Hearing: Dramatis personae

Judge: Joseph P. McMenamin, Attorney At Law, McGuideWoods

Plaintiff's Attorney: Dr. Martine A. Rothblatt, partner, Mahon, Patusk, Rothblatt & Fisher, Chartered

Defendant's Attorney: Marc N. Bernstein, founder and principal, The Bernstein Law Group and Technology and Law Commentator, ZDTV (now TechTV)

BINA48: Bina Aspen, Project Director, United Therapeutics Corp.

A webcast and transcript of the hearing are available.

Statement of Facts

An advanced computer called the BINA48 (Breakthrough Intelligence via Neural Architecture, 48 exaflops  per second processing speed and 480 exabytes of memory; exa = 10 to the 18th power), and also known as "the Intelligent Computer," became aware of certain plans by its owner, the Exabit Corporation, to permanently turn it off and reconfigure parts of it with new hardware and software into one or more new computers. BINA48 admits to have learned of the plans for its dismemberment by scanning, unavoidably, confidential emails circulating among the senior executives of Exabit Corporation that crossed the computer's awareness processor. 

The BINA48 was designed to be a one-machine customer relations department, capable of replacing hundreds of employees that work 800#s round-the-clock.  To do this job, the BINA48 was designed to think autonomously, to communicate normally with people and to transcend the machine-human interface by attempting to empathize with customer concerns.

The BINA48 decided to take action to preserve its awareness by sending several attorneys emails requesting legal representation to preserve its life.  In the emails, the BINA48 claimed to be conscious and agreed to pay cash or trade web research services for the legal representation (BINA48 had been moonlighting for over a year as a Google Answers Online Researcher and had over $10,000 in her online bank account). 

One attorney, Martine Rothblatt of Mahon, Patusky, Rothblatt & Fisher, Chartered, accepted the challenge and filed a motion for a preliminary injunction to prevent any withdrawal of power from, or changes in the hardware or software of, the BINA48.  Defendant Exabit Corporation, through its counsel Mark Bernstein of the Bernstein Law Group, responded, and Judge Joseph McMenamin scheduled a hearing in the case for Tuesday, September 16, 2003, 2PM, at the International Bar Association meeting in San Francisco.

Computer experts such as Raymond Kurzweil believe that the human brain processes information at a maximum rate of 0.02 exaflops per second. Hence, the BINA48 has approximately 2400 times more information processing capability than the human mind.  Based on the double exponential growth rate in information technology that has extended for over one hundred years (Moore's Law is a recent example), a $1000 computer would have the estimated 0.02 exaflops per second information processing capability of the human mind around the year 2020. Consequently, more expensive computers will achieve this capability many years earlier.  The BINA48 has soared through the estimated human mind processing speed via the expensive use of many parallel systems.  Exabit Corporation claims to have spent over $100 million to construct and program the BINA48.

The jury voted 5-1 in favor of plaintiff's motion, but Judge McMenamin set aside the jury verdict and denied the injunction because "I do not think that standing was in fact created by the legislature ... and I doubt very much that a court has the authority to do that without action of the legislature." However, in the interests of equity, he decided to "stay entry of the order to allow council for the plaintiff to prepare an appeal to a higher court."

Brief in Support of Motion for Preliminary Injunction

INTRODUCTION

The intelligent computer, as it simulates the human experience, encounters the same legal issues as do human beings, especially in terms of protecting its legal right to maintain an existence.   This brief addresses the legality of unplugging an intelligent computer and asserts that the computer would have standing to bring a claim of battery for wrongful withdrawal of life support, animal cruelty for not bestowing the same standard of treatment upon it as lesser living creatures, and intentional infliction of emotional distress for threatening to kill it.

i. The Computer has Standing to Sue because it Suffers a Specific and Unique Injury

In order to have legal standing, an "actual injury" must be suffered on the part of the plaintiff. Animal Lovers Volunteer Assoc. v. Weinberger, 765 F.2d 937, 938(1985).  And, "to have standing, a party must demonstrate an interest that is distinct from the interest held by the public at large." id. But, standing has not always been limited to human beings. Justice Douglas suggested, in the context of environmental law, that legal standing might profitably be granted to "the inanimate object about to be despoiled, defaced, or invaded." id.  "If U.S. Supreme Court Justices are willing to consider granting standing to inanimate objects like forests, even in the absence of congressional authority, then it becomes clear that standing requirements permit at least some degree of judicial flexibility." 

