The Jeff Cumberbatch Column – The legal Profile of Artificial Intelligence

If a person purchases a driverless car for their own use and properly maintains it, it would be unfair to fault them for any accidents when the vehicle is supposed to independently drive itself…Madeline Roe – (2019) 60 Boston College Law Review 315, 343.

Driverless cars…appear to be the way of the future. They can create efficiency, change people’s quality of life, and foster positive impacts on the environment- Ibid, 347

I would be among the first to admit that the content of this week’s column is unlikely to resonate with a majority of readers. But it cannot always be a matter of discussing ever-revolving parochial concerns while the rest of civilization forges ahead with developments to transform existence as we now know it.

There is no doubt that we live today in a “smart” world. I am reminded of this weekly at every tutorial when the discussion of a question is preceded not by a rustling of papers as it was in my days as a student, but rather by the un-pocketing or un-bagging of smart phones by the students to get on the University’s E-learning interface so as to access the relevant materials. The situation is further compounded by a Faculty policy of “paperlessness” so that no printed materials are distributed as before.

The smart phone itself is but a small drop in the ocean of current artificial intelligence however. Artificial intelligence, the ability of a machine to think, learn and perform tasks ordinarily related to human action, has expanded over the years to include robots that perform the most highly skilled tasks, driverless cars, security surveillance, and personal assistants such as Siri, Google Now, and Alexa, to name a few. Indeed, there are not many facets of life in which artificial intelligence might not be of beneficial use, be it in agriculture, banking, energy or the E-tail industry.

The increasing ubiquity of AI systems means that there is a greater likelihood of interaction with human beings. This raises issues of the legal, moral and ethical responsibility if this interaction should result in some harm being suffered by the human being. This immediately invokes a consideration of whether these systems should be treated as being endowed with a legal or other personality so as to be held responsible for such outcomes.

Two areas in which this issue comes readily to mind are those of autonomous driverless cars and surgical robots where serious physical injury or even death may be a consequence. I should disclose that my interest in this area was piqued by the research proposal of one-third year student for her independent research paper. As supervisor of that paper, I have been keen in recent weeks to familiarize myself with the existing literature in the area.

One study that has proved to be most usefully informative in this context is an article in the 2019 Boston College of Law Journal by Professor Madeline Roe of the Boston College Law School, entitled Who’s Driving That Car?: An Analysis of the Regulatory and Potential Liability Frameworks for Driverless Cars. In this piece, Professor Roe attempts to explore possible frameworks of liability for driverless cars and argues for the further regulation of these vehicles. Her hypothesis is that liability for accidents will most likely shift from the driver to the manufacturer.

Of course, these are not live issues in Barbados as yet and, given our traditional unduly conservative approach to novelty, I am not certain that they will be anytime soon either. Just look at our hostile attitude to the smart phone where we were content to highlight the ways in which it might be misused rather than its patent utility in order to justify its official prohibition in classrooms. I may be deemed an eternal pessimist, but the idea of Barbadians readily embracing autonomous driverless cars (those remotely controlled only) does not come easily to my imagination.

In her article referred to above, Professor Roe uses some court decisions on assessing the liability for the use of surgical robots as analogies for determining that for accidents caused by driverless cars. In one such case, a doctor performed a robotic prostatectomy on the claimant whose body mass index vastly exceeded that recommended for this type of surgery, with the immediate consequence of serious complications for the claimant.

The surgeon then converted the procedure to open surgery and completed it without the surgical robot. However, the claimant thereafter had a poor quality of life and eventually passed away. The manufacturer of the robot was eventually determined by the Supreme Court of Washington to be responsible for the death on the basis of product liability for its failure to warn the hospital and doctor about the risks of using what was considered to be an “unavoidably unsafe” product. In product liability cases, a manufacturer will be held strictly liable for the design or creation of a product that is deemed to be inherently unsafe when used in the manner intended.

In another case, the Kentucky Court of Appeals held a surgeon and the hospital liable to the claimant for a botched surgical robot procedure. This was on the basis of negligence or a failure by the defendant to achieve the required standard of care. Here, the court emphasized the necessity for expert testimony to assist the unschooled jury as to the required standard of medical care in the circumstances.

