Can Ultron be Prosecuted in Court?

May 11, 2015

Could the International Criminal Court prosecute Ultron for Crimes Against Humanity? Could Ultron be tried in any Court?

Tony Stark and Bruce Banner created Ultron in Avengers Age of Ultron. Ultron attempted to “kill” the computer program Jarvis and then the Avengers shortly after being activated.

Ultron’s following actions range from ripping Ulysses Klaw’s arm off to trying to crack every nuclear code on the planet to attempted genocide all human life.

Could a robot be prosecuted for this long list of crimes?

Ultron is “Artificial Intelligence” gone on a killing spree. Case law examples of AI include “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014). A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.” Id.

Ultron is significantly a higher level of “Artificial Intelligence” than we have in the real world. Ultron invaded the Internet and downloaded himself into multiple bodies, which he could transfer his programming between at will.

Ultron’s plan included launching Sokovia into orbit and dropping the city back on Earth, effectively creating an asteroid strike similar to the one that wiped out the dinosaurs. This plan targeted the citizens of Sokovia to use their city as a weapon, which obviously would displace the citizens of the ill-fated city state.

The Geneva Convention prohibits signing parties to treat non-combatants to hostilities humanely. 1949 U.S.T. LEXIS 484, 3-4. Moreover, acts such as violence against people, murder of any kind, mutilation, cruel treatment, and torture are also prohibited. Id.

There is a significant problem with attempting to prosecute Ultron under the war crimes statute: Ultron is a computer program and does not belong to a country that signed the treaty.

Ultron did purposefully kill or attempt to kill numerous human beings. Bringing traditional murder charges against Ultron are problematic, because a PERSON is guilty of murder when someone intentionally causes the death of another. NY CLS Penal § 125.27. Or as defined at common law, murder is defined as the “killing of a human being with malice aforethought.” See, Black’s Law Dictionary App, 9^th Edition.

Whether or not Ultron is a “person” defines whether or not he can be charged with murder (or attempted murder, or attempted genocide, or mutilation, or torture, or kidnapping).

An area of law that gives guidance on “personhood” is whether or not computer-generated information is “hearsay.” Here is what one Court said about Artificial Intelligence and hearsay:

The initial question is whether information observed on a computer screen, generated not by a human source but setting out the results of a computer program in analyzing data, is hearsay. Rule 801 defines a “statement” as an oral or written verbal expression, or as the nonverbal conduct of a person if intended by the person as a substitute for verbal expression. TEX. R. EVID. 801(a). Arguably, this should constitute such a statement. When the rules were written, computers were not capable of performing such analysis and at most would have provided raw data which would have to be analyzed by a human. Now, the computer program performs the analysis and a human only looks to see what result the program has reached. If the result shown is not the one desired, the human does not perform an independent analysis, but looks for different ways to apply the program to the problem. Under this scenario, there is arguably a statement being made-just not by a human-but by an artificial intelligence.

Without going into the details of this type of analysis, however, as pointed out by the State, several courts of appeals have held that computer-generated information, whether on a display or paper, is simply not hearsay because it falls outside the strict language of the rule. This position is defensible and is apparently the sole position taken in Texas to date for materials not input into a computer and simply printed out, but that result from analysis done by the computer. The statement by Marshall was not hearsay.

Taylor v. State (Tex.Ct.App. 2002) 93 S.W.3d 487, 507-508.

Ultron is way beyond a computer screen displaying information. There is an argument that Ultron had a body, had emotional reactions, and as such he statements were more in line with being human opposed to merely Artificial Intelligence. However, there is the basic fact that Ultron is a robot and not a human being.

Could a Court find that Ultron’s “statements” were by a “person”? Maybe. Could a Court also find that Ultron was a “person” under the law? Not by a strict reading of the law.

If Ultron was not a “person,” then there was no issue with destroying each Ultron drone. As Ultron was not a “person,” there was no duty to attempt arrest of a killer robot.

Now, whether or not the Vision and Scarlet Witch getting married is an advanced retelling of the Pygmalion myth is a tale for another time.

Remember that Time the Inhumans Started a War Because SHIELD Acted like a Nation-State?

Josh Gilliland

May 7, 2015

Agents of SHIELD has ventured into a new legal realm: Foreign Policy. As one could expect, this results in a war.

There are MANY things wrong with the actions taken in “Scars,” both legally and politically. The outcome highlights that foreign policy is best left to the Secretary of State, opposed to spies with aircraft carriers.

