“Evolution forged the entirety of sentient life on this planet using only one tool: the mistake.”
If you’re like me (and 3 million other viewers), you tuned in last week for HBO’s season premiere of Westworld, a classic American science fiction western thriller if there ever was one. The show, which takes place in a technologically advanced Wild-West themed amusement park populated by android “hosts,” takes a look at the darkest parts of human nature. If you could do anything you wanted to others and laws of man or nature don’t apply to you, how would you act?
The technology in Westworld, albeit not new, certainly brings up a lot of legal issues. Human androids—made to look and feel and bleed just like real humans—are effectively treated as computers with advanced artificial intelligence and have no “rights” to speak of. But as the show progresses, we see that the hosts are not satisfied with simply existing to serve as shooting targets for rich human guests. (Psh, anyone who has seen Blade Runner could have told you that.) So how would the government regulate the park to ensure human safety? How would liability attach for those injured by hosts or by fellow guests? Would the law require fail safe switches or certain code to prevent a host uprising? Could the government use forfeiture laws to seize hosts? Are hosts property, even if they grow to have their own personality and are self-aware? All apt questions.
After watching this week’s episode, “Reunion,” I was struck by a different question: How would the law address the possibility of creating hosts that look, sound, and act exactly the same as real humans already in existence? In last season’s ninth episode, “The Well-Tempered Clavier,” we learned that one of the main characters, Bernard, is actually a host remade in the image one of the park’s deceased co-founders. Because no one in the park’s staff, save the host’s creator, is aware that the character is a host and not a real person, Bernard is used to perpetrate all sort of fraud (and even murder). Given the potential for widespread abuse, the law would likely need to be updated to protect against this ultimate form of impersonation.
1. Fraud and Identity Theft
Identity theft, whether to steal a person’s money, a company’s proprietary tech, or obtain access to a facility, seems to be the most obvious misuse of host technology. “Identity theft” is defined as “[t]he unlawful taking and use of another person’s identifying information for fraudulent purposes.” Black’s Law Dictionary 863 (10th ed. 2014). Under federal law identity theft is a crime, and any person who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” during or in relation to another enumerated (generally fraud-related) felony, receives an additional two-year sentence. 18 U.S.C.A. § 1028A(a)(1).
Although the term “means of identification” seems to imply the use of an ID card, courts have also held that § 1028A(a)(1) “no doubt covers impersonations” and the use of an ID card is not necessary. United States v. Michael, 882 F.3d 624, 627 (6th Cir. 2018) (use of doctor’s name and ID number); United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017) (“[W]e read the term ‘use’ to require that the defendant attempt to pass him or herself off as another person or purport to take some other action on another person’s behalf.”); United States v. Medlock, 792 F.3d 700, 712 (6th Cir. 2015) (forging a physician’s signature). Therefore, laws relating to identity theft would likely cover the surreptitious use of a lookalike host to perpetrate a fraud; however, federal laws could need to be updated to explicitly outlaw the use of “a person’s likeness” during fraudulent ventures.
2. Criminal Impersonation
Under federal law, it is also illegal to “pretend[] to be an officer or employee acting under the authority of the United States . . ., or in such pretended character demand[] or obtain[] any money, paper, document, or thing of value[.]” 18 U.S.C. § 912. While this statute ostensibly protects against the use of hosts pretending to be federal employees or work for the federal government, it is unclear whether a host could be prosecuted as a non-human or the creator of the host would be subject to indictment. My guess is that (1) the law would be interpreted to necessarily criminalize the indirect use of hosts for such a purpose, (2) Congress would add a law doing so, and (3) prosecutors could bring conspiracy charges against human principal. Problematically, however, this law only extends as far as the authority of the federal government is being “invoked” by the impersonator.
State law, on the other hand, fills that gap. In Washington, for example, it is a felony for a person to do “an act in his or her assumed character with intent to defraud another or for any other unlawful purpose[.]” RCW 9A.60.040(1)(A). See also Cal. Penal Code § 529(a)(3); N.Y. Penal Law § 190.25. And while the human principal may also evade charges directly under these statutes for the host’s actions, many states have criminalized participation in such a fraudulent scheme as well. See N.Y. Penal Law § 190.60 (“A person is guilty of a scheme to defraud in the second degree when he engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons.”).
