When AI Chat History Bites
Just last week, I shared an article about the hidden dangers of AI Chat history.
A few days later, thanks to Kelly Twigger, we had a case where the AI chat history was part of a sanction:
When Your Client’s ChatGPT History Proves Intent for Sanctions
There was a lot going on in this case, and I’m not sure the sanctions might not have been called for even without the ChatGPT history, but it certainly didn’t help:
Talk to your clients about AI before they use it on their case. After Heppner came out, I and a number of colleagues sent emails to our clients that same day. There are fair questions about whether Heppner holds up in a civil context, but Conlan shows the other half of the risk: unprotected AI use is evidence of state of mind. Gonzales had a lawyer and still went to ChatGPT to research recovering deleted emails. Anything your client asks an AI tool about the case is a written, timestamped record the other side and the judge may end up reading. If you don’t want to see it on the cover of the New York Times, don’t write it down.
I think Kelly’s advice is spot on. It’s easy to assume a chat with an AI model isn’t a person, so it’s private. It’s not. Someone likely has a copy of that chat somewhere, and understanding the rules around how long those prompts are stored and who can access them is important. We should ensure your prompts aren’t used to train the public model, which could leak confidential data into the LLM; we also need to consider the lifecycle of the interactions.
When you change your response from “I don’t recall sending” something to “I definitely did not” only after checking with ChatGPT to make sure the email wasn’t recoverable, it’s suspicious. Courts won’t give you the benefit of the doubt; they’ll draw their own conclusions about your state of mind.
What do your AI chats say about you? Would you want someone else reading them and drawing their own conclusions? Maybe take a look at how long you keep them.
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