People die but their data may endure, which troubles legal scholar Victoria Haneman.
The emergence of generative AI means a person’s digital presence can be recreated and revived, even if they or their family don’t want that kind of memorial.
Haneman, Chair of Fiduciary Law at the University of Georgia School of Law, argues US law should give a dead person’s estate a limited right to digital deletion as a defense against the exploitation of digital remains.
She makes that case in an article titled “The Law of Digital Resurrection,” published earlier this year in the Boston College Law Review.
“Digital resurrection by or through AI requires the personal data of the deceased, and the amount of data that we are storing online is increasing exponentially with each passing year,” Haneman wrote.
“It has been said that data is the new uranium, extraordinarily valuable and potentially dangerous. A right to delete will provide the decedent with a time-limited right for deletion of personal data.”
There’s already a burgeoning business in training generative AI models on personal digital files, so the models can respond in ways that evoke the creator of those files. Firms like Seance AI, StoryFile, Replika, MindBank Ai, and HereAfter AI offer the ability to recreate a person’s voice and likeness.
A living person may have some say on the matter through the control of personal digital documents and correspondence. But a dead person can’t object, and US law doesn’t offer the dead much data protection in terms of privacy law, property law, intellectual property law, or criminal law.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), a law developed to help fiduciaries deal with digital files of the dead or incapacitated, can come into play. But Haneman points out that most people die intestate (without a will), leaving matters up to tech platforms. Facebook’s response to dead users is to allow anyone to request the memorialization of an account, which keeps posts online. As for RUFADAA, it does little to address digital resurrection, says Haneman.
The right to publicity, which provides a private right of action against unauthorized commercial use of a person’s name, image, or likeness, covers the dead in about 25 states, according to Haneman. But the monetization of publicity rights has proven to be problematic.
Haneman says that there are some states where it’s theoretically possible to be prosecuted for libeling or defaming the deceased, such as Idaho, Nevada, and Oklahoma, but adds that such prosecutions have declined because they tread upon the constitutional right to free expression.
The situation is different in Europe, she observes, where human dignity is considered a fundamental right that informs European privacy rules. In Europe, for example, there’s a right to be forgotten and this has been extended in France to include the removal of personal data from user accounts of the deceased, and in Italy to the right of heirs to access and potentially erase a dead relative’s personal data.
The right to be forgotten wouldn’t work in the US, Haneman argues, because it would likely be deemed a violation of the First Amendment.
A recent California law, the Delete Act, which took effect last year, is the first to offer a way for the living to demand the deletion of personal data from data brokers in one step. But according to Haneman, it’s unclear whether the text of the law will be extended to cover the dead – a possibility think tank Aspen Tech Policy Hub supports [PDF].
Haneman argues that a data deletion law for the dead would be grounded in laws governing human remains, where corpses receive protection against abuse despite being neither a person nor property.
“The personal representative of the decedent has the right to destroy all physical letters and photographs saved by the decedent; merely storing personal information in the cloud should not grant societal archival rights,” she argues. “A limited right of deletion within a twelve-month window balances the interests of society against the rights of the deceased.” ®
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