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UC Law Constitutional Quarterly

Abstract

From quills to queries, from secrets once scrawled in private to personal prompts on glowing screens, debates over privacy rights endure. Generative Artificial Intelligence (GenAI) further confounds by conflating confession with code, and intimate thoughts with algorithms. Although technologists have predicted AI’s ascent before, and have critically assessed privacy rights for decades, the unprecedented engagement with GenAI following OpenAI’s public launch of ChatGPT marks a distinct moment— one where a generation of rights holders actively builds and converses with emerging platforms while the law strains to keep pace.

Existing privacy doctrines are ill-prepared for GenAI’s dynamic data processing and its power to extract insights from seemingly benign interactions. Appellate decisions like United States v. Warshak (6th Cir.)(recognizing email’s heightened privacy expectations), and hiQ Labs, Inc. v. LinkedIn Corp. (9th Cir.)(questioning limits on data scraping), along with Supreme Court precedent such as Carpenter v. United States (applying mosaic theory to reveal “deeply revealing” data), signal evolving protections in the digital realm. Yet these precedents do not fully anticipate GenAI’s capacity to co-create novel personal information.

This article argues we have reached a critical juncture requiring a refreshed legal framework. It introduces the term “Gen^AI” to highlight this unique convergence: a technological leap (GenAI) and the generation navigating its constitutional and privacy implications (the AI Generation). In response, it offers the Generative Privacy Doctrine (“GPD”)—a flexible legal framework that recalibrates privacy rights in real time. GPD tackles inferential data creation, mandates iterative user consent, and imposes carefully tailored third-party restrictions that deter exploitative or discriminatory use. Aligning with global data-protection norms (e.g., the GDPR) and clarifying domestic principles (including the “third-party doctrine” and contractual consent), GPD offers a way to protect individual dignity without stifling AI innovation.

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