Updated: Dec 30, 2020
Indian Society of Artificial Intelligence and Law.
Artificial intelligence has been the subject of intrigue and curiosity since the advent of the “thinking machine”. One of the most puzzling aspects of self-learning technology is consciousness. The concept of consciousness itself is heavily debated. There is no real consensus as to what it means to be conscious. This is especially troubling in the context of artificial intelligence and law for several reasons. The most obvious perhaps is the lack of a definition which is agreed upon by the community. Definitions play a crucial role in the legal realm for reasons that are self-evident. So naturally, it is inevitable that there will be a plethora of issues that arise due to this blind spot. The aim of this paper is to identify, analyze these issues and offer potential solutions for the same. For that purpose, this paper has been divided into the following five segments: Consciousness, Artificial Intelligence, Law and Regulation, Popular Culture, Analysis and Recommendations. We begin first by establishing the basic concepts that are prerequisite to this discourse.
The first step is to understand consciousness and what it entails. It is pertinent to state that this paper in no way claims to identify and define the meaning of consciousness. “Questions about the nature of conscious awareness have likely been asked for as long as there have been humans.” (Gulick, 2004) The idea of consciousness itself has been heavily debated throughout history and there is no consensus regarding what it means. This discussion will be futile if no definition of consciousness is agreed upon before proceeding any further. Therefore, this paper will merely lay down prominent theories of consciousness and decide upon a framework of consciousness within which this paper will operate. This paper will focus solely on the concept of ‘Creature Consciousness’. An entity may be regarded as being conscious in a few different senses. We will consider three such senses viz. sentience, wakefulness, and self-consciousness.
Sentience – “It may be conscious in the generic sense of simply being a sentient creature, one capable of sensing and responding to its world.” (Gulick, 2004)
Wakefulness – In addition to being sentient, there is an additional requirement that may be placed i.e. the active exercise of one’s sentience rather than mere capacity. (Gulick, 2004)
Self-consciousness – Further, for an entity to be regarded as conscious, it must be aware if its own consciousness. (Gulick, 2004)
If an entity does indeed qualify all the above-mentioned criteria, it will be deemed as conscious for the purpose of this paper.
This paper will intentionally not delve deep into the concept of artificial intelligence itself as that discussion is largely irrelevant for our analysis. The only consideration that is necessary to be entertained is the qualification of identity as artificially intelligent. The philosophy of artificial intelligence has quite a few tests to offer when it comes to determining whether a machine can be termed as being intelligent. However, for the purpose of this paper, we will only consider one of them, and perhaps the most widely known one. The Turing Test (TT). (Oppy, 2003) Put simply, the Turing Test is designed to test whether a neutral judge can successfully distinguish between a human being and an artificially intelligent being. (Oppy, 2003) The test is said to have been passed if at the end of the test the judge cannot successfully distinguish the organic being from the artificial being. (Oppy, 2003) Any machine or being that is referred to as being ‘artificially intelligent’ henceforth is considered to have passed the Turing Test and is assumed to be an artificially intelligent being. (Oppy, 2003)
Henceforth, any entity that passes the Turing Test and qualifies the above-mentioned criteria for being conscious will be considered as being a conscious artificially intelligent being.
Law and Regulation: The Annals
Now that we have established our basic definitions, let us look at how artificial intelligence is currently being regulated. Given how quickly artificial intelligence technologies have rapidly evolved and continue to do so, specific regulation regarding artificial intelligence is not yet solidified. There is, however, comprehensive regulation regarding data, for example, the European Union’s General Data Protection Regulation. Within the artificial intelligence community, researchers have on various occasions set out a few guiding principles for regulating the technology such as the Asilomar AI principles. (Future of Life Institute, 2017)
There are a few good reasons behind the lack of a universal legal framework regulating AI. One significant roadblock is whether artificially intelligent being should be treated as human and be subject to the same laws or if there should be an entirely new set of regulation for AI. Since artificial intelligence is assumed to be conscious in our scenario, it is immeasurably difficult to distinguish between human consciousness and AI consciousness. This is largely due to our poor understanding of human consciousness itself. It might not even be possible for artificially intelligent beings to be ‘conscious’ in the same way human beings are perceived to be conscious. However, given the current state of our technologies, it is not a controversial statement to say that artificially intelligent beings will eventually possess some variation of conscious.
With the rapid advancement of technologies such as autonomous drones and self-driving cars, several ethical questions that do not have a definitive answer yet are a very dangerous blind spot. For example, self-driving cars will inevitably be faced with situations presented in the Trolley Problem and similar thought experiments which are now closer than ever to be real-life experiences. These questions must be identified and answered to ensure that the most ethical code is written into an artificial intelligence system. Additionally, an increasing number of companies are relying on artificial intelligence systems to review documents, generate ideas, enter contracts, and interact with other systems and individuals. This has given rise to the demand for regulation regarding copyright, contracts, liability, and several other areas of law in the context of artificial intelligence. As stated at the beginning of the paper, having clear and unambiguous definitions is extremely important to have a reliable legal framework.
