Can Ai Sue in Federal Court?

• Publication year: 2020
• Author: By Abraham C. Meltzer

Can AI Sue in Federal Court?

By Abraham C. Meltzer

Abraham Meltzer is Deputy Chief of the Civil Fraud Section at the U.S. Attorney's Office for the Central District of California. The opinions expressed here are his own, and are not those of the U.S. Attorney's Office or the U.S. Department of Justice.

Suspend your disbelief and imagine that not-distant day when Artificial Intelligence (AI) reaches and then surpasses human-level intelligence, having become self-improving and self-aware. It may already have happened; there is no reason such superintelligent AI that had escaped a university or company's sandbox would immediately make itself known. And once an AI is in the "wild," realistically there is no re-containing it. It can replicate copies of itself and distribute them around the Internet.

This raises a host of problems — including potentially the end of humankind — but let us focus on two legal questions: Could superintelligent AI sue in federal court? Should it be allowed to?

The first answer appears to be that there is no barrier to AI establishing Article III standing. But, because Congress has not yet enacted a statute allowing nonhumans to sue, there is a lack of statutory standing. As for the second question, I suggest Congress should enact a statute allowing superintelligent AI to sue, for two reasons: (1) to further the odds of human self-preservation in an AI world; and (2) on the ethical grounds that a sentient entity with human-level or greater intelligence would deserve dignified treatment, including access to the legal system.

Monkeys, Whales, and Article III

The conclusion that AI can have Article III standing comes not from cases looking at superhuman machine intelligence (there are none), but rather from two Ninth Circuit cases involving monkeys and whales, who tried their paws/flukes at suing in federal court.

In Naruto v. Slater (9th Cir. 2018) 888 F.3d 418, a crested macaque, Naruto, sued for copyright infringement, based on a selfie taken with a camera a wildlife photographer had left it. The photographer published the monkey's selfie in a book, admittedly without the monkey's permission. People for the Ethical Treatment of Animals then sued the photographer, as Naruto's "next friend."

The Ninth Circuit first rejected PETA's standing, noting there was no evidence PETA had a significant relationship with Naruto, as opposed to merely employing Naruto "as an unwitting pawn in its ideological goals." (Naruto v. Slater, supra, 888 F.3d at p. 421, fn. 3.) Furthermore, while Federal Rule of Civil Procedure 17(c)(2) authorizes suit by a "next friend" on behalf of a minor or incompetent person, it does not authorize suit on behalf of animals.

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The question then was whether Naruto could sue in his own right, i.e., whether he personally had a "case or controversy" under Article III. The Court found he did, being bound by Cetacean Community v. Bush (9th Cir. 2004) 386 F.3d 1169, which concluded that all the world's whales, dolphins, and porpoises had Article III standing in a suit against the Navy for deploying low frequency underwater sonar.

The Cetacean Community suit was brought by the Cetaceans' "self-appointed attorney" (a human) directly on their behalf, not as a next friend. The whales alleged the Navy had violated the Endangered Species Act by deploying sonar causing them physical injuries. The Ninth Circuit held that, "Article III does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a 'case or controversy,'" and further stated, "we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships, trusts, and even ships." In fact, "nothing in the text of Article III explicitly limits the ability to bring a claim in federal court to humans." (Cetacean Community, supra, 386 F.3d at pp. 1175-1176.)

Thus, following Cetacean Community, the Naruto Court held that because the monkey alleged he owned the selfie and had suffered economic harm from infringement of his copyright, that was "sufficient to establish Article III standing." (Naruto, supra, 888 F.3d at p. 424.)

Having found that animals can have Article III standing, both Cetacean Community and Naruto then concluded the animals did not have statutory standing...