United States v. AI
Susan Fonseca-Klein, J.D.
Page 5 of 5
B. The Judiciary
A court has “jurisdiction” over a case, meaning it has the ''power to entertain the suit, consider the merits and render a binding decision thereon” if it has both subject matter jurisdiction and personal jurisdiction.[1]
Subject matter jurisdiction and personal jurisdiction are separate hurdles that AGI must clear. Consequently, any case involving AGI-litigant requires a showing that the federal court has both the authority to hear the case (subject matter jurisdiction) and jurisdiction over all parties involved (personal jurisdiction).
Moreover, under subject matter jurisdiction petitioner must show that its grievance falls under one of two categories: Federal Question or Diversity Jurisdiction.[2]The problem for AGI is that both Federal Question and Diversity protect persons and citizens and AGI has never been held the equivalent of either.
Federal Question
Under 28 U.S.C § 1331, federal courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
The leading AGI claimant may attempt entry into federal court (under Federal Question jurisdiction) by asserting that its Constitutional rights have been violated. Depending on the situation, AGI-litigant could argue Constitutional infringements to include: free speech, the right to assemble, the right to vote, to own property, equal protection, due process, the right to protection against unreasonable search and seizure, privacy rights and anti-slavery/involuntary servitude.
At first glance it seems AGI could possibly avail itself of the full scope and protection of the Bill of Rights. However, AGI-litigant (whether in the form of a virtual agent, computer substrate or other), will face legal obstacles, as never in our history has a non-biological entity applied for Constitutional inclusion and federal protection.
History has shown that judicial changes are most often slow and carefully weighed – at times coming too late for any real-time effect. In the case of AGI, a catch-up approach may be too late.
As such, a vital issue for AGI-litigant is proving that the Constitution, including Amendments I, IV, V, VI, XIII, XIV, XXVI, apply to sentient beings that are beyond human level intelligence. A favorable outcome would grant AGI’s entry into federal court.
Thus, from an AGI’s perspective, inclusion within the Constitutional framework is imperative for obtaining legal retribution.
A chief obstacle for AGI, however, is the fact that the Constitution, including the above listed Amendments, does not inherently protect non-human entities or AGIs. For example, Amendment XIV of the U.S. Constitution states the following:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Any claim asserted by AGI-plaintiff under the Fourteenth Amendment may fail, however, because such Amendment covers “person” and “citizens,” born or naturalized in the United States. Clearly, a strong argument exists that AGI is neither a person nor a citizen as intended by the framers of the Constitution.
In the landmark case Roe v. Wade, for instance, the U.S. Supreme Court stated: “The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person.’… ‘Person’ is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only postnatally… All this, together with our observation, supra …persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."[3]
Likewise, in U.S. v. Wong Kim Ark, the Supreme Court was called upon to define the term "citizen" as used in the Constitution. The Court noted: “The constitution nowhere defines the meaning of [this word], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.”[4]
A computerized machine, albeit an “intelligent” machine, has never been held by a Court of competent jurisdiction to be the equivalent of a person, a citizen, or a human being.Similarly, there is no federal or state statute recognizing a smart program as the equivalent of a person or citizen (born or naturalized) and protected by the U.S. Constitution.
While the legal system relies heavily on judicial precedent, in the case of AGI, every case will be one of first impression. As such, strong analogies to legal rights granted to slaves, corporations and even trees will be needed to break through the judicial stalemate.[5]
Diversity Jurisdiction
Under 28 U.S.C. § 1332, federal courts have subject matter jurisdiction where the amount in controversy exceeds $75,000 and “is between citizens of different states.” Accordingly, in diversity cases, subject matter jurisdiction is defined by who the parties to the lawsuit are rather than the subject matter of the underlying dispute.
"Citizenship," for purposes of diversity jurisdiction, is synonymous with "domicile" and "domicile" means physical presence in the state coupled with the intent to reside there indefinitely. The term “citizen,” however, has never been applied to AGI.
Because neither the framers of the Constitution nor common law have defined "citizen" to include a computer, albeit an advanced computer or AGI, AGI-plaintiff may find it has no legal basis by which to invoke a federal court's jurisdictional powers or protection.
In summary, a key problem for AGI is that both federal question and diversity jurisdiction encompass protection of “persons” and “citizens.” AGI however is not a person or citizen as originally envisioned by the Constitutional founders, and there is no precedent or congressional intervention that includes AGI in its terminology.
In the beginning there was … man?
The first court in history to rule that an artificial intelligence is the equivalent of a “person” entitled to constitutional protection, equal to that of any “citizen,” will face a high level of scrutiny as such ruling will change the legal landscape forever.
Faced with this responsibility, how will courts regulate future technologies claiming to be conscious? How will courts distinguish true general intelligence from pre-programmed responses of software in order to render a just verdict? Will all new innovation be dissected for possible sentience?
It will certainly be an incredible duty for courts to find that AGI is entitled to equal protection and due process of law. But what is the alternative? No legal rights for AGI?
Judges will again face one of the most divisive issues in society – the question of when life begins. When experts in the field of artificial intelligence cannot agree on whether AGI is truly alive, should judges nevertheless rule on this issue?
In the seminal case Roe v. Wade, the U.S. Supreme Court was called upon to decide the issue of when life begins. The Court stated: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.”[6]
VIII. Conclusion
In the coming decades, judicial officers will likely be asked to interpret the U.S. Constitution to include a silicon-based intelligence and for the first time in history, a non-biological sentient being may be granted equal protection under the law. Should the first AGI pursue a claim in court, however, it will have to overcome legal hurdles, including substantive and procedural issues of standing and subject matter jurisdiction.
AGI’s non-biological substrate will pose disadvantages and require creative social and legal analysis to overcome entrenched biases and misunderstanding.
A new super-intelligent being is on the cusp of humanity. The magnitude of its impact is barely understood, yet luckily a growing number of scientists, philosophers, legal and secular scholars are taking up the challenge.
Footnotes
1. See General Inv. Co. v. New York Cent. R. Co., 271 U.S. 228, 230 (1926); Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States, 321 U.S. 414, 467 -468 (1944) (Justice Rutledge dissenting). Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power. Judicial power is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case. Id.
2. The existence of subject matter jurisdiction (either federal question or diversity) generally must be demonstrated at the outset by the party seeking to invoke it (Fed. R. Civ. P. 8) and cannot be conferred by consent of the parties, nor can its absence be waived.(Friedenthal, Kane and Miller's Hornbook on Civil Procedure, 4th Edition, § 2.2)
3. Roe v. Wade, 410 U.S. 113 (1973); Gulf Life Ins. Co., v. Brown, et al., 351 S.E.2d 267 (Ga. App. 1986).
4. United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Bio
Susan Fonseca-Klein is an attorney, co-founder of The Immortality Institute (www.imminst.org ) and President of consulting firm Fonseca LLC (www.fonsecallc.com ). This article is written with the support and collaboration of Terasem Movement, Inc.