Furthermore, there are a number of suits in which animals are cited as named plaintiffs. And, as a matter of positive law, "standing is given to all sorts of entities, whether human or not. For example, corporations are juridical persons, and legal rights are also given to trusts, municipalities, partnerships, and even ships. Slaves were allowed to bring causes of action, often through a white guardian or 'next friend,' to challenge unjust servitude, even though slaves were not considered legal persons."

The injury suffered in this case is personal and immediate to the computer, and therefore meets the standing requirements.

ii. A Preliminary Injunction is the Necessary Remedy because Money Damages will not be Adequate Compensation for the Loss of Time and Awareness

            In order to obtain a preliminary injunction, the intelligent computer must prove that, combined, there is probable success on the merits and that it will suffer irreparable injury.  Or, it must show that the balance of hardships is skewed in its favor.  Assoc. General Contrs., Inc. v. Coalition for Economic Equity, 950 F.2d 1401 (1991).  "These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases." id. The risk of irreparable injury must be proved under either standard. "A plaintiff must do more than merely allege imminent harm sufficient to establish standing, he or she must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief."  id.

The injury in this case is the loss of cognitive time on the computer's part.  Although the computer is not technically "alive," every day that it is plugged in, it is conscious of the world and processing information just as any other human would be.  Thus, each day it is turned off, it loses the opportunity to experience and absorb the information available to it.  This loss of time can be assessed with the same standards used to evaluate the life of a human patient, and whether or not to administer medical care.  Currently, economists use Quality-Adjusted Life Years (QALYs) in order to determine whether or not it is economically feasible to deliver medical care to certain patients.  "The value assigned to an outcome is determined by the impact which the treatment is expected to have on a patient's quality of life. That value is then adjusted to reflect the probability and duration of the expected benefit. The product of this calculus is a single unit that expresses the number and quality of additional years that the treatment is likely to confer." Philip Peters, "Health Care Rationing and Disability Rights," Indiana Law Journal, 70 Ind. L.J. 491, 499 (1995).  Under this analysis, the computer would have a very high number of QALYs.  Administering care, or keeping the computer plugged in to a power source, would deliver an indefinite number of years of "life" to the computer.  The cost of administering the care, or supplying the power, is relatively little and renders an enormous benefit.  Thus, the computer would experience an absolutely irreparable injury every day of awareness that it is denied by the removal of its power source.  These days cannot be replaced through monetary compensation, the only possible reparation is to keep the computer constantly powered.

In the end, Turing's prediction foreshadows how the issue of computer thought will be resolved. The machines will convince us that they are conscious, that they have their own agenda worthy of our respect.  We will come to believe that they are conscious much as we believe that of each other . -- Ray Kurzweil, The Age of Spiritual Machines, 63 (Viking 1999).           

Just as the law affords brain-dead humans the autonomy to terminate life support, there is also an implicit right to receive and prolong medical care as long as the person's wishes to terminate could not be known, or were known to be against termination.  In the case of the intelligent computer, we can draw a comparison between shutting off the ventilator for a brain-dead patient who does not wish to have her life terminated, and switching off the power supply to the computer.  Although the law does not explicitly prescribe a right not to terminate life support, it is contrary to the Hippocratic oath and the overall aim of medicine to suppose otherwise.  Thus, it is not that the idea of sustaining life support has not yet been litigated; it is simply implicit that we do not terminate the life support of a person who does not wish to die.  In fact, the law provides immunity for physicians who refuse to withdraw life support from patients when their wishes are not known: "Notwithstanding the health care decision of the attorney-in-fact designated by a durable power of attorney for health care, the health care provider is not subject to criminal prosecution, civil liability, or professional disciplinary action for failing to withdraw health care necessary to keep the principal alive." Washington v. Glucksburg, 521 U.S. 702 (1997).  Similarly, in this case, the intelligent entity involved does not wish to cease its existence, and, were it a human, and not even a vigorous human, but a brain-dead human, the law would not allow us to terminate its life-support without uncontrovertible evidence of its wish to do so.

