Agentic AI And The Looming Problem Of Criminal Scienter

Federal enforcement authorities have expressed confidence that existing legal authorities are adequate in the face of emergent artificial-intelligence (“AI”) technology. But particularly as agentic AI enters the mainstream, this proposition seems in question, especially so in the criminal-law context, where scienter provides the dividing line between innocent and wrongful conduct in most cases. For this reason, prosecutors and courts may struggle to find individuals and companies criminally culpable when an AI agent commits the misconduct. The law and society will eventually catch up to these developments, but it will take time. Legislatures may step up to fill this gap, but we may also see prosecutors turn more to civil statutes to address misconduct.