DISRUPTIVE IDEAS,

MODERN TECHNOLOGY
AND THE LAW

RA Dr. Stefan Kirchner, MJI

www.crosslegal.com

The texts in this document have been published online at rladi.com in 2014 and 2015.
They are combined here for the first time and made available free of charge at scribd.com.

Robots in the Workplace: Technical Opportunities and Multilevel Liability

Risks
Reports last week of the death by robot of a man in a Volkswagen car factory
in Germany reminded me of a blog post I wrote in February of this year for
this blog. The man in question was hardly the first to suer such a fate, as
Wikipedia (which actually has a short category of robot-caused deaths) lets
you know: in 1979 Robert Williams was killed by a robot in a Ford factory in
the United States (a case which led to a US$ 15m payment to his family) and
in 1981, Kenji Urada, an engineer at Kawasaki, was killed by a robot in
Japan. It is unclear how many workplace accidents, fatal or otherwise, have
had their cause in faulty programming of incorrect use of a robot. These
cases show, however, that robots, like other powerful tools or vehicles,
continue to provide a risk to those who work with them or who are in their
vicinity. Due to the computerization of a large number of devices, from
household appliances to cars and aircraft, programming errors and user
errors will continue to be relevant legal issues. There is no need to fear robots
per se, but users have to be aware that we are simply talking about tools
which are only as safe as the programmers and users let them be. A key
dierence is the relative lack of experience with robotic devices. I you have
driving experience with regular cars you will understand that it might not be a
good idea to drive a truck through a curve at the same speed as with a racing
car, even if you have never driven a truck or a racing car before. When it
comes to robots, many users are still lacking this basic experience. At the
same time are robots far more programming dependent than tools which you
use and control directly. While programming saves work and time, it also
reduces the interaction between user and device by one level.

Criminal law and tort law will have to take into account the dierent types
and levels of input, interaction and causality of the dierent actors
concerned, i.e. users, companies which select hard- and software, hardware
builders and software programmers. Liability risks can be found on all levels
and in many jurisdictions the law might not yet take into account the
aforementioned dierences between robots and other industrial tools.

The Uber Misunderstanding Part 1:

The Share Economy is not just about Making Money
Yesterday, the Landgericht in Frankfurt am Main stopped UberPop in
Germany. The decision is eective nationwide. It is hardly surprising because
one needs a special license and has to comply with company-related rules in
order to provide taxi services in Germany. This is not much dierent from
running a business anywhere else. But there might have been a
misunderstanding here on the part of Uber drivers. Uber has been critizised
for not employing drivers and drivers complain about not earning enough to
make a living. But is the Share Economy meant to create jobs or isnt it
about using existing resources more eectively?

The question is if Uber is an alternative to Taxi companies or a form of

organized car pooling. For Uber, there might not be a dierence if driver A
accepts a passenger on a route which the driver will drive anyway, e.g. from
a suburb to the city center every now and then, or if driver B tries to earn a
living. Driver A will benefit already if some of his or her costs are cut by the
fact that A can share the costs with the passenger. Neither driver A nor the
passenger have to discuss about how much the passenger should pay, how
to organise the trip etc. In this scenario, Uber is just a platform to organize
car pools more easily. This is a form of share economy: a resource (car, fuel,
roads) will be utilized anyway (by driver A) and the share economy allows
an increase in utilization (by transporting the passenger as well) for an almost
neglible increase (slightly higher fuel consumption of the car due to the
increased weight which is transported) in resource use. But Uber users, both
drivers and passengers, have turned the service into the model used by
driver B. For Uber, this means more profit as well of course, as the number of
rides increases dramatically once Uber is established as an alternative to
taxis in any given market. From a regulatory perspective, this crosses the line
between environmentally sound sharing of resources (which is desirable and
supported, think about car pool lanes) and a challenge to regulation and to
passenger safety. In this moment, Uber (and similar services like Lyft or
Wundercar of course) is no longer about the Share Economoy but simply
about business.

