Can AI be Consentful?

Abstract: The evolution of generative AI systems exposes the challenges of traditional legal and ethical frameworks built around consent. This chapter examines how the conventional notion of consent, while fundamental to data protection and privacy rights, proves insufficient in addressing the implications of AI-generated content derived from personal data. Through legal and ethical analysis, we show that while individuals can consent to the initial use of their data for AI training, they cannot meaningfully consent to the numerous potential outputs their data might enable or the extent to which the output is used or distributed. We identify three fundamental challenges: the scope problem, the temporality problem, and the autonomy trap, which collectively create what we term a ''consent gap'' in AI systems and their surrounding ecosystem. We argue that current legal frameworks inadequately address these emerging challenges, particularly regarding individual autonomy, identity rights, and social responsibility, especially in cases where AI-generated content creates new forms of personal representation beyond the scope of the original consent. By examining how these consent limitations intersect with broader principles of responsible AI (including fairness, transparency, accountability, and autonomy) we demonstrate the need to evolve ethical and legal approaches to consent.