From this jurisprudence, the article proceeds to contrast the surgeon with extensive medical knowledge using a robot with the more general public use of driverless cars where the sole preconditions to operate them are being above a certain age and the acquisition of a licence. Yet the car is supposed to do the entirety of driving on its own. Should a licence then be required at al for the use of a driverless car? What if an emergency should arise?

The author notes that by allowing manufacturers to test-drive cars without people inside lays the foundation for not requiring a licence to be in such cars and concludes that the legislature “will have to weigh the utility of transporting people who are able to drive by themselves with the safety concern of the driverless car malfunctioning, [thereby]forcing the passenger to take the wheel”.

Another distinction between the two scenarios is that there are potentially two clear causes of human error with injury caused by a surgical robot; either that of the doctor, who makes an error during the operation by the robot (medical negligence) or that of the engineer, where the robot malfunctions (product liability). With the driverless car, who is at fault if it faces a problem that its programming does not account for? In negligence, an actor is liable for reasonably foreseeable consequences only, so clearly there would be no liability in the event of an unforeseeable event. Should a strict liability [no fault] standard be applied then? And would such a policy not lead to defensive engineering or, possibly, stasis?

Professor Roe also notes the variable of speed in the comparison. A road accident takes a few seconds only to occur and there would be little time, if any to correct mistakes made by the car, unlike during robot-assisted surgery. In conclusion, she notes the response of a new California regulation that permits the testing of driverless cars without passengers so long as they follow a series of stipulated rules relating to disengagement of the autonomous mode and the prompt reporting of nay accidents.

 

116 comments

  • Vincent Codrington

    Governor of ECCB is spot on. Learning is a lifelong process. Therefore it is more important to develop the cognitive skills of our people.

    Like

  • HERE IS THE WORD FROM DANIEL 9

    Seventy weeks are determined upon thy people and upon thy holy city, to finish the transgression, and to make an end of sins, and to make reconciliation for iniquity, and to bring in everlasting righteousness, and to seal up the vision and prophecy, and to anoint the most Holy.
    25Know therefore and understand, that from the going forth of the commandment to restore and to build Jerusalem unto the Messiah the Prince shall be seven weeks, and threescore and two weeks: the street shall be built again, and the wall, even in troublous times.
    26And after threescore and two weeks shall Messiah be cut off, but not for himself: and the people of the prince that shall come shall destroy the city and the sanctuary; and the end thereof shall be with a flood, and unto the end of the war desolations are determined.
    27And he shall confirm the covenant with many for one week: and in the midst of the week he shall cause the sacrifice and the oblation to cease, and for the overspreading of abominations he shall make it desolate, even until the consummation, and that determined shall be poured upon the desolate.

    Like

  • @ Donna
    I said that the “intense” interest in the “failures”(Trump and May) baffles me. I am well aware of the geopolitical importance to our region.
    Britain has been talking about exiting (BREXIT) for ages. Those who have not worked out Trump yet are to be forgiven.
    As for American foreign policy it’s been so since or before WW1.
    I know we don’t live in a fish bowl-we need not put our intellects in a tank !

    Like

  • @ William

    Plse explain May’s personal failure.

    Like

  • @ Hal
    I don’t know of any “ personal” failures but to date she has not been able to deliver any of her major political goals with any major success. The whole BREXIT debacle clearly demonstrates this position.

    Like

  • @William,

    She was a remainer. I broadly agree with you, but it is national suicide. Incredible. I do not want to go through my analysis again, but Scotland, Northern Ireland and London voted to remain. The impoverished North vote mainly to leave; now they are complaining. Brexit was all about immigration, non-white immigration. May is fighting a battle against the fascist wing of the Tory party. She is tough.

    Liked by 1 person

  • I hate to break some bad news to you….
    We will be here a long time from today
    The witnesses use to give an expiration date ever so often, but they learnt and gave that up.

    Like

  • RE We will be here a long time from today
    WHAT IS YOUR WARRANT FOR SO SAYING?

    The witnesses use to give an expiration date ever so often, but they learnt and gave that up.

