Notwithstanding the ubiquitous “agent” modifier, “electronic agents” are not “agents” in the context of the law of agency. (I refer to agency-law agents with an uppercase “A”, “Agent”.) Their legal definition is readily available, for instance, through UETA and UCITA. The former has a slightly shorter, but functionally identical definition as UCITA. While both statutes basically bottom out defining electronic agents as computer programs possessing transactional capabilities, these programs fall short from being considered Agents.

The question of whether software should serve as an Agent has garnered some, arguably insufficient, attention. But none of those efforts, at least not those that I am aware of, have managed to yield a satisfactory answer. And finding such an answer is not optional. In fact, at my introductory AiCE presentation at Stanford Law School earlier this year, the “should” factor was a key question/challenge presented by the audience. If AiCE is going to takeoff, this must be answered. Fittingly, this posting is a first in a series on this important subject, offering a preview into a slice of the thesis in the forthcoming AiCE book.

Answers to the should-factor are available and can be extrapolated from the works of leading thinkers in this area. For example, in their excellent article “The Laws of Virtual Worlds,” Professors Dan Hunter and Greg Lastowka consider the phenomena of the significant amount of time spent by hundreds of thousands of people in an unwavering, fanatic commitment to leading their lives through avatars in virtual worlds. And while their article now dates “way back” to 2004, a mere six, albeit internet-era years ago, these numbers have since considerably grown.

From Hunter and Lastowka’s observation, it is also possible to appreciate that as these variables continue to increase, the (relative) ethereal, alternate-reality quality of virtual worlds concomitantly dilutes. What was once an alien, derided as a waste-of-time activity is, lo and behold, the norm. We thus witness the gestation of a new normative quality; its strengthening, deepening and expanding progress, and with it the need for an effective legal framework that is so critical to coalescing into proper order, that which would otherwise whither into wasteful chaos.

Structuring the new legal framework also presents an opportunity, as Professor Jennifer Mnookin observed, of “…reimagining, for questioning and reshaping questions of self, politics and law.” Mnookin’s observation should not be dismissed as merely academic or impractical, for it is only through such quantum leaps of thought that paradigms are stressed and shattered, ultimately crystallizing reimagined realities and bringing forth new opportunities.

It is inevitable and only a matter of (a short) time that in this reimagined reality, the use of some avatars will transcend the aquarium-like current environment in which virtual worlds exist. These new and improved avatars will take on the form of AiCE. They will get smarter in this evolutionary window; garner rights; be capable of autonomous operation in certain (initially) limited respects; be exponentially able to quickly learn and adapt to their new environment. In parallel, some users will decide to enable their AiCE to conduct business on their behalf (not just buy stuff on Amazon or eBay), use real-world money, shield their real-world identity (in the form of an AiCE Veiled Identity Agent) and bring about real-world consequences, both positive and negative in ways that are no longer confined to the virtual world aquarium. In this reimagined reality, the need for AiCE to be an Agent will no longer contain the should-factor; thus the seeds of the electronic Agent begin to germinate.