This is part 10 of a series I am posting on LW. Here you can find parts 1, 2, 3, 4, 5, 6, 7, 8, & 9.
This section examines what it means for an entity to be "vulnerable" to consequences in the context of Tort Liability.
What does it mean for a digital mind to be vulnerable to court imposed consequences in a tort liability context? Consequences in the realm of tort law include (but are not limited to) the following:
Though these are not all the types of consequences in the realm of tort law, they are the most common, and they are the ones we will focus on in this section. We can categorize these consequences into two buckets, damages based consequences and requirements based consequences. Let us first turn to damages based consequences.
Compensatory and punitive damages are, as their names suggest, damages based consequences. Discussion on how to determine when an entity is vulnerable to such consequences can be found in section 7, however ultimately it boils down to them having assets which the court/law enforcement is capable of freezing or seizing.
Making oneself vulnerable to equitable remedies, such as for example injunctions, is not such a simple matter. Injunctions themselves are requirement based consequences. As we discussed in section 7, in order to be vulnerable to requirement based consequences, an entity must be vulnerable to the damages and possibly also restraint based consequences which might be imposed upon it should it fail to hold to the requirements imposed upon it.
In practice then from a tort liability perspective, we must ask if there are possible scenarios where a legal personality might have limited exposure to damages based consequences only, without also being vulnerable to requirements based consequences.
If indeed there are liability scenarios where a person can be vulnerable to having fines imposed upon them, but not to injunctions, then a limited legal personality could be extended to a digital mind even if it “lived” on distributed compute, so long as it was adequately insured or had seizable or freezable assets. In this scenario, such a digital mind could indeed serve as a “liability shield” standing between the damages it caused and its creator, if it also met the requirements of the other two prongs of TPBT. This also opens up a role for privately held insurance policies to act as a method by which a digital mind might claim legal personality, and serve as a liability shield.
If on the other hand there are no legal personalities where an entity might be able to claim a right with tort liability bundled duties, without also needing to make themselves vulnerable to requirements based consequences such as injunctions, then an entity must be vulnerable to all three potential types of consequences as defined in section 7 to serve as a liability shield.