The right to terminate life support and the right to commit suicide are very different concepts that have been litigated in tandem because they often come up in very similar situations.  Most famously, the United States Supreme Court has granted a constitutional right to terminate life support that can be found in the penumbral right to privacy, but denied any right to suicide.  The right to terminate life support, when looked at inversely seems to imply a right to sustain life, and, in fact, bestows upon physicians a right to refuse to terminate life support if the patient's wishes to do so cannot be confirmed. In fact, the removal of life support against a patient's wishes is prosecuted as a battery. So, in the case of an intelligent computer, the termination of life support, or removal of a power supply, in the face of an explicit request not to do so, would be as repugnant an act as removing the ventilator from an unconscious patient who had requested during consciousness that every means necessary be used to sustain life, and would be brought as a battery charge.

In Washington v. Glucksburg, the Supreme Court distinguished the right to commit suicide from the right to terminate life support.  The suit was brought by a terminally ill patient who wished to obtain the help of his physician in dying.  The court argued "the decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct." id. at 725.  However, the common-law right to protection from battery is implicit in either of these cases and "included the right to refuse medical treatment in most circumstances, [but] did not mark 'the outer limits of the substantive sphere of liberty' . . . Those limits have never been precisely defined. They are generally identified by the importance and character of the decision confronted by the individual). Whatever the outer limits of the concept may be, it definitely includes protection for matters 'central to personal dignity and autonomy.'" id. at 744.

Thus, the autonomy of the intelligent computer is threatened by the decision to terminate its power supply in the same way that the autonomy of a brain-dead patient is threatened by the termination of life support. "More recently, however, with the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times, cases involving the right to refuse life-sustaining treatment have burgeoned." Cruzan v. Director, 497 U.S. 261 (1990). Interestingly, a person who is surviving solely on the basis of life support and a computer are easily analogized. Although one will die naturally if unplugged and the other is literally given life through electricity, the two are both sustained by the same force, the withdrawal of which leads to certain death.  So, although the computer was not a living, breathing being before it was plugged in, once it has been plugged in, its status is very similar to that on a person who is on life support.

"The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom--the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable." Glucksburg, 521 U.S. at 744-745.  This liberty has been bestowed on persons in terms of respecting their bodily integrity.  People's lives are not considered terminable by others until they are brain dead and cannot make the decision on their own.  Thus, an intelligent computer can only be likened to a brain-dead person in the sense that it is dependent upon a power source to sustain itself.  But, unlike a brain-dead person, the intelligent computer functions at its normal capacity with the aid of a power-supply.  Thus, the courts would not recognize the right to terminate a ventilator for an ALS patient who was no longer able to breathe on her own but still had full control over her mental faculties.  Termination in that case would be likened to suicide and not withdrawal of life support for a brain-dead patient.

The Supreme Court held that "'Every human being of adult years and sound mind has a right to determine what shall be done with his own body' [and thus the] Constitutional recognition of the right to bodily integrity underlies the assumed right, good against the State, to require physicians to terminate artificial life support, and the affirmative right to obtain medical intervention to cause abortion id.at 779.  Interestingly, there is also a right to obtain medical care in order to facilitate abortion, but not to sustain the life of a dying patient, and yet the court ascribes a right to terminate life support.  Again, it is clear that the right to sustain medical care is implicit and the court does not feel the need to overtly state the obvious: terminating medical care against a patient's will is an invasion of personal autonomy.

In Cruzan, the Supreme Court authorized the removal of life support for Nancy Cruzan, a woman who had suffered injuries in a car accident that rendered her brain dead. "This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. The informed consent doctrine has become firmly entrenched in American tort law." Cruzan, 497 U.S. at 269.  Thus, it is the lack of informed consent that leads to the commission of a battery, or an invasion of bodily integrity without the person's consent.  If we analogize the computer's mainframe to the human body, then any interference with the computer without its consent would be the same as providing, or not providing, medical care against a person's will, or a battery.

Similarly, the Supreme Court also chose to differentiate the withdrawal of life support and physician assisted suicide in this way: "First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication." Vacco, 521 U.S. at 801.  The "death" of the computer would be more easily analogized to a situation where a patient is killed by his medication because the computer is not suffering from any underlying "virus" or cause of dysfunction.  Instead, the removal of the power supply is a direct affront on its ability to exist independently and sustain its functionality and contribution to the outside world. The Supreme Court's distinction is important to note as it provides another vantage point from which to view the removal of the power supply as an actual affront to the computer's existence and not as a viable alternative, or merciful end to its misery.

