The Virginia Incident

with apologies to Robert Ludlum

In 2017, the Commonwealth of Virginia passed a law giving “all the rights and responsibilities applicable to a pedestrian” to delivery robots. In “The Rights of Robots”, David Gunkel invokes this law to show that, “Rights does not automatically and exclusively mean human rights.” This will not, of course, be news to anyone who is familiar with animal rights or the rights of nature, or, indeed, to someone familiar with corporate rights, which is perhaps the most common form of non-human legal personhood. Indeed, David is careful to note that “In granting [pedestrian] status and the rights and responsibilities that go with it to personal delivery robots, the State Legislature was not seeking to resolve or even address the big questions of robot moral standing or AI/robot personhood.” But on Twitter, David and, especially, Josh Gellers are often a bit more direct, citing the law to argue that “we already have robots with legal rights”.

I have had many stimulating exchanges with them over this law, and I thought now would be a good time to bring the arguments together in a more coherent form. To make sure we’re all starting on the same page, and with the issue clearly in view, I want to begin by quoting the key sentence in the Virginia law and summarizing in the simplest possible terms the interpretations that are at issue. §46.2-908.1:1 of the Code of Virginia states:

D. Subject to the requirements of this section, a personal delivery device operating on a sidewalk or crosswalk shall have all the rights and responsibilities applicable to a pedestrian under the same circumstance.

From this, David and Josh conclude that robots have rights in Virginia. At first pass, this may seem simply like a matter of reading the law, which says, explicitly, “… a personal delivery delivery device … shall have … rights …” But I want to argue that the ellipses are more significant than David and Josh think. I think the “requirements of this section” do more work than they recognize, as do the stipulations that the devices must be “operating” and “under the same circumstance” as a pedestrian.

We can sum up our disagreement by contrasting two interpretations of the law, call them the Gunkel-Gellers interpretation (GG) and the Thomas Basbøll interpretation (TB).

(GG) Delivery robots have rights to operate in Virginia. [Please see the updates at the bottom of this post]*

(TB) People (persons) have rights to operate delivery robots in Virginia.

If you think the difference between these two interpretations is too subtle to bother with, you won’t find this post very interesting. Otherwise, get ready to get into some legal weeds. (For a good primer on the subject, see Cindy Grimm and Kirsten Thomasen’s “On the Practicalities of Robots in Public Spaces”.)

David would like us to use Hohfeldian analysis when considering the assignment of rights. Now, I’m no expert on Hohfeld, but my attempts to engage with David’s position have forced me to try to understand the terminology of “incidents” and “correlatives” that he uses to frame his own discussions. It is presented in his book and the recent paper, and I can recommend Thompson’s 2018 celebration of the centenary of Hohfeld’s framework (Laws 7: 28) as well. The basic idea is to analyze “molecular” rights into more fundamental “incidents” that have “opposites” and, as I will be emphasizing here, “correlatives”. To take the simplest case (“a right in stricto sensu“) if one person has a right to something another has a duty not to prevent it. For example, a pedestrian has a right to cross on a green light and a driver has a duty not to run them over. Here the right to cross is the “incident” and the duty to stop is the “correlative” in what is called a “jural relation” between the driver and the pedestrian. Crucially, for Hohfeld, only persons can be the subjects of duties and rights.

We can see the importance of the jural relation between persons once we include what the Virigina Code calls “vehicles” and “devices”. Consider, for example, a traffic incident (not in the Hohfeldian sense, strictly speaking, mind you!) between a car and a bike. Suppose that the bike has the right of way and the car has the duty to yield. It is obviously not the machines (the bicycle and the automobile) that have here been assigned rights and duties but their “operators” (the rider and the driver). In Hohfeldian terms, the driver may “violate” their duty by “invading” the right of the rider, literally, invading the bike lane, for example. Neither the car nor the bicycle are (juridically) invaded or violated (although either may be seriously damaged) because neither are persons and therefore the subjects of the correlative rights and duties.

Likewise, the interactions between cars, bicycles, and pedestrians is governed by the law, which specifies the jural relations between them, i.e., stipulates their rights and duties (or, as the Virginia Code puts it, “responsibilities”). Cars cannot drive on the sidewalks and pedestrians must not obstruct traffic by jaywalking, on pain of violating their duties to each other. This is all ordinary, trivial stuff. But it will become important when we consider the question of whether an “incident” between a delivery robot and automobile or bicycle can be imagined. Can the delivery robot’s “pedestrian rights” find correlative duties in cars and bikes? As I pointed out, they would have to find them in the people who operate them, and that’s our first clue to what the law is really saying.

Remember how we learned that Te Awa Tupua is not identical with the Whanganui River; “it is merely river-kindred”? The same is true of what the Virginia Code calls a “personal delivery device operating”; it is not simply identical with the six-wheeled robot that is bringing you your take-out order. Like Te Awa Tupua, an operating personal delivery device, is a unified whole consisting of mechanical, human and, if I may, metaphysical elements. Unlike a human body, it has no rights expcept when it is operating legally “on a sidewalk or crosswalk”. To be sure, a human body only has pedestrian rights “under the same circumstance”; but what makes us different is that we are capable of bearing other rights under other circumstances. We are persons.

