Written by: Christine Bacon, Esq.

In today’s business landscape, virtual meetings have become ubiquitous. Numerous AI services will record conversations, take meeting notes, and provide transcripts. This technology makes it easier than ever to record sensitive conversations without a participant’s knowledge or consent, raising issues for litigation counsel.

For example, an attorney colleague of mine recently engaged in a video meeting with her client that involved a highly sensitive attorney-client privileged discussion. Afterwards, she was surprised to receive a recording of the meeting from an AI service company. The client had used the AI technology to record their entire conversation without the attorney’s knowledge or consent. To make matters worse, the attorney resides in a jurisdiction that requires the consent of all parties to a conversation rather than just one.

Does the use of AI technology to record a conversation between an attorney and client break privilege? Can a recording obtained by a client using AI technology be admitted into evidence? Does it violate criminal wiretapping statutes? Another consideration is whether new privacy statutes are at play in addition to traditional wiretapping statutes.

As courts grapple with these new concerns, they are asking questions such as whether a particular software is more akin to a tape recorder or an eavesdropper, which was the analysis recently undertaken by a U.S. District Court in Rodriguez v. Ford Motor Co., (SD Cal Mar. 15, 2024, No. 3:23-cv-00598-RBM-JLB).

In Rodriguez, a plaintiff challenged Ford’s website chat feature under the California Invasion of Privacy Act, arguing that it ‘secretly enables and allows a third-party spyware company to eavesdrop on the private conversations of everyone who communicates through the chat feature’ at the company’s website. After a detailed analysis of the technology and its uses, the court ultimately dismissed the plaintiff’s case.

One thing is certain. Whether considering the privacy, privilege, or criminal implications of AI, lawyers need to understand the technologies at issue to successfully advocate for their clients. At The Beckage Firm: Tech, Data Security & Privacy Law Firm we have lawyers who are also technologists cited by international media, and speak globally on artificial intelligence, space, crypto, quantum, blockchain, emerging tech, and data security and privacy matters.