PARDON THE DISRUPTION - CHAPTER SEVEN

POLITICS, ROBOTICS, AND SPACE

a. Legislative Construct for Robotics

The single clearest impediment to the arrival of robotic transportation is not of a technical nature. At present, Nevada, California, and Florida are the only states in the US that have issued licenses for a robotic car. The Nevada Legislature passed laws to regulate robotic cars in March of 2012, and California soon followed. They have made the operators of robotic cars responsible for mechanical failures that result in collisions. The tech crowd is fond of blaming lawyers for their inability to put robotic vehicles on the road. Their misconception stems from believing that lawyers somehow have the power to control the legal process. We don’t; actually, it sits squarely with the legislatures responsible for passing all laws.

While the legislature controls the creation of laws, the political process controls the legislature. Technological advancement occurs dramatically faster than society’s ability to adapt socially to the inevitable changes. Hans Moravec, a professor at Carnegie Mellon University, has demonstrated that machine evolution is proceeding at a rate 10 million times faster than organic evolution. While the scientific method has been used in all things technological and industrial, for some reason we have neglected or refused to apply this powerful approach to things legal and/or political.

Robotic technology may well destroy entire industries in the very foreseeable future. The natural inclination for those who will be directly impacted is to play defense by using the legislative process to inhibit advancement. An example of this is the changes that occurred in the railroads between the 1800s and the 20th century. Originally, trains would require a fireman stationed in the locomotive to be responsible for the fire in the boiler. This was necessary because all locomotives were steam-powered. With the advent of the diesel engine in the mid-1930s, this particular job became completely unnecessary. It wasn’t until 1963 that Arbitration Award Number 282 allowed the railroad industry to remove firemen from locomotives. Examples of this kind of protectionism number literally in the thousands. This same form of protectionism will be leveled directly at the heart of the robotic vehicle. The delay in the implementation of robotic vehicles will occur at the hands of recalcitrant legislators, and will have virtually nothing to do with lawyers per se.

To those who would respond that most politicians are also lawyers I concede this is true. But it is not their status as lawyers that creates the problem. In order to write statutes that will pass Constitutional muster it is necessary to have a lawyer's input early on. Otherwise, inevitable appellate challenges will result in the statute being struck down by the judiciary after a costly and wasteful fight. So what’s the problem?

It is their need to stay elected that will force politicians (lawyer or otherwise) to make protectionist moves on behalf of their voting constituents. Truck drivers will fight to keep robotic vehicles from delivering goods. Waitresses and short order cooks will want to keep all robots out of the fast food industry. Construction workers, plumbers, electricians, concrete finishers, etc. will want to keep robots out of the housing industry. The list could go on and on, but you get the idea. Everyone under threat of displacement by robots will fight to keep them out. Still, while the political process has been known to slow implementation of technology, sooner or later the faster, smaller, cheaper technology will prevail.

The robotic industry will be rightfully concerned with lawsuits when their vehicles crash and kill people. Robots in the workplace will, on occasion, crush or maim their human co-workers. This, once again, is a problem that can be quickly and easily resolved by the legislature. If it’s a hardware failure, then the manufacturer is responsible. If it’s a software failure, then the designers are responsible. The legislature can apply strict liability to the entire robotic industry should it choose to. Understanding their liability, the industry can price their product accordingly to account for the predictable cost of paying for the carnage that will result from the use of their products. The first US robotic parking garage was built in Hoboken, New Jersey. In 2004 an unoccupied Cadillac Seville was dropped 6 stories and destroyed. The following year these same geniuses dropped a Jeep four stories. It was referred to as a “software glitch” and has since been repaired (so they claim). Robotic cars on our freeways will have similar results on occasion.

Before any machine-controlled transportation can be allowed in our society, there need to be legislative milestones demonstrated by the technology. While collisions will be dramatically fewer, they will result in people occasionally being seriously injured and killed. The manufacturer designs and builds the hardware and the software necessary for operation. Any failure of the system will lie at the doorstep of the manufacturer. Res ipsa loquitur is a well-established legal doctrine that means “the facts speak for themselves.” If a company has complete and exclusive control over all aspects of an activity, then they are responsible for any injuries that result from that activity. For example, if a plane crashes, and it is shown that there is no operator error, then the manufacturers are held responsible as a matter of law. If built and maintained properly, a plane does not crash. If we remove pilot error as a possible cause, defects in the plane itself are the only remaining possible reason for the failure. Hence, their liability. The facts speak for themselves.