SHIELD Acted as a Nation-State

Phil Coulson’s SHIELD and Robert Gonzales’ SHIELD merged into one organization. Coulson would act as the Director and Gonzales’ team as an Executive Board.

Problem: they are accountable to no one. There is a rogue spy agency with a nuclear powered Nimitz aircraft carrier and an underground base that is 1) Not taking orders from the President; 2) Totally ignores the military chain of command; and 3) Has zero Congressional oversight.

This is not acceptable legally. There cannot be a faction of an American military/espionage agency with nuclear weapons roaming the seas. The United States would be on a heighten anti-HYDRA policy after Captain America The Winter Soldier and would have no tolerance of rogue spies who could start a war.

SHIELD acted as if they were a separate nation-state in setting up negotiations with the Inhumans, thus establishing their own foreign policy. There is a substantial problem with this, because the Logan Act prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Worse yet, if Afterlife is in the People’s Republic of China, the PRC will be less than thrilled with 1) super-powered individuals acting like they are a separate country; and 2) Americans entering China to negotiate with the separatists (and in some cases, foreigners illegally living in China without visas). This would be like the United States deciding to enact a trade agreement with Tibet.

The US State Department’s “mission is to shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

SHIELD sending four Quintjets to Afterlife was a strange mix of Commodore Matthew Perry’s gunboat diplomacy in “opening” trade with Japan, seasoned with the San Pebbles meets The Bedford Incident. This gunboat diplomacy without Presidential orders or Congressional approval runs totally against the basic tenants of foreign policy to promote peace, prosperity, and stability in a democratic world.

What could possibly go wrong?

How Not to Start a War

It does not take a William Seward, John Quincy Adams, or Henry Kissinger (or Hank McCoy for that matter) to identify the mistakes SHIELD made in their negotiations with the Inhumans. Here is an outline for how SHIELD could have avoided a war:

Send a letter requesting a neutral meeting place between leaders (Rajkovic, Yalta, Vienna, etc);
Letter should outline SHIELD’s proposal focused on the Inhuman’s concerns, opposed to outright Indexing all of them;
1. Create Memorandum of Agreement to Protect Afterlife from being discovered;
2. Ask Inhumans to document all of their people, to be maintained solely by them (hereinafter Inhuman Census);
3. Inhuman Census to be maintained on paper and never created digitally to protect against hacking and cybersecurity threats;
4. Inhumans will communicate to SHIELD if one of their members begins violating law;
5. Inhumans would provide relevant information in order for SHIELD to capture rouge Inhumans;
6. SHIELD to provide counter-espionage response to those seeking to locate the Inhumans;
7. SHIELD to provide military response if Inhumans threatened by HYDRA, AIM, or other threats

There would be many other issues, but here is the thrust of the Inhuman’s fears: Jiaying was the victim of HYDRA (Nazi) experiments during World War 2. She is fully aware of the dangers of “indexing” people based on race. Gonzales tossing out “we want to Index all of you” had to sound like a nightmare.

How to Start a War

Jiaying murdered Robert Gonzales with Terrigen Crystal Mist. This singular act of murder would promise an ICBM to be launched at Afterlife with Jiaying’s name on it.

Why respond to murder with nuclear weapons? Because Jiaying proved Terrigen Crystals could be used to commit genocide of the human race by killing Robert Gonzales. The Inhumans demonstrated how to weaponize Terrigen Crystals that would both kill all humans within their range and transform anyone with Inhuman DNA into “monsters.”

Jiaying proved all the Inhumans are exactly that: inhuman. The rest of humanity would not respond well to the possibility of either being 1) killed, or 2) transformed into something Inhuman.

The threat of genocide does not bring out the best in people. The only response to a hegemonic threat is to destroy those threatening to wipe out your existence. In effect, Jiaying created the worst possible situation that would lead to her people being blown off the face of the Earth.

Now, would a President bother seeking a Declaration of War from Congress? Maybe if the Inhumans were actually their own country. Any Congressional authorization of force would likely be a “Force Bill,” similar to those issued to fight the Barbary Pirates or the Klan. China would either need to agree to the attack or the US would need to beg that China not demand immediate repayment of US debt. However, given the threat of extinction, a diplomatic solution likely could be reached if the United States acted unilaterally to prevent seven billion people from being exterminated.

An “Inhuman War” would make life at the United Nations complex in explaining why a small village in China was vaporized. The US Ambassador to the UN would likely employ a mix of Adlai Stevenson and James Baker in handling the response. The Ambassador would channel Stevenson with a Cuban Missile Crisis style presentation on how Terrigen Crystal Mist is a genocidal weapon AND Baker in rallying an international response similar to the Persian Gulf War.

