An increasing number of individuals and businesses are using AI for many purposes, from planning meals to conducting research. At least 75% of small businesses use AI in their work in some capacity. Several uses of AI technologies may benefit small businesses and community organizations. For example, programs can take notes and summarize virtual meetings, facilitate email marketing automation, or even draft custom business plans. However, as these technologies are so new, it’s unclear what legal and privacy issues might arise. Thus, it is important for businesses and organizations to understand some of the legal concerns associated with using these technologies in order to best protect their business interests.
Benefits
Before
discussing the legal implications, we need to understand the benefits of these
technologies and why small businesses may wish to use them. There are three main
categories of AI technology:
1)
Process Automation – AI technologies can help
small businesses with administrative tasks like data entry, saving businesses
time and money.
2)
Cognitive Insight – AI can analyze data and can
predict customer behavior. This can help businesses better serve their
customers and adjust to customer needs.
3)
Cognitive engagement – This encompasses AI
Chatbots and other technology where customers can “talk” to AI, rather than to
a customer service representative. Again, this can help businesses save money.
One of the main reasons businesses
implement AI technology is to save money. Most of these tools are free or
low-cost, allowing small businesses to do more work, for less. On average, AI tools can
do the work of one independent contractor at a much lower cost than hiring an
additional employee. A quarter of small
businesses expected to save $5,000 in 2023 by using AI technologies in their
business.
Nonprofit
organizations also rely heavily on AI. The vast majority of non-profits
use, or would use, AI to help them complete daily tasks (such as email
automation). Non-profits use AI in slightly different ways than small
businesses. For example, nonprofit
organizations are more likely to use AI to drive engagement
and amplify the message behind their organization.
AI is, and will
continue to be, used by all kinds of businesses and organizations. While there
are numerous benefits (too many to be fully covered in this blog post), there
are also some concerns about it. In the next section we’ll discuss what these
issues are and how they may affect small businesses and non-profits.
Concerns
A major concern
of using these technologies is data privacy and keeping private information
safe. It’s unclear how tech companies store confidential information, which
raises the question of how users can keep their information safe. Some of these
AI companies will use consumer data to train its AI model. One of the ways they
do this is by using a consumer’s real-life conversations to understand how people
are using the program. Tech companies will then put what they’ve found into a
newer model in the hopes of making the product better. Many companies don’t
allow you to opt out of giving them this data. Even though this may ultimately
create a better product, it raises serious concerns about how
personal data is being used to benefit tech companies.
While the
increase in data usage may have broader impacts on privacy, there are some
specific concerns about confidentiality and privacy when using assistive
technologies in communications with a lawyer. Take, for example, a software
application like OtterPilot, which can
join virtual meetings, take notes, summarize conversations, and even answer
questions about the conversation. OtterPilot can enable a small business owner
to focus on the conversation they’re having without feeling like they need to
write down everything being said on the call. Now, think about this virtual
meeting but with a lawyer, rather than a business associate. In a call with a
lawyer, a small business owner may be sharing private or sensitive information
that the software is recording and storing. The business owner very well may
not want their information to be stored by the tech company and perhaps used to
train the AI model in the future.
As
a general rule, lawyers are bound by attorney-client privilege. Attorney-client
privilege generally protects information shared by clients with their attorneys
from being used in legal proceedings, such as a trial. However, AI technology
companies are not bound by this same rule. In fact, OtterPilot, for example, states on their website that if a
user’s information is legally requested (i.e., by subpoena) they will comply
and share the requested information. This means that information that an
attorney would be able (in many circumstances) to keep confidential may be
shared by a technology company in specific circumstances.
This
raises the question of whether lawyers and clients should use these kinds of AI
in their meetings. The answer is unclear. Lawyers have a duty to ensure that
they are competent with any technology they use when dealing with clients.
Specifically, the Michigan Bar Association has explained that lawyers
have a duty to make sure that any third-party services they use when
communicating with clients (like an AI meeting recorder) do not violate any
rules about sharing a client’s private information.
In
the past few years, users have
brought lawsuits against AI companies for using data without
consent. In response to lawsuits and criticism, AI companies have changed their
information sharing systems. However, there have not yet been any cases brought
in Michigan about the interplay of attorney-client privilege and use of AI
technologies like meeting-facilitation software. This means that we don’t know
how a court would react to a case in which a lawyer or a client used this
software. It’s not clear whether in the course of a lawsuit someone could ask
to have that information admitted. It is possible that using this technology in
certain circumstances could constitute a waiver of attorney-client privilege.
This means that communications a client thought were private could potentially be
shared in a trial or other legal proceeding, even if the client didn’t
explicitly waive that privilege with their lawyer.
Both
clients and lawyers should be careful when using these technologies in a legal
context. It’s unclear whether documents that are crafted using assistive
technology or conversations that are recorded by an AI note taking software
would be afforded the protections that they would be given if they were created
by a lawyer without those technologies.
Image source: https://pxhere.com/en/photo/1640129
By Liza Patterson