I've been pondering writing a short essay on an interesting legal issue that I run into from time to time: When applying traditional legal doctrines to computers, when should courts model computers as people?

  Here are two examples to demonstrate the problem. In an Australian case, Kennison v. Daire, 160 C.L.R. 129 (1986), a man withdrew $200 (AU) from an offline Automatic Teller Machine (ATM) using an expired card from a closed account. Bank employees had programmed their computers to dispense money whenever a person used an ATM card from that bank using a proper password. When the ATMs were offline, however, the machines were programmed to dispense money without checking whether there was money in the relevant account, or even if the account was still open. The defendant in Daire intentionally exploited this defect, took the $200, and was charged and convicted of larceny. On appeal, he argued that he had not committed larceny because the bank, through the ATM, had consented to his taking the money. The High Court of Australia rejected the argument:

  The fact that the bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the bank consented to the withdrawal of money by a person who had no account with the bank. It is not suggested that any person, having the authority of the bank to consent to the particular transaction, did so. The machine could not give the bank's consent in fact and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to $200 by a card holder who presented his card and supplied his personal identification number, only if the card holder had an account which was current. It would be quite unreal to infer that the bank consented to the withdrawal by a card holder whose account had been closed.

  Compare this case with the U.S. Supreme Court's opinion in Smith v. Maryland, 442 U.S. 735 (1979). In Smith, the government asked the phone company to install a "pen register" machine on the suspect's phone to find out what numbers he was dialing. When the defendant placed a call to harass his victim, the pen register installed at the phone company recorded the outgoing numbers dialed on the call, confirming the call to the victim. The defendant argued that the surveillance violated his Fourth Amendment rights, but the Supreme Court rejected the claim relying in part on the equivalence between the pen register equipment and a person:

The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

  Daire and Smith are interesting cases, I think, because the outcome apparently hinges on how to apply legal doctrines designed for people in the case of automated machines. The question is, do you treat the machine as a stand-in for a person, or do you treat it as something else? On one hand, the instinct to anthropomorphize computers seems natural; computers are designed to perform tasks on their user's behalf, and it's easy to model them as mechanical servants. On the other hand, computers are just machines, and pretending that they are people seems inappropriate in a wide range of cases.

  In any event, I'm intrigued by the question, as it seems to me that the issue probably comes up in lots of different contexts. It seems to me that a coherent perspective on the problem — such as a normative theory for how courts should resolve such claims in different contexts — might be quite useful. At the same time, I have no idea whether this ground has been well-covered elsewhere, especially outside U.S. law reviews, or whether it is at all worth pursuing. My hope is that the VC's crack commenters can offer some thoughts and insights. What do you think, dear readers — Cool idea, or trivial issue lacking any novelty?