expanded much more rapidly in

the wake of the Industrial Revolution. The Law explains that more advanced

societies have the ability to progress at a much quicker rate simply because

they are more advanced.

This concept may be facially simple, but it explains the current state of

progress in artificial intelligence and the need for a definitive framework for

legal liability to be established immediately. In fact, Kurzweil suggests that the

progress of the entire 20th Century was achieved in only 20 years, between

1980 and 2000. He believes another centurys worth of progress occurred

between 2000 and 2014, and another centurys worth will be achieved by

2021.25 It is clear that when we look at technological development generally,

and artificial intelligence specifically, we must look at development as non-

linear, and instead, as exponential. For this reason, the need for a liability

framework is strikingly clear; ANI technologies are already at hand, while AGI

and ASI technologies will likely arrive by 2045 by some estimates26. Other

estimates are even less conservative: The level of human knowledge doubled

during the period from 1750 to the twentieth century. And since 1965 the level

of human knowledge doubles every five years. According to some predictions,

the knowledge level shall double every 73 days, beginning in 2020.27

24
Around 12,000 BC.
25
Kurzweil, Ray. The Singularity is Near, at 39. Viking/MIT Press, 2005.
26
Id at 234.
27
Tolocka TR. Regulated mechanisms.. Technologija. 2008 at 111.

11
 Truly, [t]he prevalence of AI in society means that the more people use

AI, the greater the likelihood of various violations of law. Accordingly, AI

development and its ever-growing practical use require changes in legal

regulation, such as the need to restructure the legal system.28 If Artificial

Intelligence turns out as planned, i.e. a thinking human-like robot with

feelings and emotions, then the laws would need to be altered to encompass

the roles of robots in society.29

D. Historical Liability Standards

The goals of traditional tort liability are many: to reduce the possibility

of harm, to promote fundamental fairness, to make the victims of harm whole,

to provide a nonviolent and established means of dispute resolution, to fairly

allocate loss, to promote communal values that we as a society deem

important, and to allow for the smooth function of civilization. Rational

conduct by financially motivated actors also reduces harm by creating

incentives to engage in behavior that avoids it, to the extent that such

behaviors are not more costly than the alternatives. By creating a framework

for loss shifting from injured victims to tortfeasors, tort law deters unsafe

conduct.30 A purely financially motivated rational actor will reduce potentially

28
Richard C. Sherman, The Surge of Artificial Intelligence: Time To Re-examine
Ourselves. Implications: Why Create Artificial Intelligence?, (1998).
www.units.muohio.edu/psybersite/ accessed December 13, 2016.
29
Cerka P, et al., Liability for damages caused by artificial intelligence, Computer Law &
Security Review (2015) at 2.
30
See, e.g., Priest, G., Satisfying the Multiple Goals of Tort Law, 22 Val. U. L. Rev. 643,
648 (1988), also generally the classic case of United States v. Carroll Towing Co. 159
F.2d 169 (2d. Cir. 1947).

12
harmful activity to the extent that the cost of accidents exceeds the benefits of

the activity.31

In the context of emerging technology, however, it is important to

examine two specific frameworks for liability: traditional negligence and strict

liability. As there is no existing case law setting the criteria for injury caused

by artificial intelligence, an examination of both standards histories can shed

light on which is most appropriate32. Under a traditional negligence standard,

actions that cause injury intentionally, or without regard for established

reasonable norms of conduct create liability for said actions. Liability in this

case is based on what a hypothetical, objectively reasonable person would

have done in the same or similar situation.