The same principle can be applied to robotic transportation. The owner of the car will not be operating the vehicle. Since the operation of the vehicle is autonomous, a fault-based tort system would exonerate the owner who was himself nothing more than a passenger. If the manufacturer knows at the inception that it will be held legally responsible for all injuries emanating from the failure of its product, it can build that risk into the price of the robotic car. The legal term for this is “Strict liability in tort.” It already exists for things such as gas water heaters. When they blow up, assuming no tampering, it is always the manufacturer that has to pay for the injuries and deaths. Robotic transportation need be treated no differently for the system to function in a manner that both protects the public and is fair to the manufacturer.

The US Congress has the authority to preempt any and all state statutes to allow for nationwide continuity. Federal enabling statutes could require a black box in all vehicles so that each failure can be easily recognized. They could also require the industry to spread the risk associated with human injury and death by requiring each manufacturer to insure against these risks. This is no different than the current system that requires each operator of a motor vehicle to be insured.

A regulatory agency would monitor the industry to ensure that they correct both hardware and software designs as their failures occur. The Federal Aviation Administration (FAA) is presently responsible for doing this with the aviation industry. By placing tort liability and government regulatory authority on the robotic transportation industry, a society can be assured a demonstrable level of competence as well as a system that will compensate the victims of the occasional failure. Keep in mind, though, that the actual costs are going to be massively lower than the current system. Insuring individual drivers who get distracted, angry, sometimes even drunk is an expensive proposition. Because the issue of liability will no longer be litigated, the only real question will be the amount of damages to the victim.

Litigation costs would literally be cut to less than half their current amount without the necessity of proving liability. It would make compensation of the injured both more reliable and more uniform. If we’re looking for a win-win, this is it. Unfortunately, the robotic manufacturers are run by people. I have yet to encounter a corporate representative that was willing to accept responsibility when someone is seriously hurt or killed. Always the other guy’s fault. The industry will hire an army of lobbyists to ensure they’re not held liable. Earlier, when I said this problem is easily solved, I misspoke. From a conceptual standpoint the solutions are quite evident. But implementation is something else altogether.

We currently suffer from a pay-to-play government. The Supreme Court’s Citizens United decision has guaranteed that this will continue unless rescinded. It was a 5-4 decision, so only one justice would need to retire before the Court had another chance to revisit this poorly conceived decision, which allows unfettered money to enter the political fray with deeply corrosive effects on the idea of one man, one vote. At present, the rich are allowed unlimited, anonymous spending in the political process. In the current caustic environment of American politics, it will be hard to get legislation passed that attempts to open the tech world while still being fair to the average Joe.

b. Legislative Construct for Space

The Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space was adopted by the United Nations on December 13, 1963. It was followed by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which came into effect on October 10, 1967. The latest treaty by the UN concerning the exploitation of space is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies which came into effect on July 11, 1984. The last word in this realm is titled the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, which became operative on December 13, 1996.

It is important to note that each one of these agreements, declarations, and/or treaties came about when the private exploitation of space did not exist. When these agreements were penned, it was assumed that all activities in space would be conducted by sovereign nations. It was for that reason that there was an emphasis that no one could claim property rights to any celestial body. With the developing privatization of space, I believe these treaties need to be revised. There are a number of private corporations committed to spending billions of dollars to develop a space industry. These companies will need some form of protection when they build infrastructure and actually start mining the moon, Mars, and asteroids.

Looking first at the 1963 Declaration of Legal Principles, I have printed the first four mandates contained in this understanding.

Declaration of Legal Principles Governing
the Activities of States in the Exploration
and Use of Outer Space

The General Assembly of the United Nations solemnly declares that in the exploration and use of outer space States should
be guided by the following principles:

1. The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.
2. Outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law.
3. Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
4. The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.

This declaration of legal principles forbids any nation from claiming sovereignty over any “celestial body.” In principle, this is to prevent any nation from attempting to own the moon or Mars. Obviously, any such attempt by an individual nation could lead to outright war. It is important to note this declaration was signed at the height of the cold war, and before man had landed on the moon.

Any private individual or corporation obtains its rights of ownership over property from the sovereign nation in which it is located. There’s the rub. Since no sovereign state has ownership of a celestial body, it is impossible for any private entity to acquire property rights. The concept of private ownership is something recognized and defended by a sovereign government on behalf of the citizens of the state. Since no sovereign nation can lay claim to any celestial body, private industry is prohibited as well. There will be no entity to either register their claim or defend their property rights under the rule of law. The problem only gets worse with the later actions of the UN. What follows is the 1967 treaty.

Treaty on Principles Governing the Activities
of States in the Exploration and Use
of Outer Space, including the Moon
and Other Celestial Bodies

Article II
Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Article VI
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

Article XVI
Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.

