PROBATE CORNER
PROBATE CORNER
Griefbots- Digitally Immortal Decedents
DAVID M. GARTEN
Grief resulting from the death of a loved one can be an overwhelming emotion that involves complex feelings of psychological distress, sadness, or pain that can be difficult to navigate. To address this emotional experience, an application of artificial intelligence( AI) has recently emerged in the form of griefbots. These AI programs are designed to mimic deceased individuals by using“ digital replicas” of the individual’ s voice or likeness, ultimately allowing individuals to remain digitally immortal. Griefbots are intended to help users with their grieving process after the loss of a loved one. However, the abilities of griefbots to interact with the user and the digital version of the deceased raises significant ethical and legal questions and concerns about data collection and its implications to human dignity. In addition, emotional distress may result if relatives of the deceased become psychologically dependent on a griefbot and unable to move on from their grief.
I. What is a griefbot?
Griefbots provide users with emotional connection and comfort during times of bereavement. Using language models and videos of the deceased, griefbots may come in the form of chatbots that are able to generate conversations from a firstperson perspective, replicating the speech patterns and personality of the deceased. More advanced versions of griefbots allow users to interact with video replicas or avatars of the deceased.
Besides the undeniable eeriness of AIenabled immortality, griefbots present a plethora of ethical and legal challenges about what happens to your digital data post-mortem. For example, who owns and has control over your digital footprint? An overriding concern is the potential for personal information to be misused through griefbots by instructing the bot to do or say things contrary to the decedent’ s known intentions. Other than the obvious manipulation of the decedent’ s finances, griefbots can be exploited to fulfill fantasies or create pornography. Current regulations governing AI do not adequately address challenges related to potential misuse of the data of the deceased.
In general, whether a deceased person’ s estate has a post-mortem right to his / her digital replica is primarily a question of state law. Twenty-four states, including Florida, recognize a transferable property right of the deceased’ s persona to the deceased’ s heirs, requiring consent from the holder of those rights before they can be used in commercial ways. However, current privacy laws in most states are not written with AI in mind, and do not adequately address the ethical and legal challenges presented by the rapid advancement of AI and new technologies creating digital replicas. Griefbots illustrate this particular gap in the legal structure and highlight the need for a human dignity approach and property right protection to be adopted in AI regulation.
Although Florida Fiduciary Access to
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Digital Assets Act(§§ 740.001- 740.11) controls ownership of digital assets such as cloud-based Internet accounts with stored photos and messaging, the act is limited in its scope and applies only to fiduciaries who are already bound to act in compliance with their fiduciary duties and powers. It does not extend to family members or other people who seek access to the digital assets unless they are also fiduciaries. Moreover, the ability of a fiduciary to access a digital asset does not entitle the fiduciary to own the asset, or make transactions with the asset, or control the“ digital replica” of the decedent. The Act’ s only application is to an electronic record, which includes electronic communications, and does not apply to the underlying asset or liability unless the asset or liability is itself an electronic record.
II. Emerging Laws
( a) New York Civil Rights Law § 50-f, grants a post-mortem right of publicity for deceased individuals domiciled in New York at death, protecting their name, voice, signature, photograph, or likeness from unauthorized commercial use for 40 years. The law applies to " deceased personalities " and " deceased performers ". On December 13, 2024, New York enacted N. Y. Gen. Oblig. Law § 5-302( eff. 1 / 1 / 25) thereby recognizing a post-mortem right of publicity applicable to " digital replicas " of dead performers.
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