The touchstone of reasonableness is a duty of care owed to the entity to

which harm has been caused. A cause of action based on negligence requires

proof of four elements. The defendant owes (1) a duty of care to the plaintiff

based upon a certain standard of conduct, which (2) has been breached, the

31
Abbott, R. Allocating Liability for Computer Generated Torts. Draft working paper,
2016.
32
It has been suggested that the only existing framework for legal liability exists under
customary international law: In the absence of direct legal regulation of AI, we can
apply article 12 of United Nations Convention on the Use of Electronic Communications
in International Contracts, which states that a person (whether a natural person or a legal
entity) on whose behalf a computer was programmed should ultimately be responsible for
any message generated by the machine. Such an interpretation complies with a general
rule that the principal of a tool is responsible for the results obtained by the use of that
tool since the tool has no independent volition of its own. So the concept of AI-as-Tool
arises in the context of AI liability issues, which means that in some cases vicarious and
strict liability is applicable for AI actions. Cerka P, et al., Liability for damages caused
by artificial intelligence, Computer Law & Security Review (2015) at

13
breach having (3) proximately caused (4) the injury complained of.33 However,

the concept of duty is a legal fiction; it does not mean that individual inquiry is

always done into the reasonable nature of the actions taken. To the contrary, it

calls for a a legal conclusion as to whether the plaintiff's unfortunate reliance

upon the defendant's prudence is compensable.34 Courts avoid the laymans

definition of reasonableness and causation. A fictitious straw man stands in the

place of the ordinary reasonable actor. Proximate or legal causation is also the

standard under a negligence inquiry rather than actual causation. A duty

generally will be held not to exist if the defendant could not reasonably foresee

injury being caused by his or her actions. That is to say, [i]n practice, for a

plaintiff to prevail in most personal injury cases he or she must prove by a

preponderance of evidence that the defendant owed the plaintiff a duty of

reasonable care, that the defendant breached that duty, that the breach caused

the plaintiffs damages, and that the plaintiff suffered compensable damages. 35

In the context of artificial intelligence, foreseeability becomes a major

concern in determining liability. Currently, no case law exists governing legal

foreseeability of the actions taken by artificial intelligence, whether it be ANI,

AGI, or ASI-based. Furthermore, under current conditions, it is impossible to

predict the behavior of many AI systems, and thus impossible to imagine the

33
W. Prosser & W. Keeton, Handbook On The Law Of Torts 76 N.1 (5th Ed. 1984) at
358.
34
Id.
35
Abbott, R. Allocating Liability for Computer Generated Torts. Draft working paper,
2016 at 12.

14
conditions necessary to prove proximate or legal causation for injury.36

Furthermore, the far-reaching scale of deployment of current artificial

intelligence systems creates problems of the foreseeability of not only the

possibility for injury, but also the possible plaintiff37. This brings us to the second

traditional liability framework we will examine: strict or absolute liability.

Strict liability does not depend on actual negligence or intent to harm

but is based on the breach of an absolute duty to make something safe. In

other words, strict liability is liability without fault.38 Strict liability for

tortuous conduct has been famously applied to the ownership of wild animals, or

ferae animae. At common law, wild animals are considered by their very nature

dangerous. However, they are also not automatically considered to be under the

control of anyone absent specific circumstances. This well-established rule holds

true to this day: [W]ild animals exist throughout nature, they are generally

not predictable or controllable, and therefore, without more, they are neither

the property nor the responsibility of the owner or occupier of land on which

they are found.39

36
[U]nlike traditional engineering and design, the actual functioning of an autonomous
artificial agent is not necessarily predictable in the same way as most engineered systems.
Some artificial agents may be unpredictable in principle, and many will be unpredictable
in practice. Predictability is critical to current legal approaches to liability. Asaro, P. The
Liability Problem for Autonomous Artificial Agents. 2015 at 2. This author would argue
that ANI and AGI/ASI have differences in whether actions are foreseeable. See supra.
37
See classically Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99
(1928).
38
Black's Law Dictionary, 8th ed. 2004.
39
Union Pacific Railroad Company v. Nami, 2016 WL 3536842 (Tex. June 24, 2016),
see also generally 3:50.Wild animalsDoctrine of animals ferae naturae, 1 Tex. Prac.
Guide Torts 3:50

