This is a really good post, and something that is both complex and important. Thank you for taking the time to make it.
I think from some of the language used that this is a US-centric lean. I’m UK-based, but given the mutual common law system I think there’s some common ground to comment from. Given the jurisdictional difference none of these are criticisms or feedback, but are comparative explorations of your post with our own circumstance.
One thing I think is key from a liability perspective is the lack of IP protections for algorithms used as evidence. It may not be the case in the US, but in England & Wales there are very few (if any) intellectual property protections for algorithms once they are out in the open. This makes developers and retailers absurdly reluctant to disclose algorithms in court even if they are in the right. I think that is a niggle when it comes to using liability as a lever, and something that needs sorted.
The UK also doesn’t really have much of a punitive system in most cases, and it’s almost entirely based on “putting the individual back where they were”, with the exception of violated safety standards etc. I think using tort law is still feasible though, if we can address the IP issue and link harms more to ECHR, data law, and similar.
I don’t think there needs to be a worry about imminent existential risk to use tort law as a lever. Nuclear regulation has existential risk, but the safety standards still have plenty of punitive element there, as well as a tort law aspect. It links in with your strict liability point, but I do wonder how we would define ‘unpredictable and uncontrollable’ in terms of AI systems—though likely that is one for the guidance notes.
I do think there would be merit in compulsory insurance, and a portion of that insurance paying into a pot from which significant uninsured harms are compensated from. The UK does that with motor insurance, but other countries likely have similar systems.
Really enjoyed this post, and hope to see more from you soon.
No, no additional clarity needed at all—it was obvious. I just didn’t want it to come off like I was criticising rather than saying how this could work on our side of the pond :) I’ll be sure to give that a read tonight!
This is a really good post, and something that is both complex and important. Thank you for taking the time to make it.
I think from some of the language used that this is a US-centric lean. I’m UK-based, but given the mutual common law system I think there’s some common ground to comment from. Given the jurisdictional difference none of these are criticisms or feedback, but are comparative explorations of your post with our own circumstance.
One thing I think is key from a liability perspective is the lack of IP protections for algorithms used as evidence. It may not be the case in the US, but in England & Wales there are very few (if any) intellectual property protections for algorithms once they are out in the open. This makes developers and retailers absurdly reluctant to disclose algorithms in court even if they are in the right. I think that is a niggle when it comes to using liability as a lever, and something that needs sorted.
The UK also doesn’t really have much of a punitive system in most cases, and it’s almost entirely based on “putting the individual back where they were”, with the exception of violated safety standards etc. I think using tort law is still feasible though, if we can address the IP issue and link harms more to ECHR, data law, and similar.
I don’t think there needs to be a worry about imminent existential risk to use tort law as a lever. Nuclear regulation has existential risk, but the safety standards still have plenty of punitive element there, as well as a tort law aspect. It links in with your strict liability point, but I do wonder how we would define ‘unpredictable and uncontrollable’ in terms of AI systems—though likely that is one for the guidance notes.
I do think there would be merit in compulsory insurance, and a portion of that insurance paying into a pot from which significant uninsured harms are compensated from. The UK does that with motor insurance, but other countries likely have similar systems.
Really enjoyed this post, and hope to see more from you soon.
Indeed, this post is primarily addressing U.S. tort law. I should have made that clearer.
That said, if you want to see more, I’d direct you to the full draft law review article, which is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4694006
No, no additional clarity needed at all—it was obvious. I just didn’t want it to come off like I was criticising rather than saying how this could work on our side of the pond :) I’ll be sure to give that a read tonight!