# Presentation: 927765

## 	The Man in the Mirror:Human Cognitive Representations	         and the Law     

**Sonia E. Miller, Attorney-at-Law**
**S.E. MILLER LAW FIRM**
**244 Fifth Avenue, Suite H228**
**New York, New York 10001 ****	****	*****Sandia National Laboratories***
**T:   (212) 488-3417****	****	****	*****Cognitive Systems Workshop***
**E:   **_[sonia@esquirewire.com](mailto:sonia@esquirewire.com)_**	****	*****Santa Fe, New Mexico******	******	******	******	******	******June 29-July 1, 2004***
**	**

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## The Law

- Most people think that to understand *law*, you need to understand a set of rules.  That’s a mistake...The law is best understood through stories – stories that teach what is later summarized in a catalog of rules.  So it is with stories that I begin.  At the end of this...I come clean about the themes and provide a map.  For now, just focus on the stories.
- 							Lawrence Lessig
- 					   	  _Code and Other Laws of Cyberspace _(1999)

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## What is a Cognitive System?

- A variety of software _**products**_ that utilize _**plausible**_ computational _**models**_ of _**human**__ __**cognitive processes**_ as a basis for human-machine interactions.
- Software (three overlapping technologies) that helps a machine interact with people in the same manner that people interact with one another - used to enhance human effectiveness.
- 	a.	Aide
- 	b.	Council
- 	c.	Oracle

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## Characteristics of an Aide

- They know what you know and don’t know.
- They know what you do and how you do it.
- They know your past experiences, its consequences, your sensitivities and vulnerabilities.
- They can interpret your knowledge and experience as you would.
- They recognize when you have learned and how it has shaped your world knowledge.
- They can **anticipate **your reactions to future events and situations.

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## The Reflection

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## Agency

- 	Is an agency relationship established with the aide?

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## Story 1: Mentor & Protégé 

- An attorney (Sam) is assigned a law school student (Tom) who is working as a paid summer law clerk in the firm (X).
- Enthralled with Sam (an expert in his field), Tom follows Sam around like a puppy – talking like, acting as, mimicking, and emulating him– all in good faith, expecting that would help him better understand how to think like a lawyer.
- Tom monitors and tracks Sam’s every move, situation tactics, and execution strategies in the hope of capturing his knowledge and decision-making processes and capabilities.
- 	(He expected that also would help him receive an offer to work as an associate at the firm upon graduation).

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## Tom

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## Story 1 continued...

- During the course of the summer, Tom learns what makes Sam “tick”, the “skeletons in his closet”, his taste in women, and his weekend escapades - his multiple contexts and corresponding concepts.
- Tom was a model law clerk. Thinking Tom would be fine on his own for a few days, Sam decides to take a much-needed vacation.  Tom had shadowed Sam and been his aide for about a month.

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## Story 1 saga continued...

- During Sam’s vacation, Tom receives an irate telephone call from one of Sam’s client (Zen). Of course, immediate action was required on the issue at hand.
- Tom, assured that he had a pretty good handle on the appropriate action Sam would take in this situation – his script – and that he had captured Sam’s cognitive model and unique knowledge in the case, decided to apply his mirrored expertise to Zen’s client matter.

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## How Story 1 saga is about to end...

- Without Sam’s knowledge or approval, inferring that he would be accurate in his assessment and actions, Tom engages a cognitive collective (council).
- Several law school colleagues join to assist Tom on Zen’s legal matter.
- They bring in an oracle to assure themselves of the outcome of their intended resolution.

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## How Story 1 ends...

- What possibly could go wrong?
- Tom was prepared to represent Zen because he was endowed with Sam’s intellectual behavior.
- There was no discrepancy detector.  He did not have the benefit of a training intervention.
- Needless to say, Tom is no longer a summer law clerk at the firm.

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## Questions

- Does a mentor (Sam) – protégé (Tom) relationship constitute an agency?
- 2.	Is informed consent needed for the protégé to shadow the mentor?

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## Agency

- 1.	A fiduciary relationship (not a contract):
- 	a.	formed by mutual consent - through words or actions
- 		1. formal or informal
- 		2. express or implied
- 	b.	with one person or **entity** (agent)
- 	c.	who acts on behalf of another person or
- 		entity (principal)
- 	d.	subject to the principal’s control
- 2.	A legal concept attached to a category of business and
- 	interpersonal relationships.

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## Questions continued...

- 3.	Does Mentor Sam have vicarious liability for the injurious actions of Protégé Tom on a third party (Client Zen), actions taken without Mentor’s knowledge, even though Protégé believed he was acting in good faith and that he had the authority to act on Mentor’s behalf?

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## Respondeat Superior

- When an agent’s tort (a legal wrong or a violation of a duty) causes injury upon a person or property, the principal may be indirectly liable based on the doctrine of respondeat superior (master – servant).
- Master – servant is based on whether the principal **controls**, or has the **right to control** the agent’s “physical conduct in the performance of the agency services.”

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## Vicarious Liability

- When triggered, respondeat superior automatically attributes the agent’s misconduct to the principal and imposes responsibility regardless of whether the principal:
- 	a.		authorized the misconduct;
- 	b.		forbade the misconduct; or
- 	c.		used all reasonable means to prevent the 		misconduct.

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## Story 1 Moral

- The principal has strict vicarious liability because:
- 	a.		the servant was acting within the 			scope of his employment;
- 	b.		the misconduct occurred within the 			authorized time and space limits; and
- 	c.		it was actuated, at least in part, by 			a purpose to serve the master.

