Two robots walk into a bar...
It won't be long. Or maybe the bartender is a robot. With a breathalyzer built into his nose, which is cute but not so human that he triggers your uncanny valley aversion response. He'll call the self-driving Uber for you if he sniffs more than .08.
Meg and I want to buy a new electric car. She wants to wait to get one that's self-driving. Me too, but I think that's going to have to be in the next round, maybe five to ten years down the road (so to speak), perhaps much longer. I think the technology will get there before the legal liability questions are sorted out. Nothing like the uncertainty raised by a few big class action suits to slow you down if you're a pioneer.
I'm a lawyer by training, but living in Silicon Valley and having a son who is a programmer have rubbed off on me. I'm much more interested in the technology than the legal questions. The technology is futuristic and fun, and evolving quickly, whereas the law is (sometimes rightly) stuck in the past and evolves at about the rate fish sprouted legs. Still, we need to know who is on the hook when that self driving car runs over someone. We need some new rules of the road.
I was invited to a lecture at Stanford on this very subject, so I went. It was interesting. It also reminded me why so many of us are not partial to lawyers. Most of us just want to plunge ahead. Lawyers are cautious. Their favorite question is "what if." They can scare you out of doing almost anything. "What if the personal robot that you just sent out for coffee sees what it mistakenly thinks is a robbery in progress and grabs someone and wont let him go? Is the robot your agent, and are you guilty of kidnapping?" That was a question the professor asked me yesterday. Seriously.
He had just finished a thoughtful lecture that applied traditional legal theories to the autonomous activities of robots. He called them APs, for Autonomous Persons. In the law, apparently everyone, even corporations and robots, have to be persons. This is of course because the law was developed for persons and, as to court-developed law, which is much of it, is bound by precedent. Not too many robot precedents yet, so we look to how the law treats people who misbehave and try to apply those rules to robots.
Was the robot a mere tool (think a simple algorithm that performs one function), or did it have enough capacity and independence to be classified as an agent? And when it did the deed that brought it to court, was it acting on behalf of its principal (owner), or had it wandered off the reservation of its job description? What did it intend? What did it's owner intend?
It doesn't take much imagination to see that you can wade pretty deep into the metaphorical weeds chasing these kinds of questions. Right on up to "I'm sorry, Dave, I'm afraid I can't do that."
I asked the professor why not, at least in the initial stages of big autonomous applications, like self-driving cars, which will certainly result in accidents and damage, apply strict liability. This would mean that if you manufacture an autonomous car and it runs over somebody, you are on the hook. No ifs ands or buts. No questions about who sold you the software you used in the car, no questions about whether you were careful enough when you decided to use it, no questions about what you could reasonably have foreseen (all of which come into play in garden-variety product liability cases), just pay up. You would of course buy insurance to cover this risk. The insurance company would cover you as long as your safety record was acceptable, but if you got careless, it would drop you and you'd convert your assembly lines to making toasters.
The professor said this would change the questions raised from ones of law to ones of economics. Good, I thought. But I don't think he thought that would be good. In his defense, he's a computer scientist, not an economist, and he was lecturing on legal theories at the law school.
I'm not an economist either, but it seems to me this would be a sensible way to allocate the risks of exploring this brave new world. It was pooling of risk, which is the essence of insurance, that made the Dutch East India Company a success. Ships were getting lost on the long journey to trade with Asia. If your ship made it, great. If not, you were wiped out. So the shipping companies banded together. After that, each shipper bore only its share of the risk of one of the fleet going down. They and their British counterparts prospered and opened up not only trade but the world. (Also, abhorrent monopoly abuses and, in the case of the English, slave trade, but that's for another essay.)
The law is elegant and sometimes almost magical. It strives gallantly to equitably allocate responsibility for the way we conduct ourselves. But it is slow, slow slow. Cases take years to come to fruition, and even then they may decide only a small part of the legal question. One piece of the puzzle. It can take decades for the picture in the mosaic to come into focus.
The law, by its nature, follows. Technology, by its nature, leads. I suggest we let the risk-pooling model of the East India Company set the sails of technology explorers. The law will catch up eventually. That will be a good thing. But it doesn't seem to me to be a good idea to put lawyers at the helm of the ship that sets out to discover the new world.
Well, I won't back down.
No, I won't back down.
You can stand me up at the gates of hell.
But I won't back down.
---Tom Petty
Stand up for yourself. Don't let them roll over you. Don't back down.
