Derecho penal y revolución digital: Desafíos y soluciones para regular crímenes cometidos en la era tecnológica

Abstract

Law is generally retrospective, reacting to events that have already occurred; on the other hand, technology is proactive and develops without waiting for legislative approval. (LUÑO, 2012) argues that technology progresses at a speed that the legislative process cannot match, creating a gap that impedes development. This discrepancy between the legal response time and that of technology causes numerous regulations to be implemented late, hindering the development of emerging technologies in a regulated and secure environment. Considering that legal rigidity represents one of the main impediments to digital progress, it is essential to apply more versatile and adaptable methods. (Erdélyi & Goldsmith, 2022) suggest the idea of a "dynamic regulatory architecture," where the law not only remains static but can also adjust to contemporary technological demands. This approach would entail: the establishment of provisional regulatory frameworks that facilitate regulated experimentation with novel technologies, preventing their prohibition without a thorough examination of their consequences; technology review organizations within legislative bodies that monitor technological progress and report on the need to update outdated regulations; and regulations based on principles, rather than rigorous standards, that enable judges to adjust decisions to technological progress. Roxin supports this perspective in his theory of crime, stating that the law should prevent overly strict rules that disregard social evolution (Roxin C., 2006). The progress of artificial intelligence has created new possibilities and challenges for the field of criminal law. Although AI can simplify law enforcement through prevention and assessment tools, it also enables the emergence of new types of crimes. Two sectors particularly vulnerable to these new types of crimes are money laundering and terrorist financing, due to the potential for Artificial Intelligence to be used to conceal or simplify criminal activities. This study aims to examine how criminal law can address these challenges by defining an appropriate regulatory framework for the conduct that can be carried out through the use of Artificial Intelligence in these crimes.