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## The Unbearable Likeness of Being

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## Story 2

- Samsung Electronics America ran a series of national advertisements prepared by David Deutsch Associates.  The ads were set in the 21st century and depicted a current item from the popular culture and a Samsung electronic product.

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## Vanna White

- One of the ads depicted a robot dressed in a wig, gown, and jewelry that Deutsch selected to resemble Vanna White, the hostess of the “Wheel of Fortune”.  The robot was posed next to a game board that was instantly recognizable as the Wheel of Fortune set, in a stance for which White is famous.

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## White v. Samsung Electronics America, Inc.971 F.2d 1395 (9th Cir. 1992)

- The caption of the ad read: “Longest –running game show, 2012 A.D.”
- Samsung and Deutsch referred to the ad as the “Vanna White”.
- White had not consented to the ad and sued Samsung and Deutsch alleging violation of her common law right of publicity, which included the appropriation of her identity.

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## 4 Forms of Invasion of Privacy

_**Intentional intrusion**_, physical or otherwise, upon the **solitude or seclusion** of another or his private affairs or concerns, if such intrusion would be **highly offensive** to a **reasonable** person. No publication is necessary. Based on the manner in which information is obtained, not what is done with it.
- 	(Examples: surveillance in public or private places, eavesdropping, examining personal effects or files)
- The recognizable _**Appropriation of Name or Likeness**_** **for **commercial advantage**.

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## Invasion of Privacy

- 3.	_**Publicity**_** **given to a matter concerning** **the** **_**private life**_** **_**of another**_**, **even if true**.**
- 4.	_**Publicity**_** **placing another before the** **public in a** **_**false light**_**.**
- Truth is no defense.
- Consent is a valid defense.
- But, mistake as to consent is not.

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## Right of PublicityEastwood v. Superior Court (1983)

- The _right of publicity_ cause of action may be pleaded by alleging:
- 	1.	Defendant’s use of plaintiff’s identity;
- 	2.	Appropriation of plaintiff’s name or likeness 	to defendant’s advantage, commercially 	or otherwise;
- 	3.	Lack of consent; and
- 	4.	Resulting injury

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## The Unbearable Likeness

- “It is not impossible that there might be impersonation, without the use of either his name or his likeness.”
- 					Prossser, *Privacy*, 48 Cal. L. Rev. 383 (1960)
- [The right of publicity can be implicated for appropriating
- someone’s identity by simply using his signature slogan.]

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## New Mexico

- New Mexico recognizes the tort of invasion of privacy, and the tort of breach of confidence.
- One recognized type of invasion of privacy is the publication of private facts:
- 	1.	Public disclosure of private facts – objectionable to a 	reasonable 	person
- 		a.	invasion-of-solitude (how is information obtained)
- 			(1)	eavesdropping on a private conversation
- 			(2)	peeping in a bedroom window; and
- 	2.	Lack of legitimate public interest in the information.

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## The Magic

- What a good lawyer does is tell a story that persuades.  Not by hiding the truth or exciting the emotion, but using reason, through a story, to persuade.  When it works, it does something to the people who experience this persuasion...by an argument that persuades.  This is the magic of our system, however rare the miracles may be.
- 						  	Lawrence Lessig
- 						   _Code and Other Laws of Cyberspace_ (1999)

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## Lawyers

- “It is the trade of lawyers to question everything, yield nothing, and to talk by the hour.”
- 					President Thomas Jefferson (1743-1826)

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## Questions

- Will cognitive systems with knowledge comparables represent the reality TV show of tomorrow?
- Are smart computers that monitor and track what you do and create a mathematical extension of your behavior an Internet cookie extension or equivalent?
- Are data sources of knowledge engineering such as biometrics, EEG, sensors, and brain imaging that record cognitive processes an invasion of privacy?
- Who is the bailor of the information recorded and retrieved? What rights are given to the bailee?
- Are a human’s cognitive experiences patentable?

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## More Questions

- What provisions are there for errors of inference – the Britney Spears “oops, I did it again syndrome?”
- If a cognitive system can infer **intent**, what impact will that have on the criminal justice system?
- Should there be flexible cognitive systems standards? Best practices?

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## Still More Questions

- Can the knowledge script be copyrighted?
- Can the identified human be trademarked so as to distinguish him from another? Can the synthetic human?
- Would a human have a defamation claim against a cognitive system for libel or slander of his knowledge model?
- Can knowledge models be sold to the highest bidder on ebay?
- Who has the license to captured knowledge?
- Is the reflection of the Man in the Mirror a true portrayal, or can it be an image of Dorian Gray?

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## Power   

- We are entering a time when our power to muck about with the structures that regulate is at an all-time high.  It is imperative, then, that we understand just what to do with this power.  And, more important, what not to do.
- 						Lawrence Lessig
- 					   _Code and Other Laws of Cyberspace_ (1999)

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## Wishes

-  May you have many successful cognitive systems, and enchanting avatar dreams.

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## Thank You

- Sonia E. Miller
- Attorney-at-Law
- S.E. MILLER LAW FIRM
- 244 Fifth Avenue, Suite H228
- New York, New York 10001
- T:	(212) 488-3417
- E:	_[sonia@esquirewire.com](mailto:sonia@esquirewire.com)_

- Copyright 2004. All rights reserved.              S.E. MILLER LAW FIRM