Artificial Intelligence, Computational Modelling and Criminal Proceedings: A Framework for A European Legal Discussion

242 Pages·2020·2.953 MB·English

by  Serena Quattrocolo

Legal Studies in International,
European and Comparative Criminal Law 4
Serena Quattrocolo
Artificial
Intelligence,
Computational
Modelling and
Criminal Proceedings
A Framework for A European Legal
Discussion
Legal Studies in International, European
and Comparative Criminal Law
Volume 4
Editor-in-Chief
Stefano Ruggeri
Department of Law, University of Messina, Messina, Italy
Editorial Board Members
Chiara Amalfitano
University of Milan, Milan, Italy
Lorena Bachmaier Winter

Faculty of Law, Complutense University of Madrid, Madrid, Spain
Martin Böse
Faculty of Law, University of Bonn, Bonn, Germany
Eduardo Demetrio Crespo
University of Castile-La Mancha, Toledo, Spain
Giuseppe Di Chiara
Law School, University of Palermo, Palermo, Italy
Alberto Di Martino
Sant'Anna School of Advanced Studies, Pisa, Italy
Sabine Gleß
University of Basel, Basel, Switzerland
Krisztina Karsai
Department of Criminal Law, University of Szeged, Szeged, Hungary
Vincenzo Militello
Dipto Sci Giuridiche, della Società, University of Palermo, Palermo, Italy
Oreste Pollicino
Comparative Public Law, Bocconi University, Milan, Italy
Serena Quattrocolo
Department of Law, University of Piemonte Orientale, Alessandria, Italy
Tommaso Rafaraci
Department of Law, University of Catania, Catania, Italy
Arndt Sinn
Faculty of Law, University of Osnabrück, Osnabrück, Germany
Francesco Viganò
Bocconi University, Milan, Italy
Richard Vogler
Sussex Law School, University of Sussex, Brighton, UK
The main purpose of this book series is to provide sound analyses of major
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guidance for courts. In terms of scope, the series encompasses four main areas, the
first of which concerns international criminal law and especially international case
law in relevant criminal law subjects. The second addresses international human
rights law with a particular focus on the impact of international jurisprudences on
national criminal law and criminal justice systems, as well as their interrelations. In
turn the third area focuses on European criminal law and case law. Here, particular
weight will be attached to studies on European criminal law conducted from a
comparative perspective. The fourth and final area presents surveys of comparative
criminal law inside and outside Europe. By combining these various aspects, the
series especially highlights research aimed at proposing new legal solutions, while
focusing on the new challenges of a European area based on high standards of
human rights protection.
As a rule, book proposals are subject to peer review, which is carried out by two
members of the editorial board in anonymous form.
More information about this series at http://www.springer.com/series/15393
Serena Quattrocolo
Artificial Intelligence,
Computational Modelling
and Criminal Proceedings
A Framework for A European Legal
Discussion
Serena Quattrocolo
Department of Law, Politics, Economics and Social Science
University of Eastern Piedmont
Alessandria, Italy
ISSN 2524-8049 ISSN 2524-8057 (electronic)
Legal Studies in International, European and Comparative Criminal Law
ISBN 978-3-030-52469-2 ISBN 978-3-030-52470-8 (eBook)
https://doi.org/10.1007/978-3-030-52470-8
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To the beloved memory of Daiana, the most
curious, lively and unlucky of my students:
may your intellectual enthusiasm live in
those who read this book.
Foreword: Let a Lawyer Write of AI
There are three different ways in which we can appreciate the role of Artificial
Intelligence (AI) and of further emerging technologies in the field of criminal law.
AI may entail either new forms of criminal responsibility, or new loopholes in the
criminal law field, or new challenges for the rights of criminal defendants to a fair
trial. The sequence of this list follows a chronological order, because scholars, first,
debated since the early 1990s whether AI could ever be considered as an account-
able agent in the criminal law field, due to its mens rea, i.e. the mental element of an
offence. A decade later, in the mid-2000s, scholars increasingly focused on the
material elements of a crime, in order to determine to what extent AI could ever
trigger a new generation of actus reus. Finally, in the mid-2010s, the attention was
progressively shifted to AI either as a collector of evidence in criminal investiga-
tions, or as a human substitute in the judicial decision-making process, or as a proxy
of the principle of fair trial in criminal proceedings, thereby affecting the discretion
of courts.