None of this would end well. Inhumans would be hunted down because Jiaying decided to declare war on the human race after Robert Gonzales insulted her by comparing their HYDRA scars.

Fear is the Real Enemy

Wars start out of fear. Both SHIELD and the Inhumans had significant fear about each other. SHIELD absolutely should NOT have been attempting to craft their own foreign policy without the US Government. However, Jiaying’s murder of Gonzales would ignite a fuse that would end with Afterlife being a crater.

None of this is what SHIELD is supposed to be. SHIELD is supposed to be the good guys who save the day, not start a war through gunboat diplomacy.

Let’s get back to basics: Have a story arc about stopping The Leader, or Kree spies on Earth, or even AIM. Let’s have the heroes follow the Constitution and in the words of Captain America, “be what SHIELD is supposed to be.”

What is Iron Man and Hulk’s Liability for Creating a Murder-bot?

Josh Gilliland

May 4, 2015

Ultron has no strings on him, but Tony Stark and Bruce Banner certainly are tangled up in liability for building genocidal Artificial Intelligence.

Stark and Banner had the goal of putting a suit of armor around the world. However, the end result did not go according to plan. What would be their liability?

Ultron arguably is a product based on unknown alien technology (an Infinity Stone). The purpose of Ultron was to protect humanity. One theory for victims of Ultron to sue Stark Industries, the Avengers, plus Tony Stark and Bruce Banner individually, would be on products liability.

In New York state, a manufacturer is strictly liable for injuries for a design defect where:

(1) That at the time of the occurrence the product is being used…for the purpose and in the manner normally intended;

(2) That if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger; and

(3) That by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.”

Voss v. Black & Decker Mfg. Co. (1983) 59 N.Y.2d 102, 106-107.

Plaintiffs can also argue that a product is defective because of a mistake in the manufacturing process, improper design, or because of inadequate warning. Id.

Traditional products liability analysis goes out the window because Ultron is not like a saw that cut off someone’s arm, but an intelligent robot that decided to destroy humanity. Without engaging in a discussion of whether Ultron qualifies as a human being, his actions are self-directed based on independent thought. As such, no one is “using” Ultron like a product. Would that independent thought cut the strings of product liability?

One argument would be to sue Stark and Banner for improper design. They used an Infinity Stone they did not fully understand, thus could not design a safe global security product. However, a stronger argument can be made that the use of the Infinity Stone was not of just improper design, but strict liability for engaging in an ulta-hazardous activity.

Tony Stark admitted that he was a “mad scientist” and Banner should embrace it. This statement shows a strong desire to engage in inherently dangerous activity. In New York (and many other states), one who engages in inherently dangerous activities is held liable without fault for injury caused to a neighboring property with or without trespass. Continental Ins. Co. v. Great Lakes Dredge & Dock Co. (App.Div. 1994) 624 N.Y.S.2d 335, 336. The traditional example is using TNT to blow up a tree stump, which then lands on a neighboring house. Furthermore, being a government contractor engaged in public work does not provide it immunity to liability. Id.

A court could easily find that conducting experiments with alien technology that can control human minds to build weaponized Artificial Intelligence would be an ultra-hazardous activity. The fact Ultron goes on a global murder-spree to create an extinction level event only shows how inherently dangerous it was to experiment and create Ultron. As such, the issue is not one of foreseeable harm from negligent conduct, but one of strict liability for Ultron’s destruction in South Korea, Africa, and Sokovia.

Could Scarlet Witch Become a United States Citizen?

Josh Gilliland

May 4, 2015

Could the Wanda Maximoff, the Scarlet Witch, from Avengers Age of Ultron become a naturalized citizen of the United States?

The Hexing Case History

The Scarlet Witch is from the fictional Eastern European country of Sokovia. Wanda and her brother were orphaned after a missile made by Stark Enterprises killed their family. These events would have taken place long before the first Iron Man film and Stark’s putting a stop to Obadiah Stane’s supplying advanced weapons to terrorists.

Wanda and her brother Pietro Maximoff VOLUNTEERED for Baron Wolfgang von Strucker to experiment on them. Volunteering to become a super-powered weapon of HYDRA does not look good on an application for citizenship. Further lowering her success of becoming a US citizen would be admitting she volunteered for human medical experiments to get revenge on Tony Stark.

