Abstract

This article introduces definitions for direct, means-end, oblique (or indirect) and ulterior intent which can be used to test for intent in an algorithmic actor. These definitions of intent are informed by legal theory from common law jurisdictions. Certain crimes exist where the harm caused is dependent on the reason it was done so. Here the actus reus or performative element of the crime is dependent on the mental state or mens rea of the actor. The ability to prosecute these crimes is dependent on the ability to identify and diagnose intentional states in the accused. A certain class of auto didactic algorithmic actor can be given broad objectives without being told how to meet them. Without a definition of intent, they cannot be told not to engage in certain law breaking behaviour nor can they ever be identified as having done it. This ambiguity is neither positive for the owner of the algorithm or for society. The problem exists over and above more familiar debates concerning the eligibility of algorithms for culpability judgements that mens rea is usually associated with. Aside from inchoate offences, many economic crimes with elements of fraud or deceit fall into this category of crime. Algorithms operate in areas where these crimes could be plausibly undertaken depending on whether the intent existed in the algorithm or not.