Now, at last, we get to the good stuff. We’ve laid the foundation and talked about existing law, now it’s time to talk about specific types of non-human intelligences and how the law might treat them.
From the main comic book stories, we can identify three main types of non-human intelligences. The first are individuals from animal species who become intelligent for one reason or another. Gorilla Grodd would be a good example here, but there are also Gorr and the New Men. Then there are genuinely alien intelligences, like the Skrull and Shi’ar, i.e. species we’ve never encountered before. Finally, there are machine and non-biological intelligences like Bastion or one incarnation of The Thinker. Unsurprisingly, the law is likely to treat these categories differently.
I. Elevated Animals
The first category we can safely call “elevated animals,” i.e. species with which we are already familiar and do not generally consider to be sapient, at least not in the way that humans are. Dolphins and chimpanzees may be smart and may even display a lot of human-like characteristics, but we do not, by and large, consider them to be people. The law certainly does not, for good or ill.
So what happens when one of them turns up to be actually intelligent to the point of being able to have real conversations with human people? Who can basically do everything that you or I can do but just happens to be a canid? It seems like that that a being capable of asking for civil rights would probably be granted them, though if the being doing the asking is of a species that is not generally so capable, it seems unlikely that a court would recognize any rights beyond the being in question. So Gorilla Grodd would probably be afforded due process, but that doesn’t mean that we’re emptying out the local zoo’s primate house and getting the former residents into public housing. As most comics stories don’t seem to suggest that elevated animals are naturally occurring or likely to be all that common–though there are exceptions, the courts would probably be content to do a case-by-case analysis here.
II. Alien Species
But entirely new species? Particularly ones that are extraterrestrial in origin? Here it seems likely that the courts would be a little more willing to paint with a broader brush. If an alien showed up exhibiting all the marks of a civilized race, like the Shi’ar, Skrull, or Kree, counting the entire species as being sapient and entitled to civil rights seems plausible. If a race is trying to establish diplomatic relations with human governments, whether or not they count as people seems like a foregone conclusion. But most comic books aren’t generally about space exploration as such, and while both DC and Marvel have extra-terrestrial settings, those races usually discover humanity rather than the other way around, so the borderline cases have not really been explored in comics as much as they have in other kinds of speculative fiction. For example, Alasdair Reynolds Revelation Space series has a species known as the Pattern Jugglers, a kind of collective marine “intelligence” of sorts that spans the entire surface of the ocean worlds where they are found. Individual organisms are basically mindless, but together, they constitute a massive distributed intelligence, after a fashion. The Pattern Jugglers don’t necessarily have anything resembling personality, and there’s some debate in the books about whether they are actually intelligent or are simply massive biological machines used to store recordings of the races they encounter. How’s a court going to treat that? The closest analog in the comics universe is probably Ego the Living Planet, but he still has an identifiable personality and will. Still, being an actual planet, it’s not like a human court is going to try to assert jurisdiction over him, so the point may be moot.
All that by way of saying that as far as comics go, alien intelligences are probably going to fare pretty well legally, because most of them are more or less obviously people.
III. Non-biological Intelligences
The same cannot necessarily be said about non-biological intelligences. Here, the courts may well decide that enough is too much. Sure, we can recognize the personhood of non-humans that are obviously acting like people, but machines? Machines that people manufacture? That can be turned off and on? Whatever else they may be, and however smart they appear, people, as people, aren’t like that. Getting the courts to recognize the personhood of machine intelligences is going to be really tough.
This is in no small part due to the fact that trying to draw the line here is going to be a huge mess. Compared to computer science, biological taxonomy is downright obvious. That’s a dog, and that’s a cat, and even if I don’t know the genetics, the differences are there to see. But deciding which programs are intelligent and which aren’t? Depending on how we present artificial intelligence in our comics, that has the potential to be a lot fuzzier.
If an artificial intelligence is simply a really well-designed, powerful program, even one that can regularly pass a Turing Test, asserting that there is some kind of metaphysical difference between that and a calculator which makes the AI more like a human being than a video game is going to be almost impossible to do with the kind of rigor a court is going to require. Besides, recognizing AI personality raises a whole host of other issues:
If the program is a person, is powering down the computer on which it is running murder? Does a powered-down AI have a right to be powered back on? If the program is copied, do we now have two people? Is deleting one of the copies homicide? If the program is installed on a person’s computer against their will, do they have to take care of it forever or can they delete it? Does introducing a trojan horse constitute assault, or is trespass a better analogy? Is the essence of the being the code, the running program, or what? Does the consciousness reside on the hard drive or in RAM? Maybe the CPU cache? What if the program is installed on a really slow computer? In a theoretical sense it’s still the same program, but is it still intelligent? We don’t even really think about regular programs with this kind of rigor, so something as sophisticated as an AI is likely to make a court draw a bright line that means it doesn’t have to think about that stuff.
On the other hand, if our non-biological intelligence is somehow tied to particular hardware, similar to Asimov’s positronic brain, so that it is more than merely software but an actual artificial brain, that’s a closer case. If a plaintiff can point to a particular physical object, the destruction of which would result in the death of the plaintiff, that’s a lot more like human persons than a program which can run on any compatible hardware. This is particularly true if, as in the case of Data, no one is really quite sure how it works, making the entity more or less unique.
Then there’s the issue of property law. People own computers. They are personal property. Suddenly recognizing that the AI running in my PC has civil rights does weird things to my property interests there, particularly as disposing of the computer would theoretically represent the end of the life of the AI. Might such an AI be immediately guilty of trespass to chattels, giving me the right to “evict” the AI from my computer at will? And since every other computer in the world is owned by someone, where is the AI going to go?
Again, a lot of these questions are dealt with more in science fiction literature than comic books, but enough AI characters show up from time to time that it’s worth thinking about.
So it would seem that how a particular non-human intelligence is treated would depend on what exactly we’re talking about. “Elevated” animals can probably expect a case-by-case recognition of their personality, while intelligent alien species would probably be recognized as persons wholesale, particularly if they act like civilized beings. Non-biological intelligences are going to have a harder time, and traditional AI conceived as intelligent programs running on more-or-less ordinary computer hardware are going to be a tougher sell than some kind of software/hardware amalgam which is categorically different from mundane computers.