73 Am. U. L. Rev. 1271 (2024).

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Abstract

Death and life. Yin and yang. The beginning and the end. But what if the end was only the beginning for those we leave behind?

Advancements in generative artificial intelligence technology have paved the way for “real” conversations with the people we really love. Companies across the globe are tapping into the $100 billion posthumous communication industry through the development of algorithms, chatbots, and in some instances, fully immersive virtual reality experiences with those no longer with us. As our society grapples with understanding the implications of artificial intelligence both generally and in the bereavement process, what may be seen by some as a tool to aid in the journey of one’s grief may just as well be seen by others as a slippery slope chock full of ethical considerations.

Thus, this Article explores the historical and technological background, legal framework, and critical ethical issues surrounding generative artificial intelligence and posthumous communication technology before offering a tangible and effective two-pronged policy recommendation that has the potential to fundamentally change the way U.S. policymakers view life and death. It should be noted that this Article serves as the first piece of legal scholarship addressing the issue of posthumous communication technology and seeks to boldly envision a world where every person has the opportunity to retain authority over their likeness, even if that authority is exercised postmortem.

* Judicial Law Clerk, U.S. Court of International Trade, New York, New York. J.D., Vanderbilt University Law School. I would like to extend my gratitude to my late uncle, Dwarka Divecha, whose conversations both posthumously and in real life dared me to consider concepts outside of my own understanding. Many thanks are also in order to legal scholars Jordan Grundhoefer, William Chandler, and Jason Choe for their thoughtful commentary throughout the drafting process. Last, but certainly not least, I sincerely thank the editors of the American University Law Review for their hard and careful work editing this Article. Please note: the views expressed in this Article are the Author’s alone and do not reflect the viewpoint, policy, or position of any employer or educational institution. Responsibility for all error remains with the Author.