Digital Personhood? The Status of Autonomous Software Agents in Private Law

Abstract

Already today in the economy and in society, autonomous software agents, i.e. mathematically formalized information flows, are attributed social identity and ability to act under certain conditions. Due to social action attribution, they have become non-human members of society. They pose three new liability risks: (1) the autonomy risk, which has its origin in stand-alone “decisions” taken by the software agents, (2) the association risk, which is due to the close cooperation between people and software agents, and (3) the network risk that occurs when computer systems operate in close integration with other computer systems. These risks pose a challenge for private law: to define a new legal status for autonomous digital information systems—however not simply as complete legal personhood of software agents, human-computer associations or multi-agent systems respectively. Rather, in response to each of the three risks, a legal status should be granted to each of the algorithmic types that is carefully calibrated to their specific role. Three new forms of legal status for autonomous software agents are presented here: (1) actor with limited legal personhood, (2) member of a human-machine association, (3) element of a risk pool. For the risk of autonomy, an adequate response would be to recognize the software agents as legal actors with partial capability. Their autonomous choices should be legally binding, and these should, if found to be unlawful, trigger liability consequences. Software agents thereby are given a limited legal subjectivity, namely as representatives who conclude contracts for others. At the same time, they are to be recognized as legally capable persons in cases of contractual and non-contractual liability, so that the machine misbehavior itself—and not just the behavior of the underlying company—represents a breach of duty for which the company must stand. A possible answer to the association risk would be to give them legal status as a member of a human-machine association. The association itself would be recognized de lege ferenda as the legal subject of attribution for actions, rights and obligations. Finally, the answer to the network risk would be to define a risk pool, laid out autonomously according to liability law. The risk pool would define the legal status of the algorithms as part of a comprehensive digital information flow, with the liability of the pool resulting in the case of unlawful conduct of the pool.