    The witnesses AND ADVENTISTS ARE BIBLE ILLITERATES WHO HAVE NOT MASTERED ESCHATOLOGY

    IN DANIEL 2. 7 9 ETC GOD GAVE THE PROPHET A TIME LINE FOR HOW THE AGES WOULD PROCEED

    JESUS REFERRED TO THIS TIME LINE AS THE “TIME OF THE GENTILES” AND IN THE OLIVET DISCOURSE PROCLAIMED THAT WHAT DANIEL SAID WAS TRUE

    NOW THE REPUTABLE HISTORIANS I.E NOT HILARY BECKLES…….HAVE RECORDED HOW NEARLY ALL OF THE PROPHECIES IN THIS TIME LINE HAVE OCCURRED JUST AS PREDICTED

    THIS BEING THE CASE, IT IS REASONABLE TO EXPECT THAT THE FEW REMAINING EPISODES WILL OCCUR JUST AS THE OTHERS HAVE

    Like

  • Georgie Porgie

    There is no such thing as a Bible illiterate because you cannot approach God’s word as though you are verse in any particular subject matter … you are the illiterate one because you believe that by memorizing and regurgitating God’s word that it is going to put you in Heaven …

    Brother, you lack wisdom and this the Bible implores you to seek, but more importantly, you lack Love which is the true manifestation of the Holy Spirit … so home and genuflect and ball out to God for Him to save wretched soul before you miss Heaven…

    Liked by 1 person

  • Georgie Porgie

    Love as I have stated above is the true manifestation of the Holy Spirit and had you had such you would have been more circumspect with respect to the manner in which you employ such words … no lover or believer of our Lord Jesus Christ speaks in the manner in which you do … he or she is care or mindful of such words…

    Liked by 1 person

  • This topic will be closed Lexicon et al if the hijacking continues.

    Like

  • Electric cars are supposed to be good for the environment, but they could make America’s crumbling roads much worse

    Jay L. Zagorsky, The Conversation 11m


    Elon Musk speaks onstage at Elon Musk Answers Your Questions! during SXSW at ACL Live on March 11, 2018 in Austin, Texas. Diego Donamaria/Getty Images for SXSW
    Analysis banner

    The government relies on fuel taxes to fix potholes and crumbling roads.
    Fuel taxes raise more than $80 billion a year and pay for around three-quarters of what the US spends on building new roads and maintaining them.
    However, as fewer and fewer cars run on gasoline, the government will have less money to maintain old roads and build new ones, argues Jay L. Zagorsky, a senior lecturer at Boston University.
    Zagorsky argues that the government should tax individuals for using the charging stations carmakers and others are deploying throughout the country in order to make up for the lost revenue.
    The Conversation
    US roads and bridges are in abysmal shape— and that was before the recent winter storms made things even worse.

    In fact, the government rates over one-quarter of all urban interstates as in fair or poor condition and one-third of US bridges need repair.

    To fix the potholes and crumbling roads, federal, state, and local governments rely on fuel taxes, which raise more than US$80 billion a year and pay for around three-quarters of what the US spends on building new roads and maintaining them.

    https://www.businessinsider.com/electric-cars-could-make-americas-crumbling-roads-much-worse-2019-2

    Like

  • de pedantic Dribbler

    Mr Blogmaster, it is said that other than death the other certainty of life is taxation…no government comprised of human has ever failed to shift the incidence and burden of tax levies to the most income rich source.

    Didn’t our local govt find various ways to tax Bajans endlessly…

    The professor makes an interesting observation but hardly one that his various US state governments or the Fed govt will not address to make up for lower taxes from the fuel surcharge as more electric cars drive the roads.

    Like

  • @Dee Word

    We talk a good talk but where the rubber meets road is who will dare to remodel the establishment.

    Like

  • De Pedantic

    The only certainty in life is death … taxation no … because they are those who have spent their entire life in prison, and have never paid a cent in taxes … so dismiss that perennial dictum…

    Like

  • The Uber driver who camera shows took her eyes off the road just before the woman was killed may have to fight prosecution. We will wait to see how it plays out.

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s