15
 To establish strict liability under common law standards, it must be

shown that the defendant tamed, confined, or otherwise controlled the wild

animal. Unless a person asserts dominion over animals, or reduces them to

possession, that person is not liable for their actions.40 However, if one has the

requisite control over an animal that is considered wild, no precaution,

however stringent, will be sufficient to escape liability if said animal causes

injury to another; [a] landowner can be held strictly liable for the acts of

animals ferae naturae, that is, wild animals, against invitees on the owner's

landsif the landowner has reduced the animal to his or her possession and

control or introduced a nonindigenous animal into the area.41

Strict liability has also, and most commonly been applied to either

ultrahazardous activities or in products-liability claims.42 The origin of strict

liability for such activities derives from the English common law case of

Fletcher v. Rylands, 159 Eng. Rep. 737 (1865), reversed, Fletcher v. Rylands, 1

L.R.-Ex. 265 (1866), affirmed, Rylands v. Fletcher, 3 L.R.-E. & I. App. at 330.,

which examined a remarkably simple set of facts:

Defendant mill owners constructed a reservoir upon their land.

The water broke through into the disused and filled-up shaft of
an abandoned coal mine, and flooded along connecting passages
into the adjoining mine of the plaintiff. The actual work was
performed by independent contractors, who were likely
negligent, but prevailing legal doctrine requiring privity
presumably precluded any direct cause of action by the plaintiff
against the contractors. The arbitrator who stated the case found
that the defendants themselves were ignorant of the existence of

40
See Glave v. Michigan Terminix Co., 159 Mich. App. 537, 407 N.W.2d 36 (1987).
41
Nicholson v. Smith, 986 S.W.2d 54, 60 (Tex. App. - San Antonio 1999).
42
Baldwin's Oh. Prac. Tort L. 28:1 (2d ed.)

16
 the old coal workings and, therefore, were not negligent
themselves. Moreover, the facts did not quite fit into the existing
tort pigeonholes: there was no trespass because the damage from
flooding was indirect and consequential, as opposed to direct and
immediate,7 and there was no nuisance, absent evidence of
something hurtful or injurious to the senses or of damage of a
continuous or recurring nature.43

The Restatement Second of Tort Law defines strict liability for

such activities in sections 519 and 520:

Section 519. General Principles

(1) One who carries on an abnormally dangerous activity is subject to liability

for harm to the person, land or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent such harm.

(2) This strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.

Section 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following

factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or
chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

43
Gerald W. Boston, Strict Liability for Abnormally Dangerous Activity: The
Negligence Barrier, 36 San Diego L. Rev. 597 (1999)

17
(f) extent to which its value to the community is outweighed by its dangerous
attributes.
When examining these requisite prongs in the context of

artificial intelligence, one must first accept that AI is inherently

dangerous. Given the possibility of harm both subtle44 and catastrophic

due to failures of both ANI45 as well as AGI/ASI, it is clear that such

technology contains significant inherent risks. Thus, we look to Section

520. Requirement a) is satisfied under our acceptance of the

satisfaction of Section 519. Furthermore, the likelihood of significant

harm if harm does occur, lack of accepted safeguards for use of AI, and

novel nature of AI utilization will satisfy prongs b)-d). Section e) is

inapplicable, since AI has the ability to reach anywhere a computer or

44
In one slightly humorous example, the United States District Court for the Eastern
District of Missouri ruled that the use of a computer program to simulate human
interaction could give rise to liability for fraud. In re Ashley Madison Customer Data Sec.
Breach Litig., 148 F. Supp. 3d 1378, 1380 (JPML 2015). Among the claims related to a
data breach on the infamous Ashley Madison online dating website in 2015 that resulted
in mass dissemination of user information, were allegations that defendants were
engaging in deceptive and fraudulent conduct by creating fake computer hosts or
bots, which were programmed to generate and send messages to male members under
the guise that they were real women, and inducing users to make purchases on the
website. It is estimated that as many as 80% of initial purchases on the websitemillions
of individual transactionswere conducted by a user communicating with a bot
operating as part of Ashley Madisons automated sales force for the website. Quinn, E.
Artificial Intelligence Litigation: Can the Law Keep Pace with The Rise of the
Machines? Accessed December 14, 2016.
45
For less humorous examples, see the 2010 Flash Crash discussed supra. See also Payne
v. ABB Flexible Automation, Inc., 116 F.3d 480, No. 96-2248, 1997 WL 311586, *1-*2
(8th Cir. 1997) (per curiam) (unpublished table decision); Hills v. Fanuc Robotics Am.,
Inc., No. 04-2659, 2010 WL 890223, *1, *4 (E.D. La. 2010); Bynum v. ESAB Grp., Inc.,
651 N.W.2d 383, 384-85 (Mich. 2002) (per curiam); Owens v. Water Gremlin Co., 605
N.W.2d 733 (Minn. 2000), also cited in the above article.

