D2.13: Virtual Persons and Identities

D2.13 Virtual Persons TOWARDS A NEW LEGAL CATEGORY: THE VIRTUAL PERSON?

Towards a new legal category: the virtual person?

Bourcier raises the question whether the present data protection legislation is the right response to virtual agents, capable of anticipating our decisions, suggesting we may need to create a new legal fiction by the name of “the virtual person”. She starts out with some terminological clarification about the notion of the virtual person, which can denote different realities in different contexts:

1. The numerical person, composed of digital data of a physical person, present on the internet;

2. A new creature – not necessarily created in the image of man – which acts on its own initiative, for instance an autonomic software program;

3. A profile, inferred from masses of data, which represents a physical person.

An emerging legal category or a novel technical device?

Bourcier states that, in a legal context, the notion of the virtual person can be used for two different purposes:

1. the protection of personal data; 

2. the securitization of transactions. 

As to the protection of personal data the virtual person would be the (virtual) profile of a physical person, as consented by that person and a physical person could create several such profiles, depending on the context and the amount and type of information she wants to disclose about herself. In this case we refer to the third meaning of “virtual person”, under (c) above.

As to the securitization of transactions, one could imagine using an intelligent agent to act in one’s name, enabling at the same time a restricted disclosure of personal data and the security of the transaction. In this case we refer to the second (and third) meaning of “virtual person”, under (b) and (c) above.

The question is whether such a construction would imply: 

1. Recognition of the existence of a virtual person with rights that are distinct from those of the physical person that is represented;

2. Recognition of full legal subjectivity to software programs.

The virtual person: an example of ambient law?

In her conclusion Bourcier suggests that there is no problem in according legal subjectivity to a technical device, because lawyers have been used to creating legal fictions if this makes good sense. The objections of natural law theorists claiming that only a human person can be attributed legal personhood overlooks the fact that law is an artificial construction, meaning that legal subjectivity is a legal artifact from the very beginning, not to be confused with the subjectivity of the person of flesh and blood.  

By providing legal status to virtual persons in the sense of (b) a software agent or (c) a profile, the law seems to inscribe itself into the emerging technological infrastructure, allowing it

1. to be more easily instrumental in achieving certain goals, while at the same time, 

2. protecting the human person by providing her with a virtual mask. 

If we compare Bourcier’s way of joining legal and technological artifacts to the findings of FIDIS Deliverable 7.9 on Ambient Law, it should be clear that the idea of granting legal subjectivity to virtual persons could be an interesting example of realizing Ambient Law, especially in that it integrates instrumentality with protection at the level of the technological architecture.