Drones & Dependent Legal Personhood

This note attempts to provide an opportunity for readers to consider the impacts of drones, also known as unmanned aircraft systems up to 55lbs/25Kg (UAS)[1], on the legal world, especially in relation to legal liability implications. This advanced intelligent agent, software-based machine, where software is set of instructions, known as code that directs a computer to perform specific operations[2] has the ability to evaluate its environment and take action on its own without human intervention.

An UAS has already reached a stage where human control is not necessary (or possible). Hence, the agency principles for less advanced applications may not be suitable. How then should one consider the legal implications of UAS or likewise advanced technology? To answer this question, we need to determine whether UAS should be given a dependent legal personality.

It is well established that legal personality can be attached to natural persons but also to legal entities such as companies[3] or vessels[4] that are treated similarly in law. With this in mind, this note argues for granting UAS its legal personhood in a similar way as it has happened to those entities. To help ensure that human interactions with UAS are beneficial and occur as intended, the state legislatures and Congress need to pass laws that grant limited legal personhood to these types of technology. With this in mind, US legal system will be the doctrinal forum for this discussion.

In public opinion the word ‘drone’ has negative connotations of military drones, kill lists and human ‘collateral damage.’[5] Arguably, computerised technology is extremely rarely the problem per se; it is the application of computerized object that is likely to cause harm. Dones can improve safety and reduce risk of harm by taking over dangerous jobs that would otherwise be done by people. Nonrtheless, because drones enjoy two distinct features not shared with the aviation marketplace: (a) they are unmanned, having no human pilot/operator onboard, and (b) they are remotely operated by a pilot using data link transmissions evidently[7], they raise red flags to the insurance industry — personal injury and invasion of privacy. Especially when the UAS itself takes unguarded actions.

Granting UAS with its dependent personhood would bring about a ‘right-and-duty-bearing unity,’[8] making it liable for condemnation and forfeiture, without human being liable for this entity wrongdoing.[9] Consequently, as argued by Del Mar and Twining, the process of granting personhood to non human-entity could ‘brings about this beneficial adaptation in the law with but minimum of destruction to the existing procedures of legal practice (...) and achieve the desirable consequence of a more just, coherent, and workable jurisprudence while maintaining, for the most part, continuity and consistency in the law.’[11]

This is also to suggest that UAS should obtain dependent legal personhood through the legislation of statutory personhood. The legislators would need to consider how UAS would be held to account for their actions, both civil and criminal. Liability of third parties (such as the legal person ‘owning’ and ‘benefiting’ from the actions of the UAS) should be clearly considered. The legislature will present an opportunity to foster the actions of UAS, as well as a risk that limits the future development in this area. For example, creating a liability to innovators that perhaps have the closest connection to the UAS they create may de-incentivise UAS.

One may suggest however, that the acquisition of dependent legal personhood rights and obligations by UAS is an unlikely scenario due to our considering human beings as the most significant entity of the universe and solely deserving legal personhood protection. In the case of these claims, there are two related arguments for according dependent personhood to UAS, which are based on the interests of humans. First, categorization as a juridical person is necessary for practical reasons, since the law requires an object upon which to act.[12] Second, UAS would have the possibility of taking responsibility for condemnation and forfeiture, without making human liable for UAS’ wrongdoings. Failure to do so could undermine the rights of currently recognised natural persons.[13]

In summary, at some stage law makers and the insurance industry must consider the liability issues posed by UAS. Perhaps the legal personhood concept has a part to play. Weng, Chen, and Sun have already argued that UAS would be likely held liable for exceeding collateral damage[14], as well as for war crimes while the responsibility of their commanders and constructor would be abolished.[15] Others, such as Davis, favour the opinion that the current legal system is ‘woefully inadequate to deal with the growing use of more and more intuitive artificial intelligence systems’.[16]

Hence, on the verge of computer programs breakthroughs, which establish and reshape human comprehension of intelligence and legal personhood, maybe the time has come ‘to accept that [rights and duties] should be granted to inanimate entity [software-based machine e.g.: UAS] even if that requires a radical shift in thinking and the creation of a new form of legal personality.’[17]

References:

(Oscola type of referencing)

Image: www.stockfreeimages.com

[1] US Federal Aviation Administration, ‘Overview of Small UAS Notice of Proposed Rulemaking’ <http://www.faa.gov/regulations_policies/rulemaking/media/

021515_sUAS_Summary.pdf> accessed 26 April 2018.

[2] See Microsoft v AT&T [2007] 550 US 437; Huang HW, The HCS12 / 9S12: An Introduction to Software and Hardware Interfacing (2nd edn, Cengage Learning 2009) 36.

[3] See Trustees of Dartmouth College v Woodward [1819] 17 US 518; Santa Clara County v Southern Pacific Railroad [1886] 118 US 394;

[4] United States v The Little Charles [1818] 26F Cas 979, 981-82.

[5] Isabelle Duyvesteyn and Ben de Jong and Joop van Reijn, The Future of Intelligence: Challenges in the 21st Century (Routledge 2014) 154.

[6] Ross McKean, ‘Drones - flying into the legal headwind’ (Olswang 18 February 2015)

< http://www.olswang.com/articles/2015/02/drones/> accessed 26 April 2018.

[7] Vikkie Stone, ‘Rise of the Drones’ (Risk & Insurance, 3 March 2014)

< http://www.riskandinsurance.com/rise-drones/> accessed on 24 March 2017.

[8] See John Dewey, ‘The Historic Background of Corporate Legal Personality’ (1926) 35(6) The Yale Law Journal 655, 656; Leon Wein, ‘The Responsibility of Intelligent Artifacts: Toward an Automation Jurisprudence’ (1992) 6 Harv JL & Tech 109.

[9] See Maksymilian Del Mar and William Twining, Legal Fictions in Theory and Practice (Springer 2015) 96; United States v The Little Charles [1818] 26F Cas 979, 981-82.

[10] John Chipman Gray, The Nature and Sources of the Law (BiblioBazaar 2009) 27.

[11] Maksymilian Del Mar and William Twining (n 9) 96.

[12] Wesley N Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710, 74-75

[13] Jessica Berg, ‘Of Elephants and Embryos: A Proposed Framework for Legal Personhood’ (2007-2008) 59 Hastings LJ 369, 382-384.

[14] Yueh-Hsuan Weng and Chien-Hsun Chen and Chuen-Tsai Sun, ‘Toward the Human-Robot Co-Existence Society: On Safety Intelligence for Next Generation Robots’ (2009) 1(4) International Journal of Social Robotics 267-282

[15] Heather M Roff, ‘Killing in War: Responsibility, Liability and Lethal Autonomous Robots’ in Fritz Allhoff and Nicholas G Evans and Adam Henschke, Routledge Handbook of Ethics and War: Just War Theory in the 21st Century (Routledge 2013) 352-362.

[16] Colin R Davies, ‘An evolutionary step in intellectual property rights e Artificial intelligence and intellectual property’ (2011) 27 Computer Law & Security Review 601, 602.

[17] Ibid 601.