18
internet connection exists. Finally, we can also accept without much

argument that f) is satisfied. The inherent value of AI will be discussed

further below.

Using the model of ANI, AGI, and/or ASI as a wild animal, one that

fundamentally has been subject to the control of a human being, a strict

liability standard seems to be most appropriate46. Alternatively, holding those

who use AI to strict liability for use of ultrahazardous materials is also

arguably an apt standard of liability under Sections 519-520 of the Second

Restatement. However, it is important to make several key distinctions

between both the person(s) who control our hypothetical artificial intelligence

system, as well as the level of AI that hypothetically has caused harm prior to

concluding our inquiry.

46
Other scholars disagree: Strict liability goes further and designates or stipulates a
party, usually the manufacturer or owner, as strictly liable for any damages caused. This
model of liability applies to such things as the keeping of wild animals. It is expected that
tigers will harm people if they get free, so as the keeper of a tiger you are strictly liable
for any and all damages the tiger may cause. We apply normal property liability to
domesticated animals, however, which we expect to not harm people under normal
circumstances. It has been suggested that we could apply this to robotics and perhaps
designate certain advanced AIs as essentially wild animals, and others as domesticated.
But then the question arises: How does one determine whether an advanced AI or robot is
appropriately domesticated, and stays that way? A designated liable person may not
know the extent to which the autonomous system is capable of changing itself once it is
activated. More problematic, however, is that a system of strict liability might result in
the slow adoption of beneficial AI technologies, as those who are strictly liable would
have a large and uncertain risk, and be less likely to produce or use the technology, or
soon go out of business. Asaro, P. The Liability Problem for Autonomous Artificial
Agents. 2015 at 5 (citations omitted). However, user-based and level-based criteria
developed herein is an attempt to address and mitigate some of these concerns.

19
 E. Liability Standards for ANI

To create an effective liability standard, it is important to first examine

whom we are holding accountable. In most circumstances, artificial narrow

intelligence has three classifications of people who interact with it: the

creators or programmers, manufacturers or procurers, and the end-users.

Each of these classes should be held to a different liability standard. For

creators or programmers, a standard of intent or negligence is the best

framework. Given the remoteness of this class of people from eventual injury,

it is important to hold them liable only for those injuries that are intentional

or foreseeable. Furthermore, a more lax standard of liability will avoid a

chilling effect on those who seek to advance AI technology on this important

level.

For manufacturers or procurers, the story is much different. Given that

this class of AI users will be making said technology available en masse, a

strict liability standard is most apt. Manufacturers of narrow artificial

intelligence do so in order to profit from said technology. They will, in large

part, be corporations. Thus, they represent the best-cost absorber should the

technology that they make available cause harm to others. Furthermore,

manufacturers are in the best position to engage in behaviors that are

designed to avoid injury. Holding manufacturers or procurers to a strict

liability standard will therefore promote safety as new narrow artificial

intelligence technologies become available to the public at large. Truly, in the

context of narrow AI, most [problems with] strict liability [disappear] where

20
the manufacturer has the opportunity and the ability to predict or constrain

the set of possible inputs, i.e., where the task-language is rigidly delimited47

with the objective of achieving narrow goals.

Alternatively, holding manufacturers strictly liable may create negative

incentives to develop new AI technologies. Despite the potential for harm, in

many cases autonomous narrow AI implementations may actually improve

safety. The most direct example of phenomenon is the current application of

narrow AI to self-driving vehicles. According to recent statistics, 94 percent of

crashes involve human error, contributing to around 35,000 fatalities a year at a

cost of about $242 billion.48 Direct49 and anecdotal50 evidence suggests that

removal of human error would result in significantly less motor vehicle accidents.