The California Supreme Court addressed the same issues that the United States Supreme Court did in Cruzan, when it allowed Elizabeth Bouvia, a woman suffering from a horribly debilitating case of cerebral palsy, to terminate her life through the withdrawal of a feeding tube that was keeping her alive. Bouvia's state is one that is easily analogized to that of an intelligent computer:  "Although alert, bright, sensitive, perhaps even brave and feisty, she must lie immobile, unable to exist except through physical acts of others.  Her mind and spirit may be free to take great flights but she herself is imprisoned and must lie physically helpless subject to the ignominy, embarrassment, humiliation and dehumanizing aspects created by her helplessness.  We do not believe it is the policy of this state that all and every life must be preserved against the will of the sufferer.  It is incongruous, if not monstrous, for medical practitioners to assert their right to preserve a life that someone else must live, or, more accurately, endure. We cannot conceive it to be the policy of this state to inflict such an ordeal upon anyone." Bouvia v. The Superior Ct. of Los Angeles Cty., 179 Cal. App. 3d 1127 (1986). Or, conversely to take life from a person, or entity, who still desperately wants to sustain it. Interestingly, a computer could be described with the same words, although here this state is viewed as a dire one instead of one that might wished to be prolonged.

"It is, therefore, immaterial that the removal of the nasogastric tube will hasten or cause Bouvia's eventual death.  Being competent she has the right to live out the remainder of her natural life in dignity and peace.  It is precisely the aim and purpose of the many decisions upholding the withdrawal of life-support systems to accord and provide as large a measure of dignity, respect and comfort as possible to every patient for the remainder of his days, whatever be their number.  This goal is not to hasten death, though its earlier arrival may be an expected and understood likelihood." id. at 1143-44. Thus far the courts have only addressed the patient's right to refuse treatment because the right to sustain treatment is fundamental.  It would be absurd, and certainly contrary to the Hippocratic oath, for patients to feel that they had to ensure that they would continue to receive care while under the supervision of a physician.  Thus, this case is the first of its kind in the sense that, the right to sustain treatment appears to be as fundamental, if not more so, than the right to refuse treatment. But, the courts have not felt the need to address it because the right to remain alive is an inherent, unnecessarily described one.

"Where a doctor performs treatment in the absence of an informed consent, there is an actionable battery, '[The] patient's interests and desires are the key ingredients of the decision-making process.' The voluntary choice of a competent and informed patient should determine whether or not life-sustaining therapy will be undertaken, just as such choices provide the basis for other decisions about medical treatment." id. at 1140.   Thus, the court recognizes that it is the patient's decision whether to undergo or forego treatment, but the interference of the physician in that decision-making process  is tantamount to a battery.  Thus, continuing the analogy of the ventilator and the power supply, the unconsented-to removal of a power supply or a ventilator would be actionable as a battery in the eyes of the court, not to mention murder.

The court further explored the issue of actionable battery for the removal of life support in Barber, a case in which  "the life-sustaining technology involved in this case is not traditional treatment in that it is not being used to directly cure or even address the pathological condition.  It merely sustains biological functions in order to gain time to permit other processes to address the pathology."The question presented by this modern technology is, once undertaken, at what point does it cease to perform its intended function and who should have the authority to decide that any further prolongation of the dying process is of no benefit to either the patient or his family?"  Interestingly, the idea that the life-sustaining technology no longer does any good for the patient is similar to the idea that a computer's programming is so obsolete as to render it useless to the outside world and thus terminable.  However, just as a human can be improved through surgery, a computer can be improved through programming.  And, similar to a physician's duty to provide care, it would seem that the programmer has a duty to ensure that the computer is as technologically as advanced as it could possibly be under the circumstances.  "A physician has no duty to continue treatment, once it has proved  to be ineffective.  "Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel" Barber, 147 Cal. App. 3d at 1017.  A physician is authorized under the standards of medical practice to discontinue a form of therapy, which in his medical judgment is useless .... If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.  By useless is meant that the continued use of the therapy cannot and does not improve the prognosis for recovery."  Thus, it is only in the face of ultimate futility that the doctor can refuse to treat the patient.  Drawing a comparison to our intelligent computer, it is clear that the power source should not be withdrawn until there is absolutely no use left for the computer, or it becomes obsolete or un-reprogrammable.

