Self-learning algorithms are gradually dominating more and more aspects of our lives. They do so by performing tasks and reaching decisions that were once reserved exclusively for human beings. And not only that—in certain contexts, their decision-making performance is shown to be superior to that of humans. However, as superior as they may be, self-learning algorithms (also referred to as artificial intelligence (AI) systems, “smart robots,” or “autonomous machines”) can still cause damage.
When determining the liability of a human tortfeasor causing damage, the applicable legal framework is generally that of negligence. To be found negligent, the tortfeasor must have acted in a manner not compliant with the standard of “the reasonable person.” Given the growing similarity of self-learning algorithms to humans in the nature of decisions they make and the type of damages they may cause (for example, a human driver and a driverless vehicle causing similar car accidents), several scholars have proposed the development of a “reasonable algorithm” standard, to be applied to self-learning systems.
To date, however, academia has not attempted to address the practical question of how such a standard might be applied to algorithms, and what the content of analysis ought to be in order to achieve the goals behind tort law of promoting safety and victims’ compensation on the one hand, and achieving the right balance between these goals and encouraging the development of beneficial technologies on the other.
This Article analyzes the “reasonableness” standard used in tort law in the context of the unique qualities, weaknesses, and strengths that algorithms possess comparatively to human actors and also examines whether the reasonableness standard is at all compatible with self-learning algorithms. Concluding that it generally is, the Article’s main contribution is its proposal of a concrete “reasonable algorithm” standard that could be practically applied by decisionmakers. This standard accounts for the differences between human and algorithmic decision-making. The “reasonable algorithm” standard also allows the application of the reasonableness standard to algorithms in a manner that promotes the aims of tort law while avoiding a dampening effect on the development and usage of new, beneficial technologies.
Karni A. Chagal-Feferkorn,
How Can I Tell if My Algorithm Was Reasonable?,
Mich. Tech. L. Rev.
Available at: https://repository.law.umich.edu/mtlr/vol27/iss2/2