AI and the law
One of the reasons the law has to hurry up and get ready is to assure one of the most important stakeholder groups in AI research – investors
Aside from the usual commercial risks of any business venture, fear your company can be exposed to crippling litigation is enough to cool investors' heels, and unless it can be assured of some kind of risk protection, the industry simply won't get the money it needs to do its work and introduce AI systems into the market.
Because of how new the whole field is and how fast it's already changing, there are few regulatory proposals and even fewer legal precedents about how to deal with AI which goes wrong.
Still, we've seen a few cases appear –Lea points to a class action lawsuit from early 2017 in which accusers are taking Tesla to task over the Autopilot system, claiming it contains inoperative safety features and faulty enhancements.
David Danks is a Professor of Philosophy and Psychology at Carnegie Mellon University's Department of Philosophy, and he's leading a research project to investigate the ethical issues posed by AI.
Without any guidance or precedent he doesn't think the law has any choice but to rely on established norms of what constitutes liability.
"We can't provide performance standards like we do with, for example, the brakes of a car precisely because we want the AI to adjust its behaviour to the surrounding environments in 'intelligent' ways," Danks says. "But we can't necessarily specify in advance what counts as 'intelligent'."
That isn't to say the AI players aren't trying to lay out the field in their favour. Praful Krishna, cognitive computing/AI automation expert and CEO at cognitive computing developer Coseer says there's a lot of lobbying going on by the big players despite it being too early for legislation.
"In the current environment clients are agreeing to no liability clauses," Krishna says. "Wherever it is not possible, AI vendors usually don't venture ahead with big projects."
In his story on The Conversation Lea says safety standards – including a certification processes – will be crucial.
To do so he says expertise from within the AI developer community is needed because of a general lack of understanding among the public. Lea calls for the establishment of advisory committees to legislators and governments as soon as possible.
But can the industry continue to avoid such legislative strictures, ensuring liability for AI rests with the user?
"Within limits," Lea says. "Naturally developers and publishers will work hard to get the balance of legal regulation that most favours them but it's always a matter of circumstance, especially should a major AI-related issue crop up."
David Danks agrees the industry can set itself up to deflect liability as long as possible.
"Unfortunately, I think that they probably do have a chance," he says. "The most popular current tactic is to label AI technology as 'beta' or 'developmental,' as any problems can then be blamed on the user."
But while Danks acknowledges that won't work forever in the face of continuing improvements in AI performance, he thinks the industry will move with the improvements to resist liability even harder - “whether through terms & conditions, warning labels or explicit contracts”.
“At least in the US, that strategy will likely work for a very long time," he says.
In the end, says Marc Lamber, an attorney and self-driving car expert at Fennemore Craig Attorneys, it will only shake out when a jury decides.
"Did the AI play a causative role in the damage and should the AI have prevented the incident altogether?" he asks. "Among other things, this could involve some complicated and competing expert testimony regarding whether the AI functioned as it should."
To predict that outcome, says Scott, we need only follow the money.
"This is where insurers will come in," he says. "Around 1.3 million lives are lost worldwide every year to traffic accidents and autonomous vehicles could make that a memory.”
“Insurers would be highly motivated to underwrite and indemnify manufacturers against the occasional exception. Out of court settlements, even for huge sums, would be affordable and cost effective."