Digital Data Erasure Rights for the Deceased Prevents Artificial Resurrection by AI, Lawyer Argues
In the digital age, a new business is emerging – training generative AI models on personal digital files, allowing them to respond in ways that mimic the creator of those files. However, the legal landscape surrounding a deceased person's right to digital deletion and protection of their digital remains in the United States is still evolving.
Victoria Haneman, a legal scholar and Chair of Fiduciary Law at the University of Georgia School of Law, argues for a limited right to digital deletion for a deceased person's estate. Currently, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), adopted by multiple states including California, governs access to a deceased person's digital assets such as social media accounts, cloud storage, and emails. RUFADAA allows executors or fiduciaries to access digital accounts if authorized, with some variations depending on state implementation.
However, access usually requires prior authorization by the deceased via will, trust, or powers of attorney, or platform-specific arrangements like legacy contacts or designated persons. Without explicit arrangements, families often face legal hurdles, court orders, or platform restrictions that limit access or deletion.
Recent scholarly work calls for a statutory Right to Digital Euthanasia, which would legally mandate options for digital deletion, posthumous consent regimes, digital executors, and digital death certificates to protect human dignity in the digital afterlife. This reflects ethical, legal, and existential challenges posed by algorithmic immortality, AI, and continuing digital presence after death.
Enhanced government initiatives aiming to strengthen cybersecurity and digital infrastructure focus on protecting data integrity and privacy broadly, but they do not yet directly address posthumous digital rights or deletion explicitly.
In Europe, human dignity is considered a fundamental right that informs privacy rules. In Europe, 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.
Most people die intestate (without a will), leaving matters regarding their digital assets up to tech platforms. Haneman argues that a data deletion law for the dead should be grounded in laws governing human remains. The emergence of generative AI means a person's digital presence can be recreated and revived even after death, without the consent of the deceased or their family.
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. US law does not offer much data protection for the deceased in terms of privacy law, property law, intellectual property law, or criminal law.
A recent California law, the Delete Act, is the first to offer a way for the living to demand the deletion of personal data from data brokers in one step, but 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. Haneman's argument is presented in an article titled "The Law of Digital Resurrection," published in the Boston College Law Review this year.
Facebook allows anyone to request the memorialization of a deceased user's account, keeping posts online. However, the growing debate over digital deletion for the deceased is a testament to the evolving nature of digital estate planning and the need for clear, statutory rights to digital deletion and management of digital remains to protect privacy and dignity beyond death.
- Given the emergence of generative AI models trained on personal digital files, the need for statutory rights to digital deletion is increasingly pertinent, as highlighted by legal scholar Victoria Haneman.
- As AI and technology advance, the question of posthumous digital rights, such as the right to digital deletion, becomes more complex, with the current legal landscape in the US evolving to address these challenges.
- In the debate over digital deletion for the deceased, the concept of a statutory Right to Digital Euthanasia has been proposed, aiming to protect human dignity in the digital afterlife, an issue that is ethically, legally, and existentially significant in an age of algorithmic immortality.