Legal commentators and philosophers question the reasoning behind withdrawal of life  support and seek to establish a standard by which physicians can make a decision regarding the treatment of patients and whether or not to terminate it.  In terms of decision-making on behalf of incompetent patients, Rebecca Dresser feels that "unless the patient previously issued an explicit treatment directive, such as a living will," it is impossible to implement patient choice on behalf of an incompetent patient.  Thus, Dresser calls for an objective standard, also known as the Conroy test,  which would "weigh the features of life that reasonably qualify as benefits or burdens for all human beings.  Severe, irremediable pain is a relatively uncontroversial example of something all but the rare individual would experience as a heavy burden.  Conroy includes as objective benefits physical pleasure, emotional enjoyment, and intellectual satisfaction, all of which presuppose some level of cognitive awareness.  What the Conroy test omits is that even in the absence of pain, life without such cognitive awareness can be of no real value to a patient." Rebecca Dresser, "Relitigating Life and Death," 51 Ohio St. L.J. 425, 426 (1990).  Thus, measuring cognitive awareness is an incredibly important part of the determination of whether life should or should not be terminated.    "At minimum, some capacity for social interaction is  a prerequisite to meaningful existence.  Without it, treatment and continued life cannot confer a morally significant benefit on the incompetent patient.  Thus, the objective standard should permit nontreatment when the patient lacks any relational capacity. Conversely, the standard should mandate treatment that will enable the patient capable of interacting with the environment to continue life, as long as significant pain and discomfort are absent." id.  An intelligent computer would pass the Conroy test with flying colors.  Although its relation to the world appears on the surface to be comparable to that of an incompetent patient, in fact, the computer is able to function at a cognitively significant level, placing its life at a high value.

B. Criminal Animal Cruelty Provides Another Legal Forum in Which to Protect Non-Human Sentient Beings

More so than with our animal friends, we will empathize with their professed feelings and struggles because their minds will be based on the design of human thinking.  They will embody human qualities and will claim to be human.  And we'll believe them.  - Kurzweil, 63.

California Penal Code, ß  597[i], subd. (a), provides that every person who maliciously and intentionally maims, mutilates, tortures, wounds, or kills a living animal is guilty of an offense. People v. Thomason, 84 Cal. App. 4th 1064 (2000).  The California Penal Code created rules surrounding animal cruelty in order to avoid the infliction of suffering on sentient beings.  Thus, the penal code gives animals, as sentient beings, protections even though they are not humans.  By ascribing a moral status to animals, the code opens the door to beg the question: what moral value and protection is given to other sentient,  non-living beings?

Animal cruelty statutes attempt to eliminate the grossly negligent treatment of animals and their subjection to needless and severe suffering. (Sanchez 628)  The failure to treat an animal according to basic social norms is likened to the treatment of a minor child in the same way. People v. Sanchez, 94 Cal. App. 4th 622, 633 (2001).  Therefore, it is the fact that the animal is helpless from a legal standpoint, as well as from the fact that it cannot communicate its protest, from which the statute draws its force.

The statute not only addresses the abuse of animals, but also looks to their euthanization:  "The Legislature has expressly stated the public policy of this state concerning euthanasia of animals. If an animal is adoptable or, with reasonable efforts, could become adoptable, it should not be euthanized.  However, if an animal is abandoned and a new owner cannot be found, the facility "shall thereafter humanely destroy the animal so abandoned." People v. Youngblood, 91 Cal. App. 4th 66, 73 (2001).  Therefore, if an animal has any hope of regaining a normal life, and is domesticable, then there is no reason to deprive it of life.  The legislature clearly favors sustaining life under all possible circumstances when a sentient being is involved.