The situation is a bit similar to Ebay. If one occasionally sells something on

Ebay, the seller would not consider this to be a business, but Ebay has been
used to build many businesses. But would anybody who regularly sells items
on Ebay, even if this is considered the primary source of income, to deserve
to be employed by Ebay? Here we see an other issue: Ebay sellers will set a
price and they will be able to find a buyer for that price or not. If they auction
something o they will set a minimum price. Uber works dierently. Uber
does something Ebay does not do: it sets prices. This is a business model
which will not work everywhere. But then it is hardly surprising that there is
an expectation of some kind of employment which is generated among
drivers.

The Uber Misunderstanding Part 2:

How losing a case might have saved Uber a lot of money
In my last post I mentioned yesterdays court judgment which eectively
banned Uber in Germany. But that does not have to mean the end of Uber
and similar services in Germany but it is a wakeup call and a reminder that
more needs to be done. In fact, the court in Frankfurt might have done Uber
a huge service by saving it a lot of money: under German labor law a de facto
working relationship between a worker and a company, even if there is no
work contract, can over time result in an unlimited working contract. The idea
is to benefit workers against abuse. For Uber drivers, who do not set prices
themselves, that can be an important argument in favor for a claim to actual
employment by Uber. This can be expensive.

Taking just the new minimum wage of 8.50 EUR / h which was introduced in
Germany recently and assuming a 48 hour workweek and only the minimum
amount of paid holiday (24 days) and assuming that work also happens on
weekends and holidays, even if we calculate with only the minimum wage
also for holidays, night shifts etc., factoring in obligatory insurance payments
to be made by the employer etc. then the employer will still end up paying (in
the case of standard insurances, an employee with two kids under the age of
18, living in Berlin) more than 25,000 EUR / year. For all practical purposes,
Uber hardly be able to work more economically than any other local taxi
company. That leaves Uber with the markets which are under-serviced by
taxi companies and with a host of regulatory issues, permits etc.

Already last year it has been argued that Ubers current business model does
not have a future in Germany (http://www.lto.de/recht/hintergruende/h/uberpop-taxi-app-service-berlin-rechtswidrig-personenbefoerderung/). For Uber,
while unfortunate in the short run, that might not be the worst thing in the
long run. There are already good taxi apps in Germany and there is a space
for Uber it has to work dierently, though (see also http://www.spiegel.de/
wirtschaft/service/uber-verbot-in-deutschland-wir-brauchen-eine-eigeneloesung-a-1024325.html), because for the time being, lobbying for changes
to transport regulation in Germany is unlikely be successful and it is
unlikely to be enough in order to achieve what Uber wants to achieve.

Robot Ships: Upcoming Legal Challenges

The idea of unmanned, automatically operating (but of course remotely
controllable) ships has been around for decades and the EU has been
funding research on automatic vessels through MUNIN. Thanks to technical
developments high performance artificial intelligences (AIs) might soon
become available on a scale which will make robot ships an economically
sound proposition.

Having worked with seafarers and for their rights for years I am not only
concerned about the threat of job losses for more than a million men and
women worldwide, I certainly feel a certain sadness for the loss of the
nostalgia associated with this line of work. But of course there is a very
serious reason for the development of such vessels beyond mere
economic aspects: the protection of human lives. It is often overlooked that
still today, outside the context of high profile cases which make the news
around the world, seafarers working on board cargo vessels lose their lives
every year. The introduction of automatic vessels might not come overnight
and it is normal that some lines of work disappear or become less important
in terms of the numbers of those engaged in them while new types of work
emerge. The latter is particularly the case today.

My own profession, that of a lawyer, has long been seen as very conservative
and in the minds of many, noble oces and big books still define the legal
profession. But already within the law few years my own operations have
become more mobile and flexible than a lawyer a generation ago might have
been able to imagine. In fact, I regularly tell my students that their generation
of lawyers will have to work in a situation of perpetual change. In training
young lawyers today, I try to prepare them for challenges neither of us can
imagine today. A few years ago, IT lawyers were seen as an exotic species.
Today we are reaching a point at which IT-related issues completely
permeate the law, in a way that might only be surpassed by human rights law
in legal systems in which individual human rights violations can be
challenged by victims on a constitutional level. Change and fast change at
that is the new normal. Lawyers who are capable to not only reacting but
also anticipate future challenges brought about by new technological
developments will be at an advantage when it comes to preparing clients and
protecting their interests in the long run.

