Técnica, decisões automatizadas e responsabilidade penal

Abstract

This work aims to discuss algorithms capable of making automated decisions, their ability to cause damage described as wrongful conducts and the consequent attribution of criminal liability when such damages are verified. In a socio-legal context of intensification of technological development, virtualization of social and commercial relations and progressive automation enhanced by the development of all kinds of algorithms, including artificial intelligence, new challenges for criminal law emerge, especially in the hypotheses in which automated decisions made by algorithms cause damage described as wrongful conducts. The pathway to analyzing the problems comply to a research strategy that analyzes criminal liability looking at the production system and its concrete reality, the division of functions and duties (roles), and a risk-based approach. To delimit the object, essential categories of the computational sciences will be discussed, such as artificial intelligence and automation, extracting from them the normative content that indicates the interpretation of the criminal problems. From such interdisciplinary dialogue, it is intended to pinpoint the category of “automated decision algorithms (or systems)” as the focal point of difficulty in attributing criminal liability that this work intends to solve. Then, based on the research strategy, bibliographical and documental review and use of deductive method and multidisciplinary knowledge, four hypotheses arise: (1) algorithms of automated decision bring on a new challenge to criminal law; (2) this challenge is generated not only by artificial intelligence, but by all algorithms of automated decision, systems that automate decision making and create some degree of doubt about machine’s output; (3) natural and juridical persons can be criminally liable, while robots, given the current reality of technology, still cannot be; and (4) natural persons can be criminally liable for action or omission, but the duties that justify the liabilities have been transformed by the current particular form of software production, being noteworthy the Agile and its strategic management. In the end, to promote the validation of the hypotheses and the verification of the results, the work will carry out the resolution of adapted real cases and of extreme, hypothetical, and dilemmatic fictitious cases currently discussed by the doctrine, all of which are narrated throughout the work.