In this context, holding manufacturers of said vehicles strictly liable when

accidents occur seems illogical. In addition, the same concerns exist on a

manufacturer level regarding the chilling of development, as funding for new

technology will likely come from those who seek to use it commercially.

47
Cole, G., Tort Liability for Artificial Intelligence and Expert Systems, 10 Computer
L.J. 127 (1990)
48
US Department of Transportation, FEDERAL AUTOMATED VEHICLES POLICY:
ACCELERATING THE NEXT REVOLUTION IN ROADWAY SAFETY 5, Sept.
2016, available at https://www.transportation.gov/AV/federal-automated- vehicles-
policy-september-2016. General statistics related to motor vehicle accidents are published
by the Insurance Institute for Highway Safety Highway Loss Data Institute, available at
http://www.iihs.org/iihs/topics/t/general- statistics/fatalityfacts/overview-of-fatality-facts.
Cited also in Abbott, R. Allocating Liability for Computer Generated Torts. Draft
working paper, 2016 at 5.
49
Michele Bertoncello and Dominik Wee, Ten Ways Autonomous Driving Could
Redefine the Automotive World, McKinsey & Co., June, 2015, available at
http://www.mckinsey.com/industries/automotive-and-assembly/our- insights/ten-ways-
autonomous-driving-could-redefine-the-automotive-world.
50
https://m.youtube.com/watch?v=G997UdhuhvQ

21
 The third category of users encompasses the end-user of ANI technology.

We return in this instance to the individual or small group of people who have no

involvement in the creation or manufacture of ANI. Thus, due to cost-shifting

issues, it is most appropriate to hold these end-users to an intentional or

negligence standard of liability. Intentional misuse or negligent operation of AI

should expose this class of people to liability, but there is no argument that strict

liability should apply. Furthermore, a more stringent standard would chill

adoption of new technologies, which is necessary for their continued

development.

F. Liability Standards for AGI/ASI

AGI/ASI present another problem: [a]utonomous artificial agents can

act in the world independently of their designers, [manufacturers], or

operators. This makes it difficult to identify the user or operator, who would

normally be liable. In the case of learning systems, the causal influence

resulting in the unpredictability of a system stems from the datasets used for

learning, not a legally responsible agent. In laymans terms, AGI/ASI will not

cause harm as a result of a human beings decision-making process; rather,

they will make independent decisions that may result in injury to a person.

There is a growing sense of concern over the development of

increasingly autonomous non-human agentsin the public and the media, as

well as among policy makers and researchers. Such concerns are not

unprecedented, yet there is something different about this next wave of

technological innovation and change. While the impacts of the adoption of any

22
technology are in some sense uncertain, and result in many and various

unintended consequences, there seems to be something particularly unsettling

and deeply uncertain about increasingly autonomous technologies. I believe

that this sense of concern stems from the recognition that autonomous

systems will not only be unpredictable in terms of their unintended actions

and general effects on society, but that they may also be out of control, in the

sense that these effects will occur beyond the scope of human responsibility.51

This statement is uniquely true as it applies to AGI/ASI, and thus, any legal

framework for these emerging technologies will differ from traditional legal

precedents. Thus, it is impossible to predict how courts may hold non-human

actors liable for damages that they cause. However, the creator/manufacturer

analysis under the guise of respondeat superior is one possible solution.

Holding the master liable for the independent actions of his or her servant,

despite the fact that said servant may be artificial in nature is a resolution

that has its basis in long-standing and accepted legal precedent, and would

allow settled expectations of those who choose to create or manufacture

AGI/ASI technologies.

F. Alternative Liability Standard Arguments

Although a potentially valid framework has been attempted herein,

there are concerns with strict liability or basic negligence standards as they

apply to artificial intelligence systems. As discussed in section D, there are

51 Asaro, P. The Liability Problem for Autonomous Artificial Agents. 2015 at 1.

23
three main cases where strict liability applies: (a) injuries by wild animals; (b)

products liability; (c) abnormally dangerous activities.