The first kind of debate on the criminal personality of AI started with the father
of “robotics”, Isaac Asimov in 1941. In the legal domain, this kind of debate became
particularly popular fifty years later, when some brilliant scholars, such as Justice
Curtis Karnow and Professor Lawrence Solum, discussed new forms of account-
ability and personhood for “distributed artificial intelligence”, as in Karnow’s 1996
paper, or for artificial intelligences, i.e. “AIs”, as in Solum’s seminal work from
1992. Two decades later, the advancements of technology turned this academical
discussion into a hot political and ideological debate. A crucial role in this shift was
played by the European Parliament’s proposal from February 2017, in which the EU
institution invited the European Commission “to explore, analyze and consider the
implications of all possible legal solutions, (including) … creating a specific legal
status for robots in the long run”. Some reckon that AI can actually be considered
“aware” and fulfilling the mental requirements of that which criminal lawyers dis-
cuss as intentional and negligent offences (e.g. Gabriel Hallevy’s thesis). Others
claim that cognition and awareness, volition and intention or reason responsiveness
can be attributed to an AI system in a way that is meaningful for criminal lawyers,
although no reference is necessary to human-like properties (e.g. Giovanni Sartor’s
vii
viii Foreword: Let a Lawyer Write of AI
stance). Most scholars note, however, that nobody would bring AI before judges
today, in order to declare AI “guilty” in criminal courts. This is not to say that fur-
ther forms of legal agenthood for AI make no sense, for example, in such fields as
business and corporate law. Yet, it seems fair to admit, according to the phrasing of
the European Parliament, that the criminal personality of AI, if ever, could only
develop “in the long run”.
The second kind of debate on a new generation of AI actus reus started with the
second Gulf War in Iraq (and in Pakistan), in the mid-2000s. Years later, in the 2010
Report to the UN General Assembly, the Special Rapporteur on extrajudicial, sum-
mary or arbitrary executions, Christof Heyns, urged the then Secretary-General Ban
Ki-moon to convene a group of experts in order to address “the fundamental ques-
tion of whether lethal force should ever be permitted to be fully automated”. A hot
debate revolved around what AI can justly do in war (ius in bello) and when and
how resort to war via AI can be justified (ius ad bellum or bellum iustum). In addi-
tion, scholars examined a wider impact of AI on a tenet of criminal law, which is
traditionally summed up with the idea that “everything which is not prohibited is
allowed”. Similar to what occurred with a new generation of computer crimes in the
early 1990s, scholars have progressively stressed that AI may soon trigger a new
generation of actus reus, therefore affecting the principle of legality as enshrined in,
for example, Article 7 of the 1950 European Convention on Human Rights. A recent
literature review has proposed five areas of foreseeable threats of AI in criminal law,
such as (i) new offences against the persons, e.g. harassment; (ii) sexual offences;
(iii) trafficking, selling, buying and possessing harmful or dangerous banned drugs;
(iv) commercial insolvency and further issues of financial markets, such as price-
fixing and collusions and (v) theft and non-corporate fraud. As I like to say, these
new scenarios for AI crimes are only limited by the human imagination. In the field
of computer crimes, illegal systems started amending their own laws from the early
1990s, e.g. the Italian regulation 547 from December 1993; then, the international
legislator intervened, so as to formalise such legal experiences through the general
provisions of the Budapest convention from 2001. I think something similar will
happen with a new generation of AI crimes.
The third kind of debate on how the rights of criminal defendants to a fair trial
can be affected by AI has increasingly drawn the attention of experts in the 2010s to
the role that AI may play as an evidence collector, as a human substitute or as a
proxy of the fair trial principle in criminal proceedings. The US Supreme Court’s
case law is particularly instructive. In Jones v. United States (565 U.S. 400 (2012))
and then in Carpenter v. United States (585 U.S. _ (2018)), the rulings concerned
the protection of the “reasonable expectation of privacy” vis-à-vis the collection of
criminal evidence through the use of GPS and cell phone locations techniques,
respectively. In 2017, criminal proceedings’ safeguards in an age of AI ignited a
popular debate in journals and newspapers because of the use of risk assessment
programs by the Court of the Loomis v. Wisconsin case (881 N.W. 2d. 749 (Wis.
