This is a really interesting and well written case update/critique. I agree with the author's that the judge's reliance on Anthropic's fine-print privacy policy does not satisfy the actual legal standard governing privilege. Or if it did, it would raise extremely thorny issues around all of the cloud-based technology products that lawyers and clients use every day.
That said, I note that the court's opinion specifically calls out Anthropic's practice of *training models on user data* as a reason why the defendant could not have expected confidentiality. I do not use these cloud models for anything important precisely because they are operated by companies, like Anthropic, that are completely untrustworthy.
It seems the key here isn't—or shouldn't be—what kind of service the defendant used, but whether something special happens when a service is involved in preparing a message to his lawyer.
IMO if the "for my lawyer" purpose/intent is not in dispute, then it shouldn't matter whether the service is a search-engine, an LLM, a browser-based word processor, or the drafts/sent folders of a webmail client.
The reverse direction is much clearer: Imagine a client receives an obviously-privileged email from their lawyer, and uses a cloud text-to-speech service to listen to it. Should that audio/text be admissible as evidence? Hell no.
That's one judge. An audio tape made by a criminal defendant is intended for review by his counsel is a non-discoverable privileged communication. The tape retains this character if reviewed by an attorney-authorized paralegal. What difference exists where the attorney has the tape summarized by AI. I respectfully submit that Hizzoner is incorrect.
We might also ask if the best venue to decide national AI regulation is a single judge sitting in a criminal case involving a fraudster. If Judge Rakoff is correct, then a trade secret shared with AI is no longer a trade secret. This affects not just a single NY criminal defendant, but anyone that runs a company and wants to keep business practices secret. I would submit that this is no way to regulate a field such as AI.
In United States v. Heppner, Judge Rakoff of the Southern District of New York ruled that written exchanges between a criminal defendant and generative AI platform Claude were not protected by attorney-client privilege or the work product doctrine.
That said, I note that the court's opinion specifically calls out Anthropic's practice of *training models on user data* as a reason why the defendant could not have expected confidentiality. I do not use these cloud models for anything important precisely because they are operated by companies, like Anthropic, that are completely untrustworthy.
IMO if the "for my lawyer" purpose/intent is not in dispute, then it shouldn't matter whether the service is a search-engine, an LLM, a browser-based word processor, or the drafts/sent folders of a webmail client.
The reverse direction is much clearer: Imagine a client receives an obviously-privileged email from their lawyer, and uses a cloud text-to-speech service to listen to it. Should that audio/text be admissible as evidence? Hell no.
We might also ask if the best venue to decide national AI regulation is a single judge sitting in a criminal case involving a fraudster. If Judge Rakoff is correct, then a trade secret shared with AI is no longer a trade secret. This affects not just a single NY criminal defendant, but anyone that runs a company and wants to keep business practices secret. I would submit that this is no way to regulate a field such as AI.
But that's not what happened here.