The transit from digital administration towards an algorithmic Public Administration in the era of Artificial Intelligence: The need for a guarantee constitutional and legal system in the provision of public services in Peru

Abstract

The birth of the digital administration - a component part of the so-called fourth industrial revolution - has generated, without a doubt, transcendental changes that have revolutionized the development of public administrations worldwide, through the massive and increasingly constant use of technologies. of information and knowledge (ICTs), intensifying its impact during the Covid 19 pandemic and after it, which has undoubtedly had enormous advantages in avoiding the confinement of public functions and services, but which in turn time has brought important challenges in the face of certain negative edges for the citizen, arising from its implementation and generalization, such as the so-called digital gaps, the exclusion of vulnerable groups, the violation of data privacy, etc.

The introduction of these disruptive technologies has brought with it the growing massification of chatbots, conversational virtual assistants, inserted in the interfaces of Public Administrations, which allow the automation of various tasks without the need for direct human intervention, freeing the official or public servant from them to be able to offer better quality tasks. However, the regulation of these aspects must accompany and offer a legal and constitutional framework that allows not only its use but also a due weighting between the benefits it brings to the public administration and the protection of citizen rights, in particular those that lack of the means and capacities to adapt to this new reality.

It is necessary to provide a more precise constitutional and legal framework, which leaves open the possibility for the citizen to interact in virtual environments made available by the public administration, in a friendly and inclusive way, provided that the fundamental right to reserve is guaranteed. of humanity, in their way of connecting with the administration or on the occasion of automated decisions, if the forced use could jeopardize or affect their fundamental rights, their dignity or discrimination or biases are perceived, both due to digital gaps of use, as infrastructure.

It constitutes a challenge for constitutional doctrine and jurisprudence, as well as for legal operators, that once all these rights are recognized at the constitutional and legal level, to be able to apply "in abstracto", the so-called "proportionality test" (also called weighting test), through its three sub-principles, as the Peruvian TC calls and recognizes them: suitability, necessity and weighting.

Summary: 1).- Starting point: evolution of the traditional Peruvian public administration towards an automated public administration. 2).- Legislative deficiencies in the Peruvian legal system regarding automated administrative action. 2.1.- The reform of the Peruvian public administration and the necessary digital regulation: a pending challenge. 3).- The evident tension between administrative efficiency and the new rights in virtual environments. 3.1. The administrative efficiency of digital administration and the citizen: possible tensions between administration and administered; 3.2. Fundamental Rights and Guarantees of the digital citizen in the virtual environment: new rights that deserve to be constitutionalized. 4).- Some governing precepts in automated (robotic) administrative action. 5).- Main legal and technical issues regarding the implementation of AI in electronic administration: the case of Peru and its law Nº 31814, which promotes the AI. 6).- As a corollary.