However, classification issues arise under traditional strict liability

analysis:

There are no grounds to equate AI to an animal because the

activities of AI are based on an algorithmic process similar to
rational human thinking and only partially similar to instincts
and senses like those of animals. It is presumed that AI can
understand the consequences of its actions and distinguish itself
from animals. This leads to the conclusion that we cannot apply
strict liability which would be applied in cases where the damage
is caused by an animal. Also in some cases it would be difficult to
apply the product liability case, because AI is a self-learning
system that learns from its experience and can take autonomous
decisions. Thus, for the plaintiff it would be difficult to prove an
AI product defect and especially that the defect existed when AI
left its manufacturer's or developer's hands. It is hard to believe
that it is possible to draw the line between damages resulting
from the AI will, i.e. derived from self-decision, and damages
resulting from product defect; unless we would equate the
independent decision-making (which is a distinctive AI feature)
with a defect.52

It may also be argued that that joint and several liability under a

negligence standard will satisfy the cost-shifting burden necessary to

compensate victims of artificial intelligence injury when machines and

humans share the decision-making burden53. In such circumstances: each

entity within a set of interrelated [entities] may be held jointly and severally

52
Cerka P, et al., Liability for damages caused by artificial intelligence, Computer Law &
Security Review (2015) at 11.
53
See generally, Richard W. Wright, The Logic and Fairness of Joint and Several
Liability, MEM. ST. UL REV. 23, 45 (1992).

24
liable for the actions of other entities that are part of the group 54. However,

this solution is not without its own disadvantages.55

Alternatively, some suggest that the common law negligence standard

is most proper for AI-generated torts56. Arguably, holding torts generated by

any type of artificial intelligence system to a negligence standard will in the

end produce the most just outcome. A more lax standard will hasten

development and adoption of automation where it is prudent to do so for

safety purposes. However, the disadvantage of such a system is that it will

create a disincentive for manufacturers to construct safe products. Furthermore,

as discussed above, manufactures may be better positioned than consumers to

insure against loss57, which is the purpose of a strict liability standard.

Nonetheless, since AI-based tortuous conduct is fundamentally different than

traditional products liability issues, perhaps once machines become safer than

54
Vladeck, D. Machines without Principals: Liability Rules and Artificial Intelligence.
Wash. L. Rev. 89 (2014): 117.
55
Existing forms of joint and several liability permit those harmed to seek monetary
damages from the deepest pockets among those parties sharing some portion of the
liability. This works well where there is a large corporation or government that is able to
pay damages. While the amount they pay is disproportionate to their contribution to the
damages, those harmed are more likely to be adequately compensated for their damages.
One result of this is that those manufacturers likely to bear the liability burden would
seek to limit the ability of consumers and users to modify, adapt or customize their
advanced AI and robotics products in order to retain greater control over how they are
used. This would stifle innovation coming from the hacking, open-source and DIY
communities. The hacking, open-source and DIY communities, while a powerful source
of innovation, will have limited means of compensating those who might be harmed from
their productsnot just those who chose to use them. Asaro, P. The Liability Problem
for Autonomous Artificial Agents. 2015 at 5
56
Abbott, R. Allocating Liability for Computer Generated Torts. Draft working paper,
2016.
57
Abbott, R. Allocating Liability for Computer Generated Torts. Draft working paper,
2016 at 20.

25
people, automation will result in net safety gains even taking this competing

incentive into account.58

G. Conclusion

Perhaps the causal agent for the current lack of a unified legal framework

for managing injuries caused by artificial intelligence stems is the uncertainty

surrounding the problem itself. As with much of legal evolution up to this point,

the most likely scenario is that the solution will assert itself as cases of injury

caused by AI become more commonplace. The inevitability of more common

acceptance and application of ANI, as well as the likely development of AGI/ASI

will force courts to mold solutions to the problems inherent in each individual

circumstance. Regardless, proper framing of user criteria and the level of

artificial intelligence responsible for harm will be an important part of how this

unique legal framework is developed. The criteria posited herein represents one

of many competing theories of how we as a society may choose to decipher our

complex relationship with machines that increasingly seem to emulate human

behavior in word and in action.

58
Id.

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