Scarlet Witch sided with Ultron out of a desire to harm Tony Stark. However, after finding out Ultron’s plan was to commit genocide on the human race, she turned on Ultron.

Assembling the Avenger’s Application

The Scarlet Witch could apply for a US Green Card based on her employment as an Avenger. Wanda would certainly qualify as an “alien of extraordinary ability” under question 1a of Form I-140.

The Application for Naturalization is Form N-400. Good Moral Character is a requirement to apply for citizenship, as stated in “Who Is Eligible for Naturalization?”. The US Code defines “good moral character” when the Attorney General finds there is not deportable conduct as “conclusive evidence of good moral character.” 8 USCS § 1427(d).

The document specifically states “terrorist acts” or “Any crime against a person with intent to harm” are examples of possible bad moral character. The Application specifically asks applicants if they have at “you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” INS Form N-400.

The Scarlet Witch’s involvement with HYDRA could seriously compromise her ability to become a US citizen. Gaining super powers from terrorists who attempted “purification” of people based on data analytics would be a red flag for an INS Agent. Being a member of a terrorist organization has been enough to prosecute someone for fraudulently applying for citizenship. United States v. Damrah (6th Cir. 2005) 412 F.3d 618, 621.

Ultron is a similar problem. Scarlet Witch might not have known Ultron’s goal was genocide of life on Earth, but she still wanted revenge on Tony Stark. It took the realization that Ultron was trying to destroy humanity for the Twins to switch sides to help the Avengers.

Helping save the world would be a huge mitigating factor for the Scarlet Witch’s application for citizenship. However, an immigration lawyer would have their work cut out for them in representing Wanda Maximoff.

Jemma Simmons is the New Punisher

Josh Gilliland

April 29, 2015

Jemma Simmons planned to murder Grant Ward with a “splinter bomb” that would cause Ward to disintegrate as if exposed to the destructive force of a Diviner in the Agents of SHIELD episode “The Dirty Half Dozen.” This was murder at the most basic level of common law that was premeditated with malice aforethought. Agent Simmons truly transformed herself from Agent of SHIELD to the Punisher.

Make no mistake, Grant Ward has a body count that includes AT LEAST 5 SHIELD Agents 4 soldiers, 2 guards, 2 Airmen, 1 Senator (his brother), and parents (plus possible other family members). Ward has committed treason and international terrorism. There is no question that Ward has earned himself a death sentence by his long list of crimes.

The problem is Jemma Simmons is not supposed to be the judge, jury, and executioner. Agent Simmons has given herself the same moral standing as Frank Castle with her plan to kill Grant Ward that resulted in the death of Sunil Bakshi. Worse yet, it is bad when the terrorist who killed his own brother (a US Senator) gives you a lesson on morality after you kill someone.

Let’s be clear: Simmons murdered Bakshi under the doctrine of transferred intent. Simmons intended to murder Ward, but instead killed Bakshi, who attempted to save Ward. The intent to kill Ward would be “transferred” to Bakshi. This makes Simmons not just guilty of the attempted murder of Ward, but the murder of Bakshi.

Jemma Simmons turning into a murderer is directly connected to SHIELD no longer being the “Strategic Homeland Intervention Enforcement Logistics Division,” but a bunch of mercenaries since Captain America The Winter Soldier. It is true that they tried maintaining their mission to fight HYDRA (and other international terrorism), but SHIELD itself is no longer taking orders from the US Government. Law enforcement is a thing of the past. Upholding the Constitution is ignored in the name of security. Personal foreign policies are forged in violation of the Logan Act and totally ignore the War Powers Act, let alone the chain of command. These are all bad traits that result in heroic characters becoming shadows of their former selves.

How should this change? SHIELD should go back to its roots as quickly as possible after Avengers Age of Ultron. SHIELD should be about upholding the law, opposed to taking the law into one’s own hands. Save that for when the Punisher appears in a future season of Daredevil.

Batty Crimes on Gotham

Josh Gilliland

April 28, 2015

The Gotham episode “The Anvil or the Hammer,” taught us the following legal lessons in bad decision making:

The Gotham PD have not read the 4th Amendment. No one gets a search warrant for anything, like searching a suspect’s apartment;

Barbara Kean is either a) an accessory to three murders; b) insane c) both;

The Fox Club has the crimes Professor Whitebread said would NEVER be on a Bar Exam; and

Edward Nigma is a murder.

Riddle Me This: Who Needs a Search Warrant to Enter an Apartment?

Answer: The Police!