3. Civil Remedies
While some may take solace in the government clamping down on the use of hosts as lookalikes, the victims of these fraudulent impersonations would also seek a civil remedy. Aside from civil actions stemming from criminal prosecutions of the aforementioned crimes, see Cal. Penal Code § 496(c), and conversion (i.e. civil theft) claims, see Hooten v. State for Use of Cross Cty., 178 S.W. 310, 312 (Ark. 1915) (“Anything which is the subject of property, and is of a personal nature, is the subject of conversion.”), victims of host impersonation could also bring claims for appropriation of likeness under the right of publicity.
To assert such a claim, the plaintiff would have to show “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983) (applying California law). See, e.g., White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1397 (9th Cir. 1992) (“[Defendants] used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features. Without deciding for all purposes when a caricature or impressionistic resemblance might become a ‘likeness,’ we agree with the district court that the robot at issue here was not White’s ‘likeness’ within the meaning of [California law].”). Because state law differs, some statutes may only recognize commercial injury and appropriation, see Nev. Rev. Stat. Ann. § 597.810; Cal. Civ. Code § 3344, but also provide for statutory damages to provide a minimum recovery for non-celebrities and “to discourage such appropriation,” Hetter v. Eighth Judicial Dist. Court of State In & For Cty. of Clark, P.2d 762, 765 (Nev. 1994).
4. Permissible or Legal Uses
While the skeptic in me automatically assumes these lookalike hosts will be used for the worst, there are many possible uses that the government would want to protect. In the event the human consents to the creation of an identical host, no criminal or civil action would or should lie. Non-fraudulent use as stand-ins for actors in movies would negate sick days or delays in shooting. Dignitaries and heads of state would surely have host lookalikes to act as decoys in high security situations. Rich, unethical fathers may even want an identical host to attend their child’s boring recital, a parent-teacher conference, or his spouse’s favorite ballet. These beneficial uses (in addition to those identified graphically in Westworld), however, assume that consent was obtained.
Unauthorized or unconsented to uses of lookalike hosts also have their place in our hypothetical world. Under the First Amendment, appropriation of a person’s likeness for the purpose of parody is expressly protected. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Some states protect the use of a person’s likeness in the context of a dramatic work. See Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992) (applying Washington law). Moreover, celebrity impersonations by hosts used in noncommercial speech are protected under the First Amendment unless done with “actual malice.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001). While the bounds of these uses would have to play out in court, I could imagine that the historical and jurisprudential application of First Amendment protections would apply to irreverent and unauthorized host use as well.
5. Conclusion
While the prospect of perfectly accurate and indistinguishable host lookalikes is terrifying at first glance, it appears the law (as it stands) would protect against malicious use of this technology in fraudulent ways. Federal and state legislatures, however, would definitely look to expand or adjust criminal and civil statutes to address the principal human’s role in any such scheme. Given the close hold that the Delos Corporation (parent corporation and owner of the Westworld park) has over the host technology, when and how the government or victims would become aware of host fraud is another matter entirely. I mean, we’re still waiting for Bernard to fully remember that he is a host and tell someone he isn’t ordered to kill.
Random Thoughts:
- Considering the complexity of all the host-related issues, I think the U.S. Government would establish an agency to regulate hosts. The “Android Administrative Agency” seems like a perfect name, notwithstanding the inevitable “Triple A/AAA” trademark infringement issue.
- It appears that hosts are biologically almost identical to humans. We have not seen any technology to verify who is human and who is host. I think that outside of private places (home, amusement park) that hosts may need identifiable markings or means of identification, just like vehicle license plates.
- Sex plays a big role in Westworld and I can’t even imagine the market for replica celebrity hosts in a brothel. Or maybe celebrities would just cash in and license their rights?
- I would totally send my identical host to the DMV to wait out the line for me. Criminal charges be damned.
- Good thing we aren’t super close to realistic human android technology, right?