Law is reactive in that lawmakers will have to react to new factual

developments. Sometimes it has to deal with risks which are still unknown or
poorly understood but even then there is some factual dimension which
triggers legal thinking.It has been tried to shape society through law, but
these attempts were at best the work of technocrats and at worst the
attempt by dictators to solidify their power at all costs, even when it means
murdering millions. In this sense, it is normal that the law is reacting to new
situations rather than being used to create new situations. Law is societys

tool to react to change. But here is also a risk because law-making

processes can be too slow.

In international shipping law, legal rules have massive economic

implications.The emergence of automatic (or maybe even autonomous?)
maritime vessels will likely be even more disruptive for the maritime industry
than the arrival of container shipping has been. If one recalls the speed with
which containers have changed the shipping and the scope of these
changes, one can only try to imagine the impact robot ships would have on
the industry. Unlike in the case of containers, which already disrupted the
entire business model and the way of operations in shipping, automatic
vessels will require entirely new sets of regulations. SOLAS and STCW might
not make much sense anymore but we will need regulations for the humans
and AIs which will operate ships. A lot of ideas found in these treaties might
still be useful. Other problems might emerge which are unimaginable today.
From a lawyers perspective, we are in a situation which is similar to the
situation in the 1950s and 1960s when international space law emerged
within a very short time. From a practical perspective, the situation is similar
to the time immediately before the disruption of international shipping
through containers. From seafarers rights under the MLC to the training of
land-based ship operators and minimum requirements for ship-operating AIs
and to securing compliance with environmental standards and issues we
cannot imagine today international and domestic shipping law will have to
deal a wide range of issues in order to make automated vessel navigation a
save reality.

Which law governs a space elevator?

A space elevator system consists of a base state on earth and a end point at
at geostationary orbit, connected by a cable and a transport system. Space
elevators are exactly around the corner but new developments in materials
technology appear to make it possible to turn this concept from theory to
reality within the course of the coming decades. In fact, the concept has
become so credible that one of Europes leading quality newspapers,
Frankfurter Allgemeine Zeitung, last October reported on current discussions
among experts, which indicate that it is becoming a real possibility (http://
www.faz.net/aktuell/wissen/weltraum-aufzug-wuerde-die-raumfahrtrevolutionieren-13177163.html?printPagedArticle=true#pageIndex_2).
Because the base station of a future space elevator would ideally be located
on the equator, Latin America can play an important role in the future of
space travel.

From the perspective of international law, the space elevator raises important
questions. Under international law as it is now, national sovereignty extends
from a the center of the earth (where all subterranean national borders meet)
to the so called Krmn line 100 km from the level of the sea. In this area,
national law applies. Above the Krmn line is outer space and international
space law applies. Because the end of the line is a geostationary point in
space, the length of a space elevator has to be approximately 36,000 km.
Most of the space elevator therefore would be in outer space, but it would be
dependent on a part which falls squarely within a national jurisdiction. The
are plans for space elevator base stations at sea. A base station in the high
seas does only solve part of the problem as the base has to fall under some
national jurisdiction because it is the states which have the right to construct
installations under Article 87 (1) (d) of the UNs Law of the Sea Convention.
In outer space, the law of the state in which a vessel is registered applies.
This makes a space elevator the object of a range of legal systems.

It is possible to imagine dierent transport pods, registered in dierent states,

which share a space elevator and which could essentially be parked at either
end of the space elevator. Likewise, dierent vessels could dock at the space
end of the elevator system. Assuming that the elevator infrastructure will
have been constructed and financed by a state or private corporation, an
analogy to existing maritime infrastructure might be useful by comparing
such a system to a canal, like the Kiel, Suez or Panama Canals. Being able to
charge a fee would give the constructing entity an incentive to make the very
high investment. The elevator cable could practically become a toll road to
space with parking lots on either ends. Basing the base station in the high
seas allows universal access to the stars. Given the high costs of a space
elevator system, a likely alternative is the cooperative model used in the
construction and use of the International Space Station (ISS). Like in the case
of space stations, though, it has to be assumed that some states, like China
with the Tiangong space station, will want to go it alone which would raise

the smallest number of legal issues if it were done by a equatorial nation,

such as Brazil. The growing role of private actors in space activities can even
lead to privately constructed and operated space elevator systems. While
many future (legal) questions might hardly be imaginable today, the basic
problems can be solved with international law as it already exists today.