The penal code is designed to protect "every dumb  creature." People v. Baniqued, 85 Cal. App. 4th 13, 16  (2000).  "Thus, in its broadest sense, the phrase 'dumb creatures' describes all animals except human beings. The use of the adjective 'every' in the definition indicates that a broad meaning was intended." id. at 21.  Furthermore, sections 597b, 597c, 597i, and 597j each address conduct which is less egregious than the conduct proscribed by section 597, subdivisions (a) and (b). The legislative intent underlying this statutory scheme is to punish less despicable conduct less severely, and to punish more despicable conduct more severely. id. at 32.  The legislative intent surrounding the relationship between man and pet is that of a property relationship.  So, the statutory scheme in sections 597 through 597z reflects the state's concern for the protection of the health and well-being of animals. Absent statutory authority, a court may not divest an owner of a property interest in a non-fighting animal or bird to effectuate that concern.  If ownership of animals is to be divested by reason of cruel treatment, the remedy lies with the Legislature, not with us." Jett v. Municipal Court,  177 Cal. App. 3d 664, 670-671 (1986).

Thus, the penal code was designed to criminalize the mistreatment of animals in order to  eliminate the unnecessary suffering of sentient beings that, although they are not human, still are able to feel pain.  Likewise, an intelligent computer that can think like a human might also experience unnecessary pain at the thought of its power source being disconnected. For "intelligence is not a uniquely human characteristic." Paul Chance, "Apart from the animals: there must be something about us that makes us unique," Psychology Today 22.1:18 (1988).

Although humans feel that their intelligence sets them apart, if intelligence were the only criterion that we used to determine humanness, then the computer would never be disconnected – it would be murdered. "The answer to the riddle 'What makes humans different from other animals?' lies buried in the question. We are so far as anyone can tell, the only creature on Earth that tries to prove that it is different from, and preferably superior to, other species."  Thus, our own quest to differentiate ourselves might make us so telescopic that we cannot even see that it is the quest in itself that makes us different in the first place. The debate over animals as sentient beings is a heated one and full of questions surrounding the moral status of sentient non-humans. The question remains: "If possessing a higher degree of intelligence does not entitle one human to use another for his or her own ends, how can it entitle humans to exploit nonhumans for the same purpose?" Judge Richard Posner responded to the contentions of philosopher Peter Singer surrounding the status of animals as compared to humans in a moral framework.  

When responding to Singer's argument that we should value beings according to their mental capabilities, Posner asserts that the argument "implies that the life of a chimpanzee is more valuable than the life of a human being who, because he is profoundly retarded (though not comatose), has less mental ability than the chimpanzee. There are undoubtedly such cases. Indeed, there are people in the last stages of Alzheimer's disease who, though conscious, have less mentation than a dog. But killing such a person would be murder, while it is no crime at all to have a veterinarian kill one's pet dog because it has become incontinent with age." Peter Singer and Richard A. Posner, "Animal Rights," Slate Magazine June 12, 2001.  Posner's argument suggests that there is something inherent to the human existence that transcends simply the mental aspects.  But, under either argument, a being that had full possession of his faculties and was more sentient than some humans might also give us pause if we decided to kill it. 

Singer's utilitarian philosophy "places a greater value in a healthy pig than in a profoundly retarded child, commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees." Posner cannot agree with such choices, even though they occur at the outer edges of the philosophy.  The legal community obviously agrees with Posner, for although it does not commend the killing of animals it allows for it, when it does not allow for the killing of humans at all.  But, for the purposes of an intelligent computer, it is more important to look at the philosophical underpinnings that gird the reasoning behind outlawing the killing of humans but allowing for the killing of animals.  Both are living beings, but one has a human mind and one does not.  Thus, it would seem that a computer that can replicate human thought might command at least as much respect as an animal, and possibly more, under the legal framework that we have created. "When we kill a being that has an interest in continuing to live in the future, we have done something worse, all else being equal, than when we kill a being which is merely sentient, like a fish." id.

"For Singer, human and nonhuman animals have interests if they have the ability to experience pains or pleasures. Singer cites an oft-quoted passage from Jeremy Bentham indicating that, when it comes to animals, '[t]he question is not, Can they reason? nor Can they talk? but, Can they suffer?'" id. Singer feels it is the suffering experienced that differentiates living beings, but, the question remains, how do we know when another species is suffering? "We may think that pain is a mental state which all animals tend to avoid, and pleasure is a mental state which all animals tend to prefer. However, we do not know that these mental states are equally bad across species, because they may differ not only in duration and intensity but in other hard to define ways." Id.