In case there was any doubt left after the 1963 understanding, the 1967 treaty could not be more specific. No one, be they a government or a non-governmental entity, may appropriate “the moon and other celestial bodies.” This constitutes an absolute ban. It also forces all governments to control the non-governmental entities within their borders. If a private entity in the United States were to capture an asteroid and bring it within earth’s orbit to mine for minerals, this treaty denies them the right of ownership and forces the United States as the host nation to stop them. Article 16 does provide a kick-out clause, so the United States could withdraw from this treaty, unilaterally, with one year's notice.

If this were not bad enough, the 1984 treaty is an even stronger reiteration of the previous regulations concerning outer space. It should be noted that the U.S. has neither signed nor ratified the 1984 treaty. While it is not binding on the U.S., the damage was already done by the previous two treaties that were signed by the U.S. The relevant paragraphs are printed below.

Agreement Governing the Activities of States
on the Moon and Other Celestial Bodies

Article 1

1. The provisions of this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system, other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies.
2. For the purposes of this Agreement reference to the Moon shall include orbits around or other trajectories to or around it.
3. This Agreement does not apply to extraterrestrial materials which reach the surface of the Earth by natural means.

Article 11

1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.
2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.
3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof.
4. The main purposes of the international regime to be established shall include:
   (a) The orderly and safe development of the natural resources of the Moon;
   (b) The rational management of those resources;
   (c) The expansion of opportunities in the use of those resources;
   (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.

Article 14

1. States Parties to this Agreement shall bear international responsibility for national activities on the Moon, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in this Agreement. States Parties shall ensure that non-governmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party.

Article 20
Any State Party to this Agreement may give notice of its withdrawal from the Agreement one year after its entry into force by written notification to the Secretary-General of the United Nations. Such withdrawal shall take effect one year from the date of receipt of this notification.

When our space pioneers/entrepreneurs capture a ten trillion-dollar asteroid and draw it into Earth’s orbit, who owns it? Article I (3) exempts celestial material that reaches the Earth’s surface by natural means. They are clearly speaking of asteroids. Anyone can lay claim to ownership of an asteroid that naturally falls to earth. An asteroid still in space, however, or asteroid material brought to the surface of the earth by artificial means, cannot be owned by any nation, person, or corporation under this treaty.

Third World developing nations could sue in the world court in a class action demanding that the proceeds of activity be apportioned among them. While well-meaning, the above treaty is basically private property be damned. While it would allow a company to build a moon base, in theory, the materials mined and returned to Earth would not belong to that company, but to “all mankind” – whatever the hell that means. There needs to be some middle ground where private corporations, if they are willing to spend the capital, can enjoy the rewards of a risk of this magnitude.
In 1996 the UN General Assembly adopted the following Declaration. A Declaration is different from a treaty and is often not binding on any particular state. It is more of a reflection of aspirations of the members of the UN. It will solve nothing and is more of the same.

Declaration on International Cooperation in
the Exploration and Use of Outer Space for
the Benefit and in the Interest of All States,
Taking into Particular Account the Needs of
Developing Countries

1. International cooperation in the exploration and use of outer space for peaceful purposes (hereafter “international cooperation”) shall be conducted in accordance with the provisions of international law, including the Charter of the United Nations and the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. It shall be carried out for the benefit and in the interest of all States, irrespective of their degree of economic, social or scientific and technological development, and shall be the province of all mankind. Particular account should be taken of the needs of developing countries.

2. States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned as, for example, with intellectual property rights.

3. All States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities.

4. International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development.

This latest UN declaration makes reference to previous treaties and understandings. It then goes on to say that the benefits from space need to be carried out for the benefit of and in the interest of all States, irrespective of their degree of economic, social or scientific and technological development, and shall be the province of all mankind. What does this mean? Are Third World countries given the green light to sue for the benefits of space exploration in the event the government or company is unwilling to share? What exactly is an equitable allocation to developing nations by a private company? Keep in mind, none of these countries provided anything to the private company that took all the risk. In the event of a mission failure, the private company could not send a bill to the Third World requesting that they contribute. Now that the private sector is on the verge of going into space, these lofty platitudes need to be replaced with concrete terms. The UN needs to create an agency where private entities can obtain some type of guarantee that they are free to develop and exploit outer space. At present they are being shackled by these vague mandates that do nothing but prohibited entrepreneurs from developing outer space. To allow things to remain otherwise is to invite chaos. This next scenario should give an idea as to why these treaties in present form will quickly become unworkable.