Space Elevator Liability Rules: when do we need them?

A Space Elevator raises a number of issues from the legal perspective. Below
an altitude of 100km national law and international air law apply. Above,
international space law would govern the elevator. Choosing a base station
on land or at sea adds an other level of complexity to this issue. Is the
elevator one structure to which dierent legal rules apply in dierent parts of
the structure? Or is the transport unit which rides along the elevator line a
spacefaring vessel and to simple to be treated no dierent from the way
international law treated the Space Shuttle?

For passengers, this will raise a number of questions. In 2014 the Athens
Convention, which regulates insurance requirements for passenger ships on
international trips. What will be necessary from the perspective of
passengers will be similar liability rules. But while passenger shipping has
been around for centuries prior to the introduction to such rules, strict liability
rules and insurance obligations are likely to make it even more dicult for
start ups to enter the market. This problem might be relatively small given the
overall costs and eorts associated with building and operating a space
elevator but it needs further investigation.

There is, however, one aspect which makes a space elevator fundamentally
dierent from other modes of transport. Unlike even spaceships, the space
elevator system, or at least the first space elevator, will arguably so expensive
that only a concerted eort of multiple actors will be sucient to achieve its
construction and continued operation. At this level, it might make sense to
simply price in a compensation system for accidents but there is one
consideration which is far more important than economic considerations: a
catastrophic failure of the space elevator system could disable not just one
cabin or gondola but the entire system and it could put the future of space
elevator technology as such at risk. Unlike in the case of rocket-based space
exploration, the entire concept would be put in doubt. In addition will the
space elevator at least in the long term aim at a mass tourism market as well,
which leads to dierent safety expectations than one might find among
professional astronauts etc. Therefore the incentive to make a space elevator
work safely is even bigger than in the case of other modes of space
transport.

The first two paragraphs of this text were first published under the Creative Commons
Attribution License (CC-BY) in the Journal of Brief Ideas at http://beta.briefideas.org/ideas/

711826afae9025361fab74142ebe7fc3#sthash.xPpUkA4J.dpuf (DOI: 10.5281/zenodo.15633)

under the title International Law Challenges of Liability Regulation for Space Elevator
Tourism.

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A Polar Code for Fishing Vessels?

The Antarctic Chieftain incident in the waters o Antarctica in early 2015 is a
reminder that shipping in polar conditions remains inherently dangerous. For
many vessels, the future Polar Code, which is currently being developed by
the IMO, will provide higher technical standards which will enhance safety for
trips in Arctic environments. But unlike cargo or passenger vessels, fishing
vessels will not fall under the Polar Code. Therefore it has been suggested in
the wake of the Antarctic Chieftain incident that a Polar Code for Fishing
Vessels should be established as well.

This idea would not be too revolutionary. After all, the Torremolinos
Convention provided somewhat of a parallel to SOLAS and LL for fishing
vessels and the STCW does not apply to fishing vessels but was also
followed by STCW-F. One solution might be to create a protocol to the
Torremolinos Convention. Such a protocol could be based on the Polar Code
and would allow parties to the Torremolinos Convention to add a level of
safety on top of existing rules.

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Expectations and Illusions about Law and Technology

In February 2015, a number of media reported on the case of a woman in
South Korea who had taken a nap on the floor (which is not uncommon in
some Asian countries). Meanwhile, a robotic vacuum cleaner was cleaning
the floor (also not uncommon in tech-loving countries such as South Korea or
Japan). Apparently the robot was unable to make a distinction between the
owners hair on the floor and, well, hair on the floor which has to be cleaned
away resulting in certainly painful and potentially dangerous situation, an
emergency phone call, rescue services being alerted and the story making
the news around the world. If it had been any other household appliance,
even in cases with significant more damage, it would have hardly made the
news beyond the neighborhood at most. Why then is this newsworthy? The
keyword here is of course robot. Household robots are seen as useful tools,
essentially, as smarter versions of your fridge or blender. If the robot would
be any other household appliance, this would hardly make the news. But it is
a robot and many consumers have come to expect more.