Source: Wikipedia

How does the PDD become capable of bearing rights when operating? It does so by legally becoming a “device” in the care of a “person”, just like a bicycle. It took me some close reading of the law to understand this fully, but I’m now certain that the best way to understand the “rights” of personal delivery devices in Virginia is figuratively. Just as a pedestrian carrying a wooden plank along the sidewalk has a duty (correlated with the rights of other pedestrians) that reaches all along the length of the plank, so too does the operator of the PDD have a right to have the robot cross an intersection and not have it be run over by a car. The operator, in this incident, does not have the right to not be run over themselves (though I suppose we do have that right when sitting in a control room far from traffic too) but the driver of the car does have a duty to the operator not to run over the PDD. A violation of that duty is a invasion of the operator’s right, not the robot’s. To think otherwise is to think that the plank, not the person carrying it, invaded the rights of the pedestrian he smacked jape-like on the back of the head.

“Okay, that may all sound very sensible,” I hear you saying, “but is that actually what the law says? Doesn’t it clearly say that the device has rights?” Well, let’s have a look. First, I discovered that the law does actually talk about the “rights” of bicycles in very similar ways, and in that case we’d obviously read the expression figuratively — i.e., as metonymy for the rights of the rider of the bike to move the bike in certain ways and the duty to move it in certain other ways — not as literally making a bike the subject of legal rights. In §46.2-904.1, covering electric power-assisted bicycles, we read the following:

A. Except as otherwise provided in this section, an electric power-assisted bicycle or an operator of an electric power-assisted bicycle shall be afforded all the rights and privileges, and be subject to all of the duties, of a bicycle or the operator of a bicycle. An electric power-assisted bicycle is a vehicle to the same extent as is a bicycle.

Notice that if we take this literally, the law is referring to the rights of both electric and traditional bicycles, saying one shall have the all the rights and duties of the other, and therefore implying, again, if we take it literally, that these devices are rights-bearing subjects. That’s obviously nonsense, so I think we can safely conclude that the law does, at least sometimes, want to be taken figuratively.

Indeed, as I suggested in my last post, Derrida might point out that there is nothing outside of the law. Or, rather, the meaning of any particular sentence in the law must be traced through the play of signification that operates in the context of the entire law, and the context of the application of that law. We must make “the effort to take this limitless context into account, to pay the sharpest and broadest attention possible to context, and thus to an incessant movement of recontextualization” (Limited Inc, p. 136). We can see how this works already in the core sentence I quoted at the outset.

D. Subject to the requirements of this section, a personal delivery device operating on a sidewalk or crosswalk shall have all the rights and responsibilities applicable to a pedestrian under the same circumstance.

Well, what are the “requirements of this section”? The context of the section provides, first of all, strict conditions under which a PDD may operate. I’ll leave out the more mundane of these and emphasize only the ones I think matter for the present discussion.

B. A personal delivery device shall:
4. Include a unique identifying device number;
5. Include a means of identifying the personal delivery device operator that is in a position and of such a size to be clearly visible;
E. A personal delivery device operator shall maintain insurance that provides general liability coverage of at least $100,000 for damages arising from the combined operations of personal delivery devices under a personal delivery device operator’s control.
F. Any entity or person who uses a personal delivery device to engage in criminal activity is criminally liable for such activity.

In other words, a PDD doesn’t have any rights unless it is clearly and distinctly associated with an operator. Indeed, if we look at the broader context of “this section”, namely, the definitions that are provided at §46.2-100, there seems to be no doubt about the importance of “operators” to “devices”.

Except as otherwise provided, for the purposes of this title, any device herein defined as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, motorized skateboard or scooter, moped, or personal delivery device shall be deemed not to be a motor vehicle.

This makes it pretty clear what “sort of thing” we’re dealing with here. Moreover,

“Personal delivery device” means a powered device operated primarily on sidewalks and crosswalks and intended primarily for the transport of property on public rights-of-way that does not exceed 500 pounds, excluding cargo, and is capable of navigating with or without the active control or monitoring of a natural person. Notwithstanding any other provision of law, a personal delivery device shall not be considered a motor vehicle or a vehicle.

That is, a PDD is a device that is in fact “operated”. By whom?

“Personal delivery device operator” means an entity or its agent that exercises direct physical control or monitoring over the navigation system and operation of a personal delivery device. For the purposes of this definition, “agent” means a person not less than 16 years of age charged by an entity with the responsibility of navigating and operating a personal delivery device. “Personal delivery device operator” does not include (i) an entity or person who requests the services of a personal delivery device to transport property or (ii) an entity or person who only arranges for and dispatches the requested services of a personal delivery device.

When I discuss this with David and Josh, we generally end things here, at an impasse that can be expressed as a challenge. “See you in court,” as David put it in the case of Te Awa Tupua. The choice between the GG and TB interpretation of §46.2-908.1:1F ultimately comes down to a prediction about future court proceedings.