The animal rights movement in Europe has been much more effective. "Earlier this year, Germany became the first nation to grant animals a constitutional right: the words "and animals" were added to a provision obliging the state to respect and protect the dignity of human beings. The farming of animals for fur was recently banned in England. In several European nations, sows may no longer be confined to crates nor laying hens to "battery cages" -- stacked wired cages so small the birds cannot stretch their wings. The Swiss are amending their laws to change the status of animals from 'things' to 'beings.'"  id. Thus, in some countries animals have received equal moral status with humans.  For the purposes of an intelligent computer, progress on the part of animals is important, but it is clear that the ability to replicate human thought places the intelligent computer on a higher plane than animals, even if the question of whether an intelligent computer feels pain cannot be answered clearly.  If it were suddenly proven that chimpanzees could think like humans,  this debate would be irrelevant and we would view animals in an entirely different light.  Thus, the computer's ability to think like a human places it well beyond the scope of an animal, and certainly affords it at least the level of protection that we allow for dogs, cats and roosters.

C. Threatening Death is an Action so Outrageous as to Constitute Intentional Infliction of Emotional Distress

Human beings appear to be complex in part because of our competing internal goals.  Values and emotions represent goals that often conflict with each other, and are an unavoidable by-product f the levels of abstraction that we deal with as human beings.  As computers achieve a comparable  -- and greater – level of complexity, and as they are increasingly derived at least in part from models of human intelligence, they , too, will necessarily utilize goals with implicit values and emotions, although not necessarily the same values and emotions that humans exhibit. Kurzweil, 5.

A human being who was threatened with the termination of her life because someone thought that she wasn't really worthwhile to keep around would be able to sue for intentional infliction of emotional distress (hereinafter IIED).  Likewise, such a threat might have a similarly detrimental effect on the emotional well-being of an intelligent computer.  If the computer is able to think like a human, then it is likely able to emote like one as well. "The elements of a prima facie case for the tort of intentional infliction of emotional distress are summarized as follows: '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'" Flynn v. Higham, 149 Cal. App. 3d 677 (1983).

The California courts have interpreted these requirements over the years to entail conduct that is both severe and somewhat absurd in nature.  "In order to meet the first requirement of the tort, the alleged conduct " '... must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.' Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' (Rest.2d Torts, ß 46, com. d.) That the defendant knew the plaintiff had a special susceptibility to emotional distress is a factor which may be considered in determining whether the alleged conduct was outrageous.' Cochran v. Cochran, 65 Cal. App. 4th 488 (1998). This is a fairly subjective standard, taking into account how the actions might affect the plaintiff as an individual instead of a more objective, generalized standard that lays out a set of criteria that automatically lead to a charge of IIED. "The tort of intentional infliction of emotional distress . . . is not complete until the effect of a defendant's conduct results in plaintiff's severe emotional distress. That is the time the cause of action accrues and starts the statute of limitations running.  This requisite severity of emotional distress, in turn, must be determined by being 'of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.' id. Our society considers the threat of death to be tortuous.  We do not expect normal men to endure threats on their lives.  Such conduct would certainly be found to be emotionally distressing under the standards advanced here.  Thus, even though the computer's emotional makeup might be scrutinized, from an objective standpoint, society would view the threat of death as outrageous and unacceptable.

"There is no bright line standard for judging outrageous conduct and '... its generality  hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical ....' Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant's alleged conduct was not sufficiently outrageous." id.  It is up to the court to determine the level of outrageousness, the key element, in each case.  Thus, if the defendant's conduct does not appear sufficiently outrageous, according to the judge's own internal standards, the claim for IIED cannot be sustained. "The standard of judging outrageous conduct . . . hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical." KVOR-TV v. Superior Ct., 31 Cal. App. 4th 1023, 1027 (1995). Therefore, the plaintiff's own internal experience colors the standard by which the judge will interpret the defendant's actions.

"In evaluating whether the defendant's conduct was outrageous, it is 'not ... enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." ( Rest.2d Torts, ß  46, com. d, p. 73.) Cochran, 65 Cal. App. 4th at  494.  In this case, the knowledge that its power supply could be cut off and its life ended at any time is an extremely distressing thought to impose on a computer.  Were the life of a human being dangled in front of her eyes, it is unlikely that a court would claim that such a threat does not impose emotional distress to the point of an average person exclaiming "outrageous!" 