One aspect of these expectations are Asimovs three (later four, if one counts
the later zeroth law, which raises questions which go far beyond the scope of
this post) laws of robotics, avoiding harm to humans, following orders (but
not harming anyone), self-preservation (but not at the cost of humans, nor
contrary to orders). Essentially, the three laws ensure the owner-device
relationship we are familiar with from dumb technology. We dont need to
speculate about the exact circumstances of the case in South Korea, but for
many consumers, these three laws, even if they have never heard of them as
such, will play a role. At some point, many of us will consider intelligent
machines to be more intelligent than they actually are. As the understanding
among many users as to how technology we use every day really works
seems to decline, this might become a problem.

The widespread adoption of Asimovs laws in popular culture might lead to

unrealistic expectations and might cause consumers to lower their guard
when it comes to smart consumer electronics. We have to become more
sensitive towards the capabilities of technology, and that means getting a
better understanding. This already has to start in kindergarten. Just the other
day a TV maker informed consumers that the voice control feature makes it
possible to overhear conversations. Well, there is a microphone and a device
which can be hacked. Likewise for your computers webcam. What
conclusions we draw is left to us as consumers but we are also responsible
for making sure we understand the technology we are using. Asimovs three
laws of robotics are an idea which has not been realized in reality. Many,
arguably most of todays robots are not capable of actually implementing the
three laws. This might be dierent with regard to highly advanced systems
but then they still have to know the three laws. As things seem to stand right
now, many or most (maybe all?) robots have not been programmed to obey
the three laws be it because their hardware is insucient to deal with this

12

task or because their programmers, as in the case of military robots, want the
device to be able to harm others in an autonomous manner.

Todays robots do not obey the three laws and if we want those who create
the technology which is in our lives 24/7 to put ethics into coding and
engineering, we have to understand both and have to make consumer
choices adequately.

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OTC Sale of Ulipristal Acetate and the Ethics of Informed Consent

The so called morning after pill contains ulipristal acetate (UA), which is a
s e l e c t i v e p ro g e s t e ro n m o d u l a t o r. ( h t t p : / / w w w. a e r z t e z e i t u n g . d e /
politik_gesellschaft/arzneimittelpolitik/article/855785/notkontrazeption-otcfreigabe-ulipristal.html) The idea behind UA is to prevent a pregnancy(http://
w w w. e m a . e u r o p a . e u / d o c s / e n _ G B / d o c u m e n t _ l i b r a r y / E PA R _ _Product_Information/human/001027/WC500023670.pdf) but it has been
argued that it might well be abortifacient as well.(http://
w w w. w e e k l y s t a n d a rd . c o m / b l o g s / d o e s - d r u g - e l l a - c a u s e abortions_626563.html;http://www.ncbi.nlm.nih.gov/pubmed/21666088) It is
currently discussed in Europe, whether drugs containing UA should be
available without a prescription, i.e., over the counter (OTC). The possibility of
the OTC availability of a potentially abortifacient drug which is marketed as a
contraceptive drug raises concerns with regard to the rights of the patients.

Assuming that all human life begins at conception, morally, ethically and
legally, a distinction is to be made between the prevention of fertilization and
ending a human life before birth. In recent years, the widespread use of intrauterine devices as a form of contraception has blurred the lines between the
prevention of conception and the prevention of nidation. The latter, because it
occurs after fertilization, leads to the death of an unborn human being. Many
women who want to acquire a contraceptive pharmaceutical at the same
time reject the idea of ending the life of a human being. Lacking information
about the This group of women can be at risk of making a choice they would
not have made, would all information have been available to them. By
marketing an abortifacient drug as a contraceptive drug, these consumers
are denied the possibility to exercise their right to informed consent about the
pharmaceutical in question.