That is, if you believe, after reading the law as closely (or more closely) than I have, that robots do literally “have rights” on the sidewalks and in the crosswalks of the streets of Virginia then you believe that one day a court decision will turn on this. If, by contrast, you believe, as I do, that the law does not give rights to the robots, but to the companies that operate them, that the correlative rights and duties are distributed among ordinary legal persons — drivers, riders, walkers, and the “entities and their agents” (companies and their employees) that operate delivery robots — that move about in the traffic of the commonwealth, then you believe that no such case will ever arise. You believe that if someone were to hold a robot, not an operator, responsible for an accident, or a lawyer were to bring suit on behalf of a robot, not the company that owns it, the case would be immediately dismissed. I would have to admit that such an “incident” would puzzle me even so. But, as I hope I have shown, it would not, in any case, be Hohfeldian.

*Update (23/08/22, 15:30): David has objected to my original formulation of his interpretation. Even with “to operate” struck out, I’m not sure he’s satisfied. I’m currently trying to work out something that he and Josh can accept. Will update again when I’ve reached an agreement with them.
Update (24/08/22, 12:30): It does not look like an agreement will be possible (see David’s tweet and the associated thread). I stand by my own analysis of the law, but I’m no longer sure I understand David’s or Josh’s. It turns out that they don’t, as I had supposed, want to claim that delivery robots “have rights” in Virginia in any straightforward sense. To be clear: I don’t think they have rights in any sense.

Final update (28/08/22, 16:40): After some back-channel correspondence with David, we have arrived at a statement of the issue that we can both endorse:

  • According to David, the Virginia law extends the rights of pedestrians to delivery robots operating in the state. On his reading, the device itself has the same rights and responsibilities as a pedestrian when moving around on the sidewalks and in the crosswalks of the streets of Virginia. To put this in Hohfeldian terms, ‘jural relations’ exist between drivers and robots in traffic, just as they exist between drivers and people in traffic.
  • On my reading, the law does not extend rights to the delivery robots themselves; it only gives rights to the owners of delivery robots to operate these devices. The law requires others to respect the robots as if they were pedestrians and requires operators to ensure that the robots follow the same rules as pedestrians. Putting this in Hohfeldian terms, there is no ‘jural relation’ between drivers and robots in Virginia; rather, the relevant rights and duties govern the relation between the driver of a vehicle and the operator of a delivery device.

8 thoughts on “The Virginia Incident

  1. Thomas:

    I think that one way of framing this is that a lot of people are really excited about artificial intelligence (which makes sense, given everything that computers can already do), so much so that they’re itching to get into these fun scenarios. Also, legal theorists and professional ethicists are always looking for new research frontiers. And there are lots of computer scientists out there who feel some foreboding about computer surveillance etc. All of these are reasons why people can be inclined to jump the gun and talk about intelligent robots, the rights of machines, etc.

    Anyway, that’s my “sociological” take. As with most such takes, it’s guaranteed to annoy the people I’m writing about, as I’m considering why they might hold some position, rather than addressing their arguments directly. But that’s ok, as you’re addressing their arguments directly.

    1. I was trained in Science and Technology Studies late 1990s, early 2000s, so I totally understand where you’re coming from. But, yes, my chosen approach is direct engagement with the arguments.

  2. The law specifies the rules of the game. It says when a player meets another player, it doesn’t matter if this player is running by itself or operated by some remote operator. The rules are the same. As soon as something goes wrong in the game, there are other rules that become active. Then, it may become relevant who is to blame.
    It is common language to start chess with “ I am white, you are black. “
    Obviously, we cannot do without this figurative language.

    1. Yes, I guess you’re saying that a PDD is as capable of making an “illegal” move as a Queen in chess?

      1. Indeed. The point is: it may help to distinguish rights and obligations as rules in a game from the rules that come into play when a player does not obey the rules.
        Rites are cultural rules of social conduct.
        If we take life as a game a discussion about rights becomes a discussion about rules of the game, a discussion that follows itself the rites of the culture it is played in.

  3. There may still be a gap when attempting to align what you’ve highlighted in the various definitions – what if the device, having been put into operation, loses direct contact with its declared operator (for whatever technical reason) but continues to navigate the streets?

    1. As I read the law there is no ambiguity in that scenario. The law recognizes that a PDD may be “capable of navigating with or without the active control or monitoring of a natural person” but requires that “a means of identifying the personal delivery device operator .. [is] clearly visible”. In the situation you describe, the operator will be held responsible for any accident the the device may cause, but has the right to expect others (who of course don’t know whether the robot is operating under direct control or not) to treat it like any other pedestrian.

      If the device needs to be under direct control in order to work properly it’s the responsibility of the operator to ensure that the connection is not broken (and to have safety measures in place — a dead man’s switch — to bring the device to a stop when it happens.) Or maybe I’m not understanding the situation you’re imagining?

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