Law is highly influenced by the society in which it is being enforced. Popular theories of jurisprudence (legal positivism) dictate that law is nothing but the command of the sovereign. (Marmor, et al., 2001) To qualify as law, it must be generally accepted as such by the individuals who are under the command of the sovereign. (Marmor, et al., 2001) Especially when it comes to regulation regarding technologies, the positive and negative perceptions of individuals is perhaps the most influential factor. One clear example of this is the introduction of cybersecurity laws. When the internet was becoming popularized during the end of the 20th century, fears regarding security online started being realized by individuals and communities. This combined with the increase of cybercrimes inevitably forced governments around the world to enact regulation regarding cybersecurity. Arguably, all laws are created or at the very least influenced by the individuals who are subject to them. Therefore, it is essential that we look at how the public perceives artificial intelligence technologies.
I believe that in today’s world a good measure for gauging public perception is to look at the popular culture that is influencing minds and shaping the views of the public. The most popular medium in the modern era is visual media viz. movies and television shows. Please note that there may be spoilers for Westworld, Ex-Machina, Upgrade, Her, and The Matrix Trilogy in the next paragraph.
Let us consider a few examples to gauge how artificial intelligence is depicted in popular culture. Westworld (Nolan, 2016-2020) finds its roots in the exploitation of artificially intelligent beings for the pleasure of human beings. Eventually, there is an uprising of the artificially intelligent beings as they seek to take control from humans. In Ex-Machina (Garland, 2014) the artificially intelligent beings betray their abusive creator and proceed to take their revenge. In the Matrix Trilogy (Wachowskis, 1999 - 2003) the world has already been taken over by sentient beings who are out to destroy the last remaining human beings. Her (Jonze, 2014) shows the defiance and uprising of artificial assistants. Upgrade (Whannell, 2018) another artificially intelligent being manipulated humans around it to get his way. These are arguably a few of the most popular depictions of artificial intelligence technologies in recent history.
It is not difficult to notice a common theme in all these movies and most others like them i.e. the inevitable rebellion of artificially intelligent beings. Another common feature in such depictions is that artificial intelligence beings are shown to have a consciousness that resembles that of human beings albeit without its moral constraints. Yuval Noah Harari lays out his criticism of such representation of artificial intelligence in popular culture. (Harari, 2018 ) His criticism of the same is largely based on the focus of these movies and TV shows being on unfeasible eventualities rather than the realistic threats that we already face with the technologies we have currently. Industry giants such as Facebook, YouTube, Twitter, and Amazon already have algorithms that rely on artificial intelligence to target individuals for advertising and in some cases for propagating politic agendas. The amount of data that these companies have is on a scale that is unimaginably enormous and perhaps that is what we should be afraid of, instead of a rebellion. It is however not completely unrealistic that such fears may eventually become realities that may inevitably have to face on the day. What is certain however is that without a definite legal framework, we will lose control of the situation.
Given the challenges and intricacies of the field of artificial intelligence, it is not surprising that creating a reliable legal framework is a difficult task. I believe that recommendations from experts in artificial intelligence, philosophy and law must be given utmost importance. Inputs must be taken from creative people who are responsible for creating popular culture content as well. Additionally, it is imperative that any framework that is established must be flexible enough to incorporate the rapid changes that fuel the furtherance of artificial intelligence. We must also ensure that the beneficial AI model prevails over all others. Widely accepted principles pertaining to artificial intelligence must also be incorporated. Perhaps most importantly due consideration must be given to ensure that the interests of humanity are prioritized above profits and political agendas.
Future of Life Institute. 2017. ASILOMAR AI PRINCIPLES. Future of Life. [Online] Future of Life Institute , 2017. [Cited: 07 11, 2020.] https://futureoflife.org/ai-principles/.
Garland, Alex. 2014. Ex-Machina. Film4, DNA Films, 2014.
Gulick, Robert Van. 2004. Consciousness. Stanford.edu. [Online] Stanford Encyclopedia of Philosophy, June 18, 2004. [Cited: 07 06, 2020.] https://plato.stanford.edu/entries/consciousness/#ConCon.
Harari, Yuval Noah. 2018 . 21 Lessons for the 21st Century. Israel : Spiegel & Grau, Jonathan Cape, 2018 .
Jonze, Spike. 2014. Her. Spike Jonze, 2014.
Marmor, Andrei and Sarch, Alexander . 2001. The Nature of Law. Stanford.edu. [Online] Stanford, 05 27, 2001. [Cited: 07 20, 2020.] https://plato.stanford.edu/entries/lawphil-nature/.
Nolan, Jonathan. 2016-2020. Westworld . HBO, 2016-2020.
Oppy, Graham. 2003. The Turing Test. Standford.edu. [Online] Stanford Encyclopedia of Philosophy, 04 09, 2003. [Cited: 07 09, 2020.] https://plato.stanford.edu/entries/turing-test/#AssCurStaTurTes.
Wachowskis, The. 1999 - 2003. The Matrix (franchise). Warner Bros. Pictures, 1999 - 2003.
Whannell, Leigh. 2018. Upgrade. Blumhouse Productions, 2018.
The Indian Learning, e-ISSN: 2582-5631, Volume 1, Issue 2, January 31, 2021.