>A little over two decades ago, my then girlfriend was arrested for "writing malware" (which was not against the law at the time, and which was never released into the wild and never caused any damage).

Criminal law places a lot of emphasis on intent, hence laws about the mere possession of breaking and entering tools, and the old adage about always bringing along gloves and baseball if you want to carry around a baseball bat. Without more details about your specific case, my guess is that she did indeed write malware or hacking tools, and there were vague signs it wasn't purely academic, hence why they threw the book at her.

That's all in contrast to whatever the AI labs are doing, which might have actually resulted in people getting hacked, but you'd have a hard time arguing that they were intending on that to happen. Maybe if the targets end up being anti-datacenter activists or other AI labs you might have a better case, but they did vaguely try to contain the model. Moreover "hacking tools" aren't even illegal, if you have a plausible non-criminal (ie. security) angle, eg. nmap. The same could be argued for AI models, even if they're running them against exploitgym or whatever. Having an army of lawyers to defend yourself doesn't hurt either.