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AI-powered Assistants and Privacy

     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

 


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