Punishing Artificial Intelligence: Legal Fiction or Science Fiction

42 Pages Posted: 8 Feb 2019 Last revised: 5 Apr 2019

See all articles by Ryan Abbott

Ryan Abbott

University of Surrey School of Law; University of California, Los Angeles - David Geffen School of Medicine

Alex F. Sarch

University of Surrey School of Law

Date Written: February 1, 2019

Abstract

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI functionally commits a crime and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement for a guilty mind.

Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show AI punishment cannot be categorically ruled out with quick theoretical arguments. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime.

Keywords: artificial intelligence, law and technology, criminal culpability, legal fiction, mens rea, legal personality

Suggested Citation

Abbott, Ryan Benjamin and Sarch, Alex F., Punishing Artificial Intelligence: Legal Fiction or Science Fiction (February 1, 2019). UC Davis Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3327485 or http://dx.doi.org/10.2139/ssrn.3327485

Ryan Benjamin Abbott (Contact Author)

University of Surrey School of Law ( email )

Guildford
Guildford, Surrey GU2 5XH
United Kingdom

University of California, Los Angeles - David Geffen School of Medicine ( email )

1000 Veteran Avenue, Box 956939
Los Angeles, CA 90095-6939
United States

Alex F. Sarch

University of Surrey School of Law ( email )

United Kingdom

HOME PAGE: http://www.surrey.ac.uk/law/people/alexander_sarch/

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