If you program a bot to autonomously buy things online, and some of those things turn out to be illegal, who's liable? We may be about to have the first such test case in Switzerland, after an autonomous buying bot was "seized" by law enforcement.
Two years ago, we wrote about the coming legal questions concerning liability and autonomous vehicles
. Those vehicles are going
to have some
accidents (though, likely fewer than human driven cars) and then there are all sorts of questions about who is liable. Or what if they speed? Who gets the ticket? There are a lot
of legal questions raised by autonomous vehicles. But, of course, it's not just autonomous vehicles raising these questions. With high-frequency trading taking over Wall Street, who is responsible if an algorithm goes haywire?
This question was raised in a slightly different context last month when some London-based Swiss artists, !Mediengruppe Bitnik, presented an exhibition in Zurich of The Darknet: From Memes to Onionland
. Specifically, they had programmed a bot with some Bitcoin to randomly
buy $100 worth of things each week via a darknet market, like Silk Road (in this case, it was actually Agora). The artists' focus was more about the nature of dark markets, and whether or not it makes sense to make them illegal:
The pair see parallels between copyright law and drug laws: “You can enforce laws, but what does that mean for society? Trading is something people have always done without regulation, but today it is regulated,” says ays Weiskopff.
“There have always been darkmarkets in cities, online or offline. These questions need to be explored. But what systems do we have to explore them in? Post Snowden, space for free-thinking online has become limited, and offline is not a lot better.”
But the effort also had some interesting findings, including that the dark markets were fairly reliable:
“The markets copied procedures from Amazon and eBay – their rating and feedback system is so interesting,” adds Smojlo. “With such simple tools you can gain trust. The service level was impressive – we had 12 items and everything arrived.”
“There has been no scam, no rip-off, nothing,” says Weiskopff. “One guy could not deliver a handbag the bot ordered, but he then returned the bitcoins to us.”
But, still, the much more interesting question is about liability in this situation. The Guardian reporter who wrote about this in December spoke to Swiss law enforcement, who noted that the situation was "unusual":
A spokesman for the National Crime Agency, which incorporates the National Cyber Crime Unit, was less philosophical, acknowledging that the question of criminal culpability in the case of a randomised software agent making a purchase of an illegal drug was “very unusual”.
“If the purchase is made in Switzerland, then it’s of course potentially subject to Swiss law, on which we couldn’t comment,” said the NCA. “In the UK, it’s obviously illegal to purchase a prohibited drug (such as ecstasy), but any criminal liability would need to assessed on a case-by-case basis.”
Apparently, that assessment has concluded in this case, because right after the exhibit closed in Switzerland, law enforcement showed up to seize stuff
On the morning of January 12, the day after the three-month exhibition was closed, the public prosecutor's office of St. Gallen seized and sealed our work. It seems, the purpose of the confiscation is to impede an endangerment of third parties through the drugs exhibited by destroying them. This is what we know at present. We believe that the confiscation is an unjustified intervention into freedom of art. We'd also like to thank Kunst Halle St. Gallen for their ongoing support and the wonderful collaboration. Furthermore, we are convinced, that it is an objective of art to shed light on the fringes of society and to pose fundamental contemporary questions.
It appears possible that, in this case, law enforcement was just looking to seize and destroy the contraband
products that were purchased by the bot, and may not then seek further prosecution, but it still does raise some interesting questions. I'm not sure I buy the "unjustified intervention in the freedom of art" argument (though that reminds me of another, unrelated story, of former MIT lecturer Joseph Gibbons, who was recently arrested for robbing banks
, but who is arguing that it was all part of an "art project").
Still, these legal questions are not going away and are only going to become more and more pressing as more and more autonomous systems start popping up in different areas of our lives. The number of different court battles, jurisdictional arguments and fights over who's really liable are likely to be very, very messy -- but absolutely fascinating.