Lawyers warned of AI recording risks

Lawyers using AI note-takers carry recording risks that others don’t, according to Ernie Svenson in “The 80/20 Principle”. When a note-taker bot joins a Zoom call and starts transcribing, it raises concerns about wiretap laws.

A lot of lawyers are concerned about breaking the law by using these tools. The risk is real, but it’s not what most lawyers think. In most of the country, one person on a call can record it, known as one-party consent, under the Wiretap Act.

However, some states require everyone’s consent, including California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

If calls cross state lines, it’s best to follow the strictest law. California has held that its rule applies to any call to or from the state, even when the other person is in a one-party state.

This means that lawyers need to be aware of the laws in different states when using AI note-