Lawyer: Dead need data deletion rights to prevent AI resurrection
The digital footprint left behind by individuals increasingly outlives them, posing a complex new challenge in the age of generative artificial intelligence. As AI models gain the capacity to recreate voices, likenesses, and even personalities from existing data, legal scholars are grappling with the implications for post-mortem privacy and control. One such expert, Victoria Haneman, Chair of Fiduciary Law at the University of Georgia School of Law, argues compellingly that the deceased, or rather their estates, should possess a limited right to digital deletion to prevent the unauthorized exploitation of their digital remains.
Haneman outlined this critical need in her article, “The Law of Digital Resurrection,” published in the Boston College Law Review. She emphasizes that recreating a person through AI necessitates their personal data, and the volume of such data stored online continues to grow exponentially. Likening data to “the new uranium”—extraordinarily valuable and potentially dangerous—Haneman asserts that a time-limited right to delete personal data would empower the deceased. Indeed, a burgeoning industry already exists, with companies like Seance AI, StoryFile, Replika, MindBank Ai, and HereAfter AI offering services that train generative AI models on personal digital files to evoke the presence of the departed.
While living individuals retain some control over their digital documents and correspondence, the deceased currently have minimal data protection under US law, whether through privacy, property, intellectual property, or criminal statutes. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was designed to assist fiduciaries in managing the digital files of the deceased or incapacitated. However, Haneman notes that most people die without a will, leaving the fate of their digital legacy to the discretion of tech platforms. For instance, Facebook allows accounts to be memorialized upon request, preserving posts indefinitely, yet RUFADAA does little to address the burgeoning issue of digital resurrection.
Existing legal avenues offer limited recourse. The right to publicity, which provides a private cause of action against the unauthorized commercial use of a person’s name, image, or likeness, extends to the deceased in approximately 25 states. Yet, the monetization of these publicity rights has proven problematic. Similarly, while a few states like Idaho, Nevada, and Oklahoma theoretically permit prosecution for defaming the deceased, such cases have become rare due to potential conflicts with constitutional free expression rights.
In stark contrast, Europe offers a more robust framework for post-mortem digital rights, grounded in the fundamental right to human dignity. The European “right to be forgotten,” for example, has been extended in France to include the removal of personal data from deceased user accounts and in Italy to grant heirs the right to access and potentially erase a dead relative’s personal data. However, Haneman contends that transplanting such a right to the US would likely face First Amendment challenges, given its implications for free speech.
Despite these legislative hurdles, some progress is emerging in the US. California’s Delete Act, which took effect last year, allows living individuals to demand the deletion of their personal data from data brokers in a single step. While it remains unclear whether this law will extend to the deceased, think tanks like the Aspen Tech Policy Hub support the possibility. Haneman proposes a data deletion law for the dead, drawing a powerful parallel to existing laws governing human remains, which afford protection against abuse despite corpses being neither persons nor property. Just as a personal representative can destroy physical letters and photographs, she argues, merely storing personal information in the cloud should not automatically grant society archival rights. Her suggested compromise: a “limited right of deletion within a twelve-month window,” balancing societal interests with the rights of the deceased.