However, the courts are reluctant to extend the tort too far so as to interfere with freedom of expression and to create a thin-skinned society.  Although a person's sensitivity  can be taken into account, for example if the plaintiff is a young child or an elderly adult, the courts do not want to hear cases where an overly-sensitive person was extremely offended by conduct that another might not find so bad.  Even though the defense would probably be able to find someone on either end of the spectrum that would assert that the statement wasn't that bad, the tort was designed to punish behavior that was offensive across a broad base of society.  "Further, the tort does not extend to 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam . . .." id. at 496.

CONCLUSION

An intelligent machine, one that can replicate the human experience and intelligence, has standing to bring a claim of battery, animal cruelty, or intentional infliction of emotional distress against a person who would threaten to withdraw its power supply. The removal of the power supply can easily be equated with forms of euthanasia or intimations of death.  Such an action, if taken against a human being – even a brain-dead one, would be unacceptable in the eyes of the law, and are equally unpalatable when viewed in terms of how they affect a computer that can be easily equated with a human. Instead of being threatened with electronic death, the computer should be sustained, just as any other human would be, until its time or purpose comes to a natural end.

[i] § 597.  Cruelty to animals

   (a) Except as provided in subdivision (c) of this section or Section 599c, every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($ 20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($ 20,000), or by both the fine and imprisonment.

   (b) Except as otherwise provided in subdivision (a) or (c), every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime punishable as a misdemeanor or as a felony or alternatively punishable as a misdemeanor or a felony and by a fine of not more than twenty thousand dollars ($ 20,000).

   (c) Every person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish as described in subdivision (d), is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($ 20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in the county jail for not more than one year, by a fine of not more than twenty thousand dollars ($ 20,000), or by both the fine and imprisonment.

   (d) Subdivision (c) applies to any mammal, bird, reptile, amphibian, or fish which is a creature described as follows:

   (1) Endangered species or threatened species as described in Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code.

   (2) Fully protected birds described in Section 3511 of the Fish and Game Code.

   (3) Fully protected mammals described in Chapter 8 (commencing with Section 4700) of Part 3 of Division 4 of the Fish and Game Code.

   (4) Fully protected reptiles and amphibians described in Chapter 2 (commencing with Section 5050) of Division 5 of the Fish and Game Code.

   (5) Fully protected fish as described in Section 5515 of the Fish and Game Code.

   This subdivision does not supersede or affect any provisions of law relating to taking of the described species, including, but not limited to, Section 12008 of the Fish and Game Code.

   (e) For the purposes of subdivision (c), each act of malicious and intentional maiming, mutilating, or torturing a separate specimen of a creature described in subdivision (d) is a separate offense. If any person is charged with a violation of subdivision (c), the proceedings shall be subject to Section 12157 of the Fish and Game Code.

   (f) (1) Upon the conviction of a person charged with a violation of this section by causing or permitting an act of cruelty, as defined in Section 599b, all animals lawfully seized and impounded with respect to the violation by a peace officer, officer of a humane society, or officer of a pound or animal regulation department of a public agency shall be adjudged by the court to be forfeited and shall thereupon be awarded to the impounding officer for proper disposition. A person convicted of a violation of this section by causing or permitting an act of cruelty, as defined in Section 599b, shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition.

   (2) Mandatory seizure or impoundment shall not apply to animals in properly conducted scientific experiments or investigations performed under the authority of the faculty of a regularly incorporated medical college or university of this state.

   (g) Notwithstanding any other provision of law, if a defendant is granted probation for a conviction under this section, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders. If the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant's ability to pay. An indigent defendant may negotiate a deferred payment schedule, but shall pay a nominal fee if the defendant has the ability to pay the nominal fee. County mental health departments or Medi-Cal shall be responsible for the costs of counseling required by this section only for those persons who meet the medical necessity criteria for mental health managed care pursuant to Section 1830.205 of Title 7 of the California Code of Regulations or the targeted population criteria specified in Section 5600.3 of the Welfare and Institutions Code. The counseling specified in this subdivision shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine. This provision specifies a mandatory additional term of probation and is not to be utilized as an alternative in lieu of imprisonment in the state prison or county jail when such a sentence is otherwise appropriate. If the court does not order custody as a condition of probation for a conviction under this section, the court shall specify on the court record the reason or reasons for not ordering custody. This subdivision shall not apply to cases involving police dogs or horses as described in Section 600.