That fierce self-reliance, that determination not to be bullied, is deep inside us. Deep in our culture, our mythology, our DNA. In the Darwinian past, it was almost certainly an adaptive trait. Who knows today. Does it make us more likely to survive or to be the victim of road rage? Like the woman in Las Vegas the other day who, when harassed by another driver, took her daughter home, got her son (and his gun), and went looking for the bastard. She found him. He killed her.
The desire for revenge is the first cousin to the instinct to stand your ground. Instead of washing over you in a rush of adrenalin, it smolders inside you. Sometimes for a very long time. Years. Why is that? What good does it do? What good did it ever do? Maybe if, when we all lived in caves, you lay in wait for and disposed of the thug who beat you up some time ago, you saved yourself another beating. Nowadays circumstances are almost never like that. There is rarely someone lying in wait for us with murderous intent. We're just mad about some wrong--perhaps just a verbal slight--and we want to get even.
A lot has been written about how our base brains are the ones at the steering wheel, while our frontal lobes watch out the window and try to make sense of the scenery. We know this. We know that many of our atavistic instincts are maladapted to modern life. Yet we seem unable to kick that primitive, instinctive reactionary out of the driver's seat.
There is something inside us, some aspect of our self-image, that has been riding shotgun with that ancient driver so long we can't imagine anyone else at the wheel. If not him, who? And who would I be then? Caspar milquetoast. The skinny boy at the beach getting sand kicked in his face by the muscled hulk with a gorgeous woman on each arm?
The problem--the conscious problem, anyway, the one of which we are daily and painfully aware--isn't just our base-brain instincts, it's our self image. Every time we look in the emotional mirror, we see our weaknesses. We're certain others can sniff them out if we're not careful. We're certain we'll be abused if we don't stand our ground. Doormats, that's what well be. Who wants to be a doormat?
Is that what would happen? We're not fighting for food and mates the way we used to. Life (and gene propagation) is much less a zero sum game than it used to be. We don't have to take from one another. For most of us, there's plenty to go around. And yet we act like every slight must be redressed or we will perish.
What happens when a driver cuts you off and gives you the finger and you do nothing, you just slow down and let him go on his psychotic way? Your heart-rate spikes. You feel a little lightheaded. All that lasts about a minute, and then you start thinking again about what's for dinner. Versus maybe never making it home for dinner again.
Road rage is an easy illustration. It's quick and dramatic. Easy to get caught up in. Also pretty easy to pass up if you try. But what about the thousand cuts of daily life from people you can't avoid, people who won't drive on and be forgotten, people whose very presence daily remind you of the indignity, real or imagined, you have suffered at their hands? Must not they be dealt with?
Yes. But it is not they who must be confronted. It's that little fanatic in the driver's seat beside you. That primitive version of you. We are cruel to one another. Casually. Constantly. If you rise to the bait every time, if you let your un-evolved self pick your route, you'll spend most of your life going in the wrong direction.
When I sit down to write, I am Scrooge haunted by Marley. The sins of my past rattle like a long chain. Sins of both commission and omission. I have left loved-ones behind. I have abandoned them, and they haunt me.
The loved ones in this case are my unpublished novels. I worked hard on them and sent them out to agents and once, through a fine agent, to publishers. I waited with boyish hopefulness that was gradually deflated by damnation with great praise. The writing was wonderful, the story was intriguing, but...
If they had just said, "Are you kidding me, this is crap," it would be easy not to think about the stories that now languish in my metaphorical desk drawer. But they made it sound like the stories were so close that it's hard to not go back and try to make them better, to give them each another shot. Of course, making your work better is what good writers do. Then there is clinging obsessively to a pitiful excuse for a novel. Which is which? How do you know?
Eventually I move on. After a point, I just don't have anything more to give a story. I've said what I wanted to say. Even if no one else will ever see it. It does not make me feel good to keep saying it. I feel like my father giving me lectures. He used to say the same thing a million different ways. It was boring to listen to.
I write to tell some story that's in me and wants to come out. The first draft is the most fun for me. The story exposes itself. I'm like a medium in a seance. I close my eyes at the keyboard and something speaks for me.
Maybe that's the problem. Maybe I've tapped into the wrong netherworld.
I want to have others read my stories. I want them to be published. But I don't that to be why I write. For one thing, that would make for a lot of frustration. Who wants to do something that just produces frustration?
When I'm writing, I'm happy in some way I don't even understand myself. I think about those old novels, those ghosts. I've read how others worked on a project for a decade before they finally got it published. I don't think I can do that. A couple of years is enough. Then it's time to move on. To try to capture lightening in some other bottle. To lay down the chain of my past and pick up the story of my future.
