Hate To Say I Told You So Again: Your Chats Ain't Private - Above the Law

"Judge Rakoff made short work of Heppner's attorney-client privilege argument. First of all, the communications between Heppner and Claude were not between lawyer and client but between a client and a GenAI platform. Second, the communications were not confidential. Under the terms of use, it was clear that Claude collects data from those who use it and then uses those communications for training purposes."

"The key concept cited by Judge Rakoff was that Heppner consulted Claude without any suggestion or direction of counsel when he: a) outlined for Claude his defense strategy and sought comments, b) outlined the law and facts he might argue, and c) asked what the other side might argue. He then gave what he had learned from Claude to his counsel."

"According to the court, application of the attorney-client privilege requires a communication between a client and their lawyer, that was intended to be and was kept confidential, and was for purpose of obtaining legal advice."

A Southern District of New York ruling in United States v. Bradley Heppner determined that exchanges between a defendant and the GenAI platform Claude were not protected by attorney-client privilege or work product doctrine. Heppner consulted Claude without attorney direction to outline his defense strategy, discuss applicable law and facts, and anticipate opposing arguments before sharing findings with counsel. The court rejected his privilege claims on two grounds: communications with GenAI platforms occur between client and machine rather than client and lawyer, and they lack confidentiality since platform terms of service explicitly authorize data collection for training purposes. Users receive notice that their inputs are not confidential and may be disclosed.

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