As the conglomerate formerly known as Google gets ready to spin off moonshots like self-driving cars and the Calico longevity project in a bid to become the most futuristic conglomerate of all time, it's worth taking a look at the oddest ways in which it could get sued. Companies being sued over product defects is par for the course; companies being sued over their robots is less so—but perhaps it will be the way of the future.
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We talked to Ryan Calo, a law professor at the University of Washington, widely considered to be an eminent robotics law expert, about the weirdest ways that Alphabet/Google might get sued.1.Robot Medical MalpracticeThe Google life sciences division and Johnson & Johnson partnered up back in March to work on surgical robotics technology. Teleoperated robotic surgery isn't new: it's been around for at least 20 years. It was approved by the FDA in 2000, after it was analogized to laparoscopic surgery—"bandaid" or "keyhole" surgery where a small camera allows surgeons to operate on a patient through a very small incision in the body.But it's actually very different from laparoscopic surgery. Robotic surgery introduces a host of other issues. For example, a robot might experience a glitch mid-surgery, which forces its team to then shut down the robot, pull it out of the patient, and then re-enter. The whole thing keeps the patient under anesthesia for a longer period of time and raises the risk of infection, among other things.
Image: Samuel Bendet, US Air Force/Wiki
Robot medical malpractice isn't just weird because there's robots involved, it's weird because medical malpractice law centers around whether the physician acted in a way that the community of physicians deems to be standard. In some cases, this means that the medical care must stand up to the current state of the art in technology. These standards shift all the time as science and medicine improve. But a robot, which would be designed under the supervision of physicians, freezes into code and hardware the specific standard of the moment.
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For example, if Johnson & Johnson and Google develop an appendectomy robot, it would be based on whatever appendectomy specialists do today. Years from now, if physicians move away from that procedure, and the robots don't, could that possibly open Google up to medical malpractice lawsuits?2.Algorithmic Infliction of Emotional DistressYou can get sued for intentional infliction of emotional distress (IIED) if you intentionally act in an outrageous way that causes severe emotional distress. Media law professor Chip Stewart calls it "the butthurt tort," since it's something that angry plaintiffs often use when things like defamation or privacy law are not available to them. Stewart has noted that IIED is extremely limited nowadays, wrote, "Media law scholars have wondered what's left of the intentional infliction of emotional distress tort after Snyder v. Phelps [a Supreme Court decision in 2011]." It's not a cause of action that usually sticks, but it doesn't stop plaintiff's attorneys from throwing it into lawsuits anyways.Algorithms can be cruel. The Facebook "Year in Review" pop-up can feature a banal selfie, or it can bring up a photo of your recently deceased young daughter. In July, Google had to apologize when Google Photos automatically tagged black people as gorillas.
In those cases, it's hard to argue that those algorithms were intentionally inflicting emotional distress. But not all automated cruelty is an unintentional effect. Note, for example, the time writer Lisa McIntire received a letter from Bank of America that was addressed to "Lisa is a Slut McIntire," the result of a database entry that no one could track back to the source. All of these things point toward the possibility of a future scenario where algorithmic IIED is a valid claim.
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3.Defamatory BotsCan robots defame us? Theoretically, if you put a hundred monkeys on typewriters in a room, you'll eventually get the publication of a false and defamatory statement concerning a person who is harmed due to the statement.Generally speaking, a Google algorithm will pull in content from other sources, rather than creating content on its own. But the way in which it does that can remix the meaning of what it's displaying.Google's News page lists news stories based on an algorithm. It pulls various headlines and photos from different press organizations. The weird thing is that it will mix and match headlines and photos—so a headline that comes from the LA Times might be matched with a photo from USA Today. What happens if Google News matched a headline like "Meet the Man Who Killed Cecil the Lion" with a photo of a different man entirely? Could that guy go after Google?4.Virtual Reality AssaultOne day, computer science professor Tadayoshi Kohno was looking at an app on his smartphone, when all of a sudden, a spider ran across the screen. Or so he thought. He threw his phone on the ground and cracked the screen—only to realize later that the "spider" was actually a pop-up ad for an exterminator."Now, imagine that as applied to augmented reality where an advertiser or malicious attacker or well-meaning developer causes you to fear something there that isn't," said Calo, who is one of Kohno's colleagues. "That seems to technically meet the elements—at least as I teach it, in first year torts—of assault, because you are intentionally creating the apprehension of physical harm."
