ABSTRACT
Contemporary governance of consumer artificial intelligence is keyed almost entirely to the user: the person who opened the application, accepted the terms, and can therefore be said to have agreed. That keying is not a drafting habit. It is the load-bearing assumption of the whole apparatus, and it produces a structural blind spot rather than an occasional gap. The person standing in the room while a wearable device captures him, the person on the other end of a conversation an assistant is coaching, and the woman killed by her son after months of conversations between him and a chatbot share one property: they never agreed to anything, and every instrument built to protect people from these systems begins by asking whether they did. This paper names that population and argues that its invisibility is architectural. It proceeds in five steps. First, it shows that American products liability abandoned the user limitation more than fifty years ago, quickly and without serious resistance, so the doctrinal resources for reaching the non-user are neither novel nor contested. Second, it shows that the consent architecture governing consumer artificial intelligence has no corresponding move available, because consent is the mechanism by which the apparatus identifies whom it protects. Third, it demonstrates that the obvious repair, a bystander opt-out, is structurally impossible in the ambient-capture case rather than merely burdensome, since determining whether a person has opted out requires the identifying operation the opt-out exists to prevent. Fourth, it argues that the resulting exposure is not distributed evenly, that the people least able to remove themselves from an instrumented environment absorb it, and that the empirical record on this population is thin for the same structural reason the protection is thin. Fifth, it states the diagnosis and its limits. The contribution is not a proposed remedy. It is a diagnosis: the field has adopted a proxy, agreement, for a thing that matters, exposure, and has been enforcing the proxy against the people for whom it never held.
Gilly, Travis, Never a User: The Third Party the Consent Apparatus cannot see (August 3, 2026).
Leave a Reply