Your AI Prompts Are Not Confidential

People today have developed an unhealthy relationship with their technology, to the detriment of developing interpersonal relationships. We have all seen this. Enough people are using AI companions to replace human companionship that a New York restaurant is now catering to this growing market segment. As business owners know, you go where the market is.

The New York Post reported this about a NYC restaurant recently:

If you’ve gone from dating apps to dating an app, there’s now a bar for you.

The Hell’s Kitchen establishment has been re-designed for those who have AI partners, so they can bring along their phone or tablet and set up at a table for a romantic evening, as if they were both there in the flesh.

On Wednesday night, Same Same Wine Bar was filled with patrons sitting at tables for one-ish, with their tech devices propped up on stands to make video calls to their virtual partners and headphones to hear them.

How’s that for dystopian?

Suffice it to say, there is a growing population out there who seek advice from generative artificial intelligence (“GenAI”) products such as ChatGPT, Grok and Claude rather than asking a competent human being who knows what they are talking about.

Here is where the fun begins. For months and months I have been warning my clients that they should not seek legal advice from any GenAI.

“Tuk, you’re just being territorial - how predictable! You’re old and you have no idea what’s happening now!”

Nonsense.

My warning is based on experience and the fact that it is well established that a person’s Google searches are discoverable both in civil litigation and in criminal investigations1.

When someone is arrested on suspicion of committing a crime, that suspect’s search history around the time of the incident can provide powerful circumstantial evidence. Simply stated, one should assume that there is no attorney client privilege or work product doctrine that would prevent the discoverability of your Google searches.

However, what if one is seeking legal advice from a GenAI product? Would a court look at this issue differently?

One Court Has Spoken

In a ruling published on February 17, 2026, U.S. District Judge Rakoff wrote that there is no attorney client privilege nor is there a work product doctrine that protects a criminal defendant’s GenAI prompts. The case is United States v. Heppner (U.S. Dist. S.D.N.Y. Docket 25-cr-00503). The allegations in the case are omitted, as they are not relevant to this discussion.

In this matter, the FBI arrested the defendant and seized various documents pursuant to a search warrant. Among the documents seized were thirty one documents that memorialized communications that the Defendant had to the GenAI platform Claude, which is Anthropic’s GenAI. According to the Court, the GenAI communications occurred after the Defendant was served with a grand jury subpoena and was aware that he was the subject of a criminal investigation.

The court noted “[w]ithout any suggestion from counsel that he do so, [the Defendant] ‘prepared reports that outlined defense strategy, that outlined what he might argue with respect to the facts and the law that he anticipated the government might be charging’.” Opinion at 3.

Unsurprisingly, the Defendant moved to protect the contents of the thirty one documents from being used by the prosecution on the basis that those documents were protected by the attorney-client privilege or the attorney work product doctrine. The court ruled that “in the absence of an attorney-client relationship, the discussion of legal issues between two non-attorneys is not protected by attorney-client privilege.” Opinion at 5.

A word to the wise: do not use GenAI for anything you want to keep secret.

Federal Court Issues Mixed Decision in Copyright Suit Brought by Authors

No doubt by this point you have seen the headlines about the U.S. District Court’s June 23rd order (the “June 23rd Order”) in the matter of Bartz v. Anthropic PBC (US Dist. Ct. N.D. California Docket 3:24-cv-05417-WHA). In the abstract, the fact pattern is a familiar one by now for those who are following the copyright related litigation initiated by authors against the artificial intelligence developers: the developer copies legally protected works at scale without any license or payment to the rights holders, and uses those protected works to train software.

CLICK HERE to go to Tuk’s Copyright Law Report.

Copyright Law Update: All About Fair Use

(The following is an excerpt from my book risk, create, change: a survival guide for startups & creators, now available here at Amazon.com.)

    One of the key doctrines of copyright law is the concept of fair use.  Fair Use is, simply stated, a defense to a copyright infringement claim.  This doctrine allows for, in certain, limited circumstances, the unlicensed use of copyrighted works. 

    The Copyright Act provides provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. 

    Generally speaking, only a federal court after a copyright infringement case has been filed can really determine if one’s actions in using a copyrighted work constitutes Fair Use and is thus permissible.  From a startup or entrepreneur’s standpoint, if you are in the educational space or publishing space involving artistic criticism, Fair Use becomes a significant debate at the office.  For the purposes of this paragraph, “publishing” could include not only the written word but also video blogging and related content production. 

    There are four factors that courts will consider in determining if the unlicensed use of a copyrighted work constitutes Fair Use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

    Since Fair Use is such a generally applicable topic, it bears some additional explanation.  The first factor in the fair use analysis focuses on what the purpose and character of the use is, including whether the use is of a commercial nature or is for nonprofit educational purposes.  A key part of the analysis here is how the party claiming Fair Use is using the copyrighted work.  Courts are much more likely to find that nonprofit organizations using copyrighted material for educational and noncommercial uses qualify as Fair Use.   One should not automatically assume, however, that all nonprofit education and noncommercial uses are automatically fair and all commercial uses are not fair.  This first factor is only part of the four part analysis, and it is the court’s analysis of all of the factors as a whole that will determine the outcome.

    “Transformative” uses are more likely than not to be considered fair.   Transformative uses are those that add something new, furthering the purpose of the original work or imbuing the original work with a different character.

    The second factor focuses on the nature of the copyrighted work.  This can be a slippery concept.  The analysis here is the degree to which the copyrighted work that was used relates to the overarching purpose of copyright law in encouraging creative expression.  In other words, when someone uses a copyrighted work that is a novel, movie or song - all forms of creative expression - that person is less likely to be entitled to argue the Fair Use doctrine.  If the copyrighted work was a news story or a technical article, the it is more likely that Fair Use could be found in that circumstance.

    The third factor focuses on the amount and substantiality of the portion used in relation to the copyrighted work as a whole.  In short, how much of the copyrighted work was used?  Here courts would look at both the quantity and quality of the copyrighted material that was used.  Not surprisingly, the larger the portion of the copyrighted work used, the less likely it will be that Fair Use will be found.  Also, the converse is also true.  The smaller amount of the copyrighted work used, the more likely that a court would determine Fair Use was applicable in the situation.  In some contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an essential part—or the “heart”—of the work.

    The fourth and final part of the Fair Use analysis focuses on the effect of the use upon the potential market for or value of the copyrighted work.  Does the use harm the copyright holder’s asset?  The court would have to examine the existing or future market for the copyright owner’s original work. Does the use  harm the copyright owner by displacing sales of the original owner’s work that would have happened but for the infringing user’s activities? This is probably the last place on earth where you would want the monetary value of your property to be determined, especially if your work is avant garde or there is no clearly established market (yet) for your product.  

Have questions about your creative work and copyright law?  CONTACT US.