2016)). As the New York Times was keen to inform us on 1st March 2017, Loomis’
claim was that “his right to due process was violated by a judge’s consideration of a
report generated by the software’s secret algorithm, one that Mr. Loomis was unable
Foreword: Let a Lawyer Write of AI ix
to inspect or challenge”. In June 2017, the Supreme Court denied Loomis’ petition
for a writ of certiorari. All in all, against such case law, we can suspect that this kind
of debate on how AI may impinge on the rights of criminal defendants will become
more and more urgent. Three reasons suggest this conjecture.
The first reason has to do with the rights of defendants to examine the algorithms
of AI: some features of AI, such as the inscrutability of machine learning tech-
niques, add a layer of complexity to traditional digital forensics. The second reason
regards the role AI plays in the decision-making of judges: it is still unclear how
courts should exercise their discretion when striking the balance between fair trial
or due process arguments of criminal defendants and the value of AI risk assess-
ments. The third reason hinges on the interplay between fair trial principles and the
protection of personal data and individual privacy rights. In Europe, for example,
the European Court of Human Rights has so far subordinated some legal safeguards
of Article 6 of the Convention on fair criminal trials, to a preliminary violation of
Article 8 on the right to privacy: AI will likely exacerbate the weaknesses of this
stance on the interplay between criminal safeguards and privacy rights, since the
right to a fair trial can be strengthened—but not replaced—by the protection of the
right to privacy (and data protection). In the USA, a new generation of AI collectors
of evidence will similarly stress some shortcomings of the Supreme Court’s doc-
trine on the third-party doctrine, namely the idea that secrecy is a prerequisite for
the protection of privacy rights under the Fourth Amendment to the Constitution.
Further, the right to a reasonable expectation of privacy, both societal and individ-
ual, may end up with “the chicken or the egg” causality dilemma. Such reasonable
privacy expectations rest on the assumption that individuals and society have devel-
oped a stable set of privacy expectations, and still, AI can dramatically change such
beliefs.
Therefore, its vital scholars properly address the urgent issues of AI forensics,
judiciary discretion and data protection in an age of increasingly smart AI. By com-
parison with the previous debates on the criminal personality of AI or on a new
generation of AI crimes, it should be noted, however, that there are still few works
on this subject matter. A reason may depend on recent developments of law and
technology; another on the complexity of the issues that are at stake with AI. The
direct and indirect impact of computational modelling on evidence gathering, much
like the challenges of AI to the judicial decision-making process in criminal pro-
ceedings, do not only concern legal expertise, but scientific knowledge and techno-
logical know-how. In particular, the focus should be on criminal investigations that
hinge on the use of computational techniques and AI systems, in order to understand
how they may affect the principles of fair trial and the equality of arms through
automatedly generated evidence. Likewise, the attention should be drawn to the
distinction between deciding and predicting, between criminal justice and predic-
tive justice. AI impacts the different steps of the criminal justice decision-making
process when tackling, for example, violent behaviour and recidivism.
Few investigators, however, could have ever set the proper theoretical frame-
work, in which to address these complex sets of issues on philosophy of law and
criminal justice, legal informatics and digital forensics, machine learning and deep
x Foreword: Let a Lawyer Write of AI
learning. Professor Quattrocolo’s book fills this gap. Her book is timely and badly
needed, because it provides an in-depth analysis on some of the most urgent legal
threats brought forth by AI today. Moreover, the book is solid and yet provocative,
because it will generate a multidisciplinary discussion on how the law could be used
to safeguard the rights of all parties involved as AI proliferates more deeply into
society. Lawyers can learn a lot about their own field, working together with com-
puter scientists and AI developers, much as AI developers and computer scientists
can reflect on the normative constraints of their work, collaborating with law profes-
sors, judges, attorneys and other legal experts. This monograph is the fruit of this
essential interaction. Let the author of this book, a lawyer, write important things
about AI.
Law Department Ugo Pagallo
University of Torino
Torino, Italy