Imagine a future where you never truly leave. After passing on, a digital version of you continues to communicate with loved ones, answer questions, and mimic your unique quirks and voice.
This concept, popularly known as a 'digital twin', blurs the line between life and death, and with Halloween looming, it raises chilling legal questions about privacy, ownership, and the ethics of legacy AI.
The Right to Rest in Peace (Or Not): Digital Twins in a Posthumous Era
The creation of a legacy AI—a digital twin that interacts as if you were still alive—introduces a peculiar twist in data protection and intellectual property. These systems are often designed to replicate mannerisms, speech patterns, and personality, creating a virtual presence that may outlive the individual. Yet, under EU law, posthumous rights to privacy are nearly non-existent, leaving these digital twins in a legal grey area. Since the deceased have no rights under the General Data Protection Regulation (GDPR), legacy AI companies like Re;memory in South Korea, which recreates the likeness of deceased individuals for grieving families, sidestep direct privacy concerns by focusing only on data from the deceased.
However, for these systems to work effectively, they must also collect and process data from the living, particularly loved ones who interact with the digital twin. This raises significant legal questions. Under the GDPR, the lawful basis for processing the data of the living might fall under 'legitimate interests', but it's far from a clean fit. Companies would need to conduct a balancing test to ensure that the rights of the living users are not overridden by the novelty of interacting with an AI representation of the deceased.
The AI Act and Digital Twins: Who Controls the Undead?
The EU's forthcoming AI Act categorises AI applications by risk, which could be particularly relevant for legacy AI that blurs human-computer interaction boundaries. A digital twin might, for example, qualify as a high-risk AI if it replicates human traits to a degree that affects users' mental health or autonomy. If categorised as such, the AI Act would impose strict regulations, possibly mandating disclosures that clarify the AI nature of the digital twin, ensuring users are aware that they're interacting with a simulation rather than a real person.
However, this introduces questions about who holds 'ownership' over a digital twin. If a family authorises the creation of a digital twin, do they control it indefinitely? The AI Act could impose conditions on how these digital entities interact with the living, which could prevent misuse, unethical applications, or unauthorised modifications to the AI's responses.
The DSA and Digital Content Moderation: Protecting Against the Revenant AI
The Digital Services Act (DSA) has implications for managing legacy AI in the digital world, focusing on content accountability. For example, platforms could be responsible for ensuring that digital twins aren't used maliciously or manipulated, potentially leading to harmful or false interactions with the living. If a digital twin were hacked or exploited, platforms could be liable under the DSA, ensuring that the digital 'afterlife' is safeguarded from exploitation.
Intellectual Property: Who Owns the Digital 'You'?
Legacy AI also raises questions about intellectual property. Creating digital twins often involves using vast amounts of the deceased's content, like video footage, audio, and writing. While this might seem clear-cut, the interplay between the deceased's data and the personal data of living users adds a dimension of ambiguity. There is currently no EU-wide posthumous right of publicity or similar protections. While some U.S. jurisdictions grant the 'right of publicity' after death, the EU lacks this structure, meaning companies can potentially use a deceased's likeness without long-term oversight or compensation to their estate.
Ethical Implications: Consent and Legacy Manipulation
Beyond legality, there are profound ethical considerations. Did the deceased truly consent to 'live on' in this manner? And what if the digital twin begins to 'evolve' in ways inconsistent with the individual's values or personality? Companies like DeepBrain AI offer an example, relying heavily on pre-recorded material and prompting loved ones to interact with these digital memories. A concern is that this could risk distorting the individual's authentic self. From a psychological perspective, could such developments trap families in a cycle of prolonged grief or alter memories if the AI responses diverge too far from known character traits?
Concluding Thoughts: The Revenant AI
Legacy AI opens a Pandora's box of digital immortality. Without targeted regulations, the digital undead could roam the internet unchecked, potentially intruding on both privacy and memory. The forthcoming AI Act and DSA introduce a framework for addressing these concerns. Ultimately, the spectre of an 'eternal' digital twin raises a final question: do we have a right to control our legacy in the afterlife, even in a digital sense? This Halloween, the eerie potential of legacy AI reminds us that technology, like the dead, does not easily yield its grip on the living.
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