Author: Serena Malik
September 21, 2023
The exploration of legal responsibility in the context of artificial intelligence (AI) reveals a complex intersection of traditional legal concepts and emerging technological dimensions. Gabriel Hallevy's analysis forms a fundamental basis for considering potential legal frameworks for AI-generated offenses. However, a deeper examination underscores the need to harmonize well-established legal principles with the unique characteristics of AI systems.
1. Defining Intent in AI Systems:
Hallevy's classification of mens rea elements - knowledge, negligence, and strict liability - aligns with existing legal notions centered around the mental intent behind criminal acts. Nevertheless, applying these principles to AI requires a careful reevaluation. The absence of consciousness in AI necessitates a refined interpretation of mens rea within algorithms driven by data-based inferences, rather than conscious intent.
2. AI as an Indirect Actor:
Hallevy's idea of the "perpetrator-via-another" concept resonates when AI acts as an indirect actor. Drawing parallels to intellectually challenged individuals or sentient beings reflects AI's lack of cognitive awareness. Yet, this notion demands a redefinition of agency. Unlike human or animal agents, AI lacks inherent motives; it acts as a conduit for instructions embedded in its programming and data. This blurs the line between initiator and executor.
3. Unintended Consequences and the Natural-Probable-Consequence Model:
The "natural-probable-consequence" framework adds to the discussion the phenomenon of unintended criminal outcomes stemming from AI actions. The incident involving the Japanese automaton exemplifies how flawed logic in a mechanism can lead to fatal results. However, assigning legal responsibility requires unraveling complex causal connections. The AI's decision-making, shaped by its algorithms and training data, complicates the application of complicity principles.
4. Immediate Accountability for AI Entities:
Direct liability presents the challenge of attributing both actus reus and mens rea to AI entities. The deterministic nature of AI operations seems to simplify assigning actus reus. The complexity arises concerning mens rea—a mental state rooted in comprehending actions and their consequences. Consequently, applying strict liability to AI-induced actions depends on viewing AI as a latent tool without consciousness, rather than a liable entity.
5. Integrating Technical and Ethical Aspects:
Hallevy's work underscores the need for collaboration between legal and technical experts. The intricacies within AI's decision processes, its understanding of outcomes, and the ethical dimensions of holding non-sentient entities accountable emphasize the necessity of a fusion that transcends legal and technological domains. Responsibility extends to AI creators, programmers, operators, and users, all involved in AI-initiated actions.
In conclusion, Gabriel Hallevy's analysis offers a perspective for understanding the intricate challenge of AI's potential legal culpability. Balancing AI's unique attributes with established legal frameworks requires a shift that acknowledges AI's non-human nature while addressing broader societal and ethical implications. As AI continues to shape decision-making, legal structures must adapt alongside technological advancements to ensure calibrated accountability without impeding innovation's inevitable progress.
Reference
Hallevy, G. (2015). AI v. IP - Criminal liability for intellectual property IP offenses of artificial intelligence AI entities. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2691923
Glossary
[1] Mens rea: The intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused (Source: Oxford Dictionary).
[2] Cognitive awareness: Skills and mental abilities that control your actions and allow you to conduct complex tasks. Your cognitive awareness allows you to learn, remember, and problem-solve (Source: Indeed Editorial Team).
[3] Negligence: An offense that involves a breach of an objective standard of behavior expected of a defendant (Source: Forbes Legal).
[4] Actus reus: Action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused (Source: Oxford Dictionary).
[5] Japanese automaton incident: A 37-year-old Japanese employee of a motorcycle factory was killed by an artificial-intelligence robot working near him. The robot erroneously identified the employee as a threat to its mission, and calculated that the most efficient way to eliminate this threat was by pushing him into an adjacent operating machine. Using its very powerful hydraulic arm, the robot smashed the surprised worker into the operating machine, killing him instantly, and then resumed its duties with no one to interfere with its mission (Source: https://doi.org/10.2139/ssrn.2691923).