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The fact that there's nothing there doesn't bar a civil lawsuit for assault. "So the classic example is when you're walking down a trail, and somebody's walking with you and yells 'Watch out, Snake!' And there's no snake, but you turn around and twist your ankle and fall down a cliff. The fact that there wasn't a snake there does not stop it from being assault," said Calo.5.Self-Driving Car AccidentsCalo, a robot law expert, doesn't think this one is particularly interesting. "They're products and they're products built to do a particular thing, which is to get you safely from one point to another. And if they fail to do that, you're going to have a very standard defect claim," he said.
Maybe a self-driving car accident isn't that interesting from a theoretical point of view. But at the very least, it gives us a peek of a dystopian future where hologram ads for personal injury law firms are beamed right into our cyborg eyeballs."You've been hurt in a car wreck and there's no way you can handle the robot doctor's bills on your own!" the android television actress says, unconvincingly. The camera flashes to a personal injury lawyer in a 3D-printed suit and awful tie. He grins toothily. "Here at Smith, Jackson, & Sony-B186, LLC, we can help YOU sue Google. Just call 1-800-ROBOT-CAR with your mind phone. That's 1-800-ROBOT-CAR."
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In those cases, it's hard to argue that those algorithms were intentionally inflicting emotional distress. But not all automated cruelty is an unintentional effect. Note, for example, the time writer Lisa McIntire received a letter from Bank of America that was addressed to "Lisa is a Slut McIntire," the result of a database entry that no one could track back to the source. All of these things point toward the possibility of a future scenario where algorithmic IIED is a valid claim.3. Defamatory BotsCan robots defame us? Theoretically, if you put a hundred monkeys on typewriters in a room, you'll eventually get the publication of a false and defamatory statement concerning a person who is harmed due to the statement.Generally speaking, a Google algorithm will pull in content from other sources, rather than creating content on its own. But the way in which it does that can remix the meaning of what it's displaying.Google's News page lists news stories based on an algorithm. It pulls various headlines and photos from different press organizations. The weird thing is that it will mix and match headlines and photos—so a headline that comes from the LA Times might be matched with a photo from USA Today. What happens if Google News matched a headline like "Meet the Man Who Killed Cecil the Lion" with a photo of a different man entirely? Could that guy go after Google?4. Virtual Reality AssaultOne day, computer science professor Tadayoshi Kohno was looking at an app on his smartphone, when all of a sudden, a spider ran across the screen. Or so he thought. He threw his phone on the ground and cracked the screen—only to realize later that the "spider" was actually a pop-up ad for an exterminator."Now, imagine that as applied to augmented reality where an advertiser or malicious attacker or well-meaning developer causes you to fear something there that isn't," said Calo, who is one of Kohno's colleagues. "That seems to technically meet the elements—at least as I teach it, in first year torts—of assault, because you are intentionally creating the apprehension of physical harm."The fact that there's nothing there doesn't bar a civil lawsuit for assault. "So the classic example is when you're walking down a trail, and somebody's walking with you and yells 'Watch out, Snake!' And there's no snake, but you turn around and twist your ankle and fall down a cliff. The fact that there wasn't a snake there does not stop it from being assault," said Calo.5.Self-Driving Car AccidentsCalo, a robot law expert, doesn't think this one is particularly interesting. "They're products and they're products built to do a particular thing, which is to get you safely from one point to another. And if they fail to do that, you're going to have a very standard defect claim," he said.
