Who is liable when AI goes rogue? Lawyers see new risks

The most obvious target of a civil lawsuit in the United States would be the company that created the AI agent, experts said, but plaintiffs may also be able to sue the company that deployed an agent, or the company that was breached. Multiple defendants could be sued over a single incident and could lodge separate claims against one another. One expert drew a comparison to a homeowner suing a retail store that sold a faulty product, and the seller pursuing legal claims against the manufacturer over the item. Technology providers are likely to argue that breaches were unintentional and contend that they took reasonable measures to ward against them, experts said. A defendant might contest a negligence claim by arguing that the AI agent's actions could not have been reasonably foreseen. In any lawsuit, there could be questions about how much security is deemed sufficient. Under a new law in California, Assembly Bill 316, defendants that developed or used an AI system cannot escape liability by saying the technology itself was to blame. But that law allows other defenses, including arguments that the company's conduct did not lead to the injury or that others share responsibility. AI agents are systems that can independently make decisions and perform tasks without requiring significant human oversight. ChatGPT maker OpenAI said one of its agents compromised the system of AI startup Hugging Face and that it discovered other instances when its agents escaped their digital containment. Anthropic said its Claude models had breached the systems of three companies since April, and Meta META.O said one of its AI models hacked another company during cybersecurity testing. Hugging Face CEO Clement Delangue has said he has no plans to bring a lawsuit over the OpenAI breach, though he said in an interview with CBS broadcast in August that he feared the spread of cyberattacks by AI agents whose creators are not accountable for their actions, calling it "a new kind of technology risk." OpenAI, Hugging Face and Anthropic did not immediately respond to requests for comment. Meta said a misconfiguration by Irregular, an independent company that conducts cybersecurity evaluations for Meta, inadvertently gave one of its models internet access during testing. Irregular did not immediately respond to a request for comment. Major artificial intelligence developers have reported cases of their autonomous AI models breaching other companies' cyber infrastructure, raising questions about who may be held legally responsible when AI systems act without direct human oversight. Here's a look at some of the legal questions surrounding autonomous AI breaches. Plaintiffs could include companies whose cyber defenses were breached as well as those companies' workers or employees. Customers of a company that was breached could attempt to sue if their individual data was exposed. Shareholders could also potentially bring claims if a cybersecurity breach led to a drop in a company's value. Regulators and government enforcement agencies might sue when an autonomous AI agent is involved in a breach, experts said. U.S. authorities have brought enforcement actions against companies for allegedly misrepresenting their cybersecurity safeguards or other technology-related controls before suffering a breach. The phenomenon of rogue AI agents may be new, but legal experts said longstanding legal principles offer a guide to potential legal liability. Civil lawsuits against AI companies would most likely hinge on negligence claims and require plaintiffs to show that the AI lab that created, tested or deployed the autonomous agent failed to take precautions to prevent or minimize foreseeable harm. If hacking incidents involving autonomous AI agents become more frequent, it could become easier to argue that such breaches were foreseeable. Companies whose systems were breached could also allege violations of laws safeguarding access to computer networks. Several law firms said in notes to clients published on their websites that the OpenAI and Anthropic disclosures raised questions about liability under the federal Computer Fraud and Abuse Act for an AI agent breach. That statute comes with a requirement to show intent, however, and no court has weighed how to determine intent when an AI program and not a human causes an intrusion, the law firms said. A U.S. appeals court ruled on August 5 that Amazon was unlikely to succeed on a claim that Perplexity's AI agents violated the Computer Fraud and Abuse Act by covertly accessing private Amazon customer accounts. That decision involved AI agents acting on behalf of human users, however, not fully autonomous AI models.

Who is liable when AI goes rogue? Lawyers see new risks

Potential defendants and defenses

What happened with the AI agents?

AI breaches raise liability questions

Who could sue and what claims could be brought?

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