Digital Analogues (Part 4): Is AI a Different Kind of Animal?

Source: David Shankbone

The last two entries in this series focused on the possibility of treating AI systems like “persons” in their own right.  As with corporations, these posts suggested, legal systems could develop a doctrine of artificial “personhood” for AI, through which AI systems would be given some of the legal rights and responsibilities that human beings have.  Of course, treating AI systems like people in the eyes of the law will be a bridge too far for many people both inside the legal world and in the public at large.  (If you doubt that, consider that corporate personhood is a concept that goes back to the Roman Empire’s legal system, and it still is highly controversial)

In the short-to-medium term, it is far more likely that instead of focusing on what rights and responsibilities an AI system should have, legal systems will instead focus on the responsibilities of the humans who have possession or control of such systems. From that perspective, the legal treatment of animals provides an interesting model.

Legal systems invariably impose legal obligations on owners and keepers of animals to ensure that those animals do not cause harm to others. As a legal encyclopedia explains it, “[b]ecause animals are not governed by a conscience and possess great capacity to do mischief if not restrained, those who keep animals have a duty to restrain them.”  Under traditional American and British law, the extent of that duty traditionally depends on whether the animal is a “wild” animal or a “domesticated” animal.

For a wild animal that is considered dangerous by nature and kept as a pet, the animal’s owner or keeper is strictly liable for any injury or property damage that the animal causes. In other words, if Farmer Jones’s pet wolf Fang escapes and kills two of Farmer Smith’s chickens, Farmer Jones is legally responsible for compensating Farmer Smith for the lost chickens—even if Fang had always been perfectly tame previously.  The theory behind imposing such strict liability is that wild animals are inherently dangerous, such that a wild animal’s keeper is effectively on notice from day one that the animal presents a risk to others.

For domesticated animals kept as pets, however, the owner generally must have some knowledge of that specific animal’s dangerous propensity. In other words, if Fang was a Chihuahua instead of a wolf in the previous example, Farmer Smith might be out of luck unless he can show that Fang had eaten a chicken or otherwise shown “dangerous propensities” at least once before. This rule gave rise to one of the more amusing legal expressions: that every dog gets one “free bite.”  That expression is not quite true in a literal sense, however; even if a dog has not actually bitten someone before, the owner might face liability if the dog had previously shown aggressive or dangerous behavior before.

The next entry in this series will point out some of the obvious ways in which AI systems are not like animals (spoiler alert: animals are not designed and manufactured by humans) and explore what lessons animal law might hold for legal systems’ treatment of AI.

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