This raises a simple yet important ethical question which should have
regulatory consequences: it appears to be a save assumption that a situation
in which a woman demands a post-coital pharmaceutical contraceptive is
hardly free of stress. After all, there is a reason why this kind of
pharmaceutical is also referred to as emergency contraceptive. Against this
background, it needs to be asked whether the regular way in which
information about a pharmaceutical is presented to the patient / consumer,
usually in small print on a thin piece of paper, sucient in such a situation
which is likely experienced as stressful, in particular given the potential for a
threat to a life to the unborn child, which might not have been intended by
the woman in question? Or is there an ethical obligation to advertise the
possible abortifacient eect in a more prominent way? This issue should also
be of interest for both pro life and pro choice camps as a human life
might be at risk and the woman might not have all relevant information to
make a choice.

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In particular in a legal situation in which drugs which contain UA become

available OTC, while abortive drugs which contain the progesteron receptor
antagonist mifespristone (aka RU-486) are not available OTC but only with a
prescription, there is a serious risk that consumers are not fully aware of all
potential eects of UA and end up having an abortion without ever intending
to do so. By making UA available OTC, lawmakers risk ignoring the sanctity
of all human life as well as the right to informed consent with regard to
medical procedures including pharmaceuticals.

15

The Right to Life as Grundnorm of Inter-Species Law and Inter-Stellar

Human Society
It appears likely that one day, be it between me writing these lines and you
reading them or millions of years in the future, humans will contact an other
intelligent species, be it on this planet, maybe in our oceans, or on an other
planet. The need to protect human life both individually with regard to every
human being but also with regard to the human genus requires space
exploration. In order to guarantee survival after a planetary extinction level
even, humankind cannot limit itself to one planet. In the long run, the limited
active time of our sun will require us to become a multi-stellar society as well.
The desire to protect life is inherent in all living creatures we know. Who and
what is alive in principle also wants to stay alive. There are notable
exceptions such as those who lay down their lives for others, but it is the
preservation of human life which drives us, it is the care for animals and
plants which inspires millions of people to work for the preservation of the
natural environment. This desire for life is so inherent that it is the one thing
which most obviously connects us to other living beings, in particular to
members of species which are in principle capable of sentience. For humans
the individual capacity for sentience is not required for the right to life. We
have the right to life because we are living human beings. This inherent desire
for life connects us with other species. While we consider animals not to be
holders of rights but only beneficiaries of human laws, as a court in the
United States just decided a few days ago, we will not be able to treat
intelligent non-humans like we treat animals today. In fact, given the
sentience and capability to feel pain of many animals, we might want to
rethink the way we treat animals today. When making contact with an other
sentient and intelligent life-form, be it alien or Terran, biological or machine,
animal, hybrid or other, we will have to find a way to establish fundamental
protocols for behavior. In the past, first contacts between dierent groups of
humans have often led to bloodshed. Even in our day some indigenous
peoples first contact with what the majority would consider civilization are
violent. It is in our own interest to avoid such a confrontation with an
unknown intelligent sentient non-human species. Such a protocol for
behavior requires a solid foundation. The right to life of every sentient
intelligent being, which might well be a marine mammal living in Earths
oceans today, can serve as such a fundamental norm or Grundnorm, to use
Kelsens term. The application of such a norm, however, requires mutual
recognition as being worthy of such protection. In many conflicts, attempts
are made to dehumanize the enemy and our anthropocentric, perspective
excludes even the most intelligent animals from the entire concept of rights.
In any contact with an other sentient and intelligent non-human species an
uncertain amount of time will elapse before the concept of mutual rights and
obligations will be established and for us to be recognized as being worthy of
not being killed immediately. That said, there is no guarantee that the other
species would even have concepts similar to human ideas of law or rights.
Apart from the fact that we share the same university it is therefore simply life

16

itself which can form a basis for the creation of inter-species law life and
the idea that all that lives wants to be alive. As humankind moves forward
this fundamental truth should not be forgotten. The respect for the lives of
others is the reason why we have to help those who are in need today, why
we have to work towards ensuring that everybody has access to food, water,
health care and education, that everybody benefits from peace, development
and democratic institutions which can secure these goods in the long run. It
is also the reason why we have to strive to become a spacefaring species.
We do not have to choose, rather, we have to do everything at the same time,
feed the hungry, heal the sick, end war and unite as a species and to
move forward. In the words of Fulton Sheen, life is worth living. An
unbreakable respect for the life of the other can not only make this planet a
better place, it can provide the fundament on which to build the future of
humankind, on Earth and beyond.

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