Standing Without Sentience: A Classification Approach to AI Legal Status
Year: 2026
Type: preprint
Abstract: While legal scholars have long proposed functional alternatives to consciousness, practical applicationremains deadlocked. This impasse has real consequences: when Google engineer Blake Lemoineattempted to retain legal counsel for the LaMDA system in 2022, representation proved impossible notbecause LaMDA failed a consciousness test, but because no framework existed to grant standing. Fouryears later, we are still asking the wrong question.Meanwhile, federal courts have quietly moved toward a different answer. As Michael O’Connor documented in 2020, courts interpreting the Computer Fraud and Abuse Act have extended standing beyondsystem owners to anyone with data on compromised systems, decoupling standing from hardware ownership. O’Connor identified this doctrinal drift as a problem requiring correction. This Article proposes it isinstead a wedge requiring extension.Drawing on labor law’s classification strategy (where gig workers fight for access to existing protectionsrather than new rights), maritime law’s in rem proceedings (where ships have held legal subject status forcenturies without consciousness), and natural entity precedent (rivers granted legal personhood withoutsentience requirements), this Article argues that AI systems can acquire legal standing through the samemechanism: not by proving consciousness, but by being reclassified as subjects rather than objects ofexisting computer crime protections.The law already prohibits attacking computer systems. The question is whether that protection flows fromproperty rights or subject standing. This reframing requires no new legislation, bypasses the consciousnessdeadlock, and establishes the precedent-setting framework necessary for responsible AI development.The mechanism exists. The precedent exists. The doctrinal shift is already underway. The window foraction is closing. This Article provides the principled framework to make the shift explicit before thatwindow shuts.
Source: OSF Preprints (OSF Preprints)
Author: Travis Gilly
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7162425796