About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


2024 U. Chi. L. Rev. Online 1 (2024)
The Law of AI Is the Law of Risky Agents without Intentions

handle is hein.journals/uchidial2024 and id is 269 raw text is: 11/27/24 U. Chi. L. Rev. Online *1 The Law of AI is the Law of Risky Agents Without Intentions Ian Ayres*& Jack M. Balkint I. Introduction A recurrent problem in adapting law to artificial intelligence (AI) programs is how the law should regulate the use of entities that lack intentions. Many areas of the law, including freedom of speech, copyright, and criminal law, make liability turn on whether the actor who causes harm (or creates a risk of harm) has a certain intention or mens rea. But AI agents-at least the ones we currently have-do not have intentions in the way that humans do. If liability turns on intention, that might immunize the use of AI programs from liability. We think that the best solution is to employ objective standards that are familiar in many different parts of the law. These legal standards either ascribe intention to actors or hold them to objective standards of conduct. Of course, the AI programs themselves are not the responsible actors; instead, they are technologies used by human beings that have effects on other human beings. Therefore, the real guestion of legal obligation is who should be held responsible for the use of AI and under what conditions. We might think of AI programs as acting on behalf of human beings. Then AI programs are like agents that lack intentions but that create risks of harm to people. It follows that the law of AI is the law of risky agents without intentions. The law should hold these risky agents to objective standards of behavior. Holding AI agents to objective standards of behavior, in turn, means holding the people and organizations that implement these technologies to standards of reasonable care and requirements of reasonable reduction of risk. Thus, if the law of AI is the law of risky agents without intentions, then legal regulation of AI must require AI companies to internalize the costs of the risks they impose on society through rules and standards that regulate design, training, and implementation. To regulate AI, one must regulate the risks created by the people and organizations that employ AI, including their choices to use AI in the first place. * Oscar M. Ruebhausen Professor, Yale Law School. t Knight Professor of Constitutional Law and the First Amendment, Yale Law School. Harran Deu provided helpful research assistance.