Detectives Gordon and Bullock entered the Ogre’s apartment after getting a tip from a prostitute the Ogre maimed nine years earlier. The goal was to save Barbara Kean from the suspected serial killer.

Did the police need to get a warrant? Calling the duty judge would take time in the 24-hour window since Kean’s abduction. The 4^th Amendment requires a search warrant for the police to enter someone’s home, unless there are “exigent circumstances.” The threat to Kean’s life arguably was an imminent and ongoing danger to life, so Gordon and Bullock have a strong argument for violating the 4^th Amendment.

Is Barbara Batty?

Barbara Kean telling the Ogre to kill her parents does not fall under the necessity defense. You cannot get other people killed to save yourself. That is exactly what Barbara did with her parricide (and butler-cide). There is no question she was the proximate cause of these three murders.

The Ogre was the one who did the actual killing, however, “but for” Barbara telling the Ogre to kill her parents, no murders would have taken place. Barbara’s actions take her from tortured hostage to accessory by the willful targeting of others for death.

Could Barbara argue insanity defense? That she lost her mind from fear? Maybe, but that likely will show she is not competent to stand trial and would spend her time in a state mental hospital.

What Does the Fox Say?

Way back while studying for the California Bar Exam, the great Criminal Law Professor Charles Whitebread said you would never see a bar exam question involving bestiality, buggery, or any other funky sex crime.

Gotham went there.

That will be one surreal arraignment.

The Riddler’s Odyssey

Murder does not win the heart of a girl. Edward Nigma laid in wait, confronted an off duty police officer, and stabbed him. Nigma then cut up the body with an ax, took it to the police station, melted it down, and then crushed the bones.

It does not take much of a riddle to see that is murder.

Wayne Enterprises

There is no question Wayne Enterprises is breaking a large number of Federal, state, and international laws. There is a good bet they are also violating the Foreign Corrupt Practices Act, but we do not yet know enough about their business practices to know for sure.

The Fonz Would Not Be Cool with Jiaying Sending Mr. Hyde to Milwaukee

Josh Gilliland

April 23, 2015

Jiaying ordering Calvin “Mr. Hyde” Zabo to be dropped off in Milwaukee would not have a “Happy Days” ending on Agents of SHIELD. Jiaying’s willful indifference to the damage that Cal could wreck upon anyone doing a pilgrimage to the Shotz Brewery could subject her to criminal liability. In short, a jury would find Jiaying’s statement, “those people are not my concern,” to be not “cool.”

As Jiaying will learn, liability for the reckless endangerment of others cannot be avoided as easily as Chuck Cunningham.

Taking Cal to Arnold’s

“Mr. Hyde” is a highly unstable individual with super strength as a result from experimenting on himself. Cal’s actions on Agents of SHIELD have included unlawful human experimentation; murder; committing treason by providing HYDRA a Diviner (a WMD); forming a criminal conspiracy with super-powered humans to attack a high school; and an attempted mass casualty event by broadcasting Angar the Screamer over an AM radio channel (OK, maybe not mass casualty, but a few).

Cal is also mentally unhinged. Skye/Daisy recognized the danger in simply dropping Cal off in Milwaukee like an abandoned puppy. When confronted with the fact that Cal is dangerous and would go on a rampage, Jiaying’s reply simply was “those people are not my concern.”

I Found My Liability on Blueberry Hill

Wisconsin defines Recklessly Endangering Safety as follows:

(1) FIRST-DEGREE RECKLESSLY ENDANGERING SAFETY.Whoever recklessly endangers another’s safety under circumstances which show utter disregard for human life is guilty of a Class F felony.

(2) SECOND-DEGREE RECKLESSLY ENDANGERING SAFETY.Whoever recklessly endangers another’s safety is guilty of a Class G felony.Sub. (2) is new. It creates the offense of endangering safety by criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S].

Wis. Stat. § 941.30.

Criminal recklessness is defined when someone creates “an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.” Wis. Stat. § 939.24.

Jiaying having Gordon teleport to Milwaukee and leave Mr. Hyde to rampage demonstrates an utter disregard for human life. Jiaying’s actions are purposeful and with the knowledge that Cal will start injuring others out of anger. A jury would find such conduct inhuman if innocent people were injured after abandoning Cal, showing there was a substantial risk for Mr. Hyde to injure others and that Jiaying knew of the risk, but decided to engage in the conduct anyway.

Now, here is a question: Was the Fonz an Inhuman? He could control the jukebox with the snap of his fingers and win the hearts of the ladies at will. If Fonzie was an Inhuman, his powers did not save him from jumping the shark.

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