The problem of the place of criminal law in the protection of children against the threats resulting from the use of artificial intelligence

https://doi.org/10.63189/JEDY5930

Probably in every decade and in every generation there are voices stating that certain times are a breakthrough period in history. Without entering into typical historical considerations, it is difficult to disagree that the contemporary intensity of global technological development causes the time between individual breakthrough discoveries to be significantly shorter in relation to what can has been observed in the past centuries. The increasing pace of technological change obviously entails the need to constantly adapt the legal system so that it responds to new phenomena, new types of behaviour, new fields of activity, but also new types of threats.

Not so long ago, the breakthrough was achieved by the spread of the Internet. Then the Internet itself and related technologies began to develop, moving it from stationary computers to mobile devices, making it truly widespread and available literally at your fingertips in all circumstances. From the very beginning of the functioning of the Internet, differences in views on what legal shape should be given to its functioning and how to ensure the enforcement of protective solutions that will be adopted at the national and international levels have been widely visible.

Among contemporary issues identified as key to technological development, the popularization of artificial intelligence undoubtedly occupies a prominent place. What in the past was the domain of largely theoretical considerations, as well as the basis for philosophical discussions and the subject of sometimes engaging writing and film activities, in recent years has begun to materialize on many levels in the form of publicly available applications and functionalities.

Without the need to perform tedious, time-consuming work using expensive and hard-to-access machines, an ordinary Internet user is presently able to not only find information, images, films or music in the global resources of the Internet in just a few moments, but is also able to generate them. The subject of this short paper is not the extremely complicated topic of the essence of artificial intelligence and the relationship between the functioning of the algorithms themselves and the activity of humans who provide them with external information. It is enough to point out that in the sphere of activity related to the creation of images or entire films, currently widely available software allows the creation of effects that in the past would have had to be worked on by entire graphic studios. Such wide availability of this type of creativity means not only mass access, but also more difficult determination of the manner of conducting this activity, identifying the people involved and subjecting them to legal control.

Taking into account the above remarks, this brief article aims to highlight one of the many problems related to the protection of children in the present conditions of dynamically and massively developing possibilities provided by artificial intelligence, especially when it comes to the unprecedented availability of generating images and audiovisual works. Comments presented in this work focus on the sphere of criminal law the basic question about its place of criminal law in the sphere of child protection versus threats arising from artificial intelligence.

The approach to criminalizing adult pornography differs between legal systems. For example, under the Polish Penal Code, possession of such materials is generally not prohibited. Pornography depicting adults becomes a crime when it is publicly presented in such a way that it may force its reception on a person who does not wish to do so (Article 202 § 1 of the Polish Penal Code). At the same time and for obvious and fundamental reasons, all forms of pornography involving children are widely prosecuted and punished. It is worth emphasizing that, according to the currently applicable solutions, the punishment for such pornography covers not only materials involving an actual child, but also materials presenting realistic images of a non-existent child, e.g. a computer generated or drawn one. Such solutions introduce the long-postulated penalty for the so-called simulated child pornography. In the Polish Penal Code, such cases are penalized by Article 202 § 4b. The supranational (European Union) basis for such solutions is provided by various normative acts, including: Council framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography [see: definition presented in Article 1 (b) (ii) and (iii)], replaced later by Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography [see: definition presented in Article 2 (c) (iii) and (iv)]. Similarly wide definition of such pornography is presented i.a. in the Council of Europe Budapest Convention on Cybercrime of 23 November 2001 [see: definition presented in Article 9 (2) (b) and (c)].

The comments presented above should be applied to the problem of penalization the stages of crime. A quite obvious and generally globally accepted standard of liability for a crime is liability not only for committing a specific act, but also liability for attempting to commit it. The framework of this work does not allow for a broader reference to the nuances of the structure of an attempt, including, above all, the difference between a punishable stage of attempt (when a perpetrator directly aims to accomplish a crime) and an earlier stage of preparation to commit a crime (when – as stated in Article 16 § 1 of the Polish Penal Code – the perpetrator, in order to commit a prohibited act, undertakes activities aimed at creating conditions for undertaking an act aimed directly at committing it, in particular obtains or prepares means, collects information or prepares an action plan). Remaining at a high level of generality and referring to the standards of criminal liability applicable, among others, in Poland, it should be noted that while attempts are generally penalized automatically, preparation to commit a crime is penalized in exceptional cases when the law clearly provides for it for a given crime.

On the basis of the obvious need to penalize child pornography – including the already mentioned solutions related to the penalization of such pornography that is generated artificially – problem of penalization of the foreground of committing a crime becomes important. As can be seen in many campaigns raising awareness of the need to protect children's image on the Internet, artificial intelligence allows the creation of pornography using materials relatively distant from illegal nature. Thus, in order to produce pornography, the perpetrator may obtain photos from the victim that are generally not erotic in nature. So how should criminal law react in a situation where, for instance, a significant number of various photos of children are found in a given person's possession, and the possession of such materials cannot be convincingly explained by family ties or professional needs? A few decades ago, the technological gap between obtaining such photos and transforming them into something illegal was much wider. Currently, such a barrier is significantly smaller. Thus, should the protective mechanisms rely mostly on the protection provided by the security measures contained in the artificial intelligence algorithms themselves and on increasing the awareness of the risks of parents sharing photos of children on the Internet? Or should the criminal prohibition framework be established broadly? But how can this be done while remaining consistent with the needs for the most far-reaching of children's welfare and the minimum guarantee requirements applicable to criminal law? Does the ease of transforming legal material into illegal pornography justify a broader look at the category of attempt, and thus blurring the guarantee rules regarding the specificity of the crime? Or should the legal authorities simply be extremely thorough about analysing circumstances surrounding such possession and, on their basis, be able to determine the illegal elements of the initiated conduct? However, it seems that in the latter case it would still be considering punishing the stage of preparation, and not the attempt itself. It is worth signalizing that at the level of European Union legislation, the issue of penalization also the phase of preparation for committing sexual offenses against children is identified [see: point (19) of the preamble of the abovementioned Directive 2011/93/EU].

No matter how unpleasant and difficult such considerations are, unfortunately, it seems that the current rapid technological growth related to the possibility of generating illegal content based on publicly available materials does not allow to marginalize them. The question remains whether the needs to protect such an exceptionally sensitive group as children will result only in specific changes in criminal law, combined with expansion of the scope of prohibited acts so that the current state of technological development is taken into account? Or may these needs have a broader future impact on criminal law and criminal procedure, and, for instance, influence the modification of the rules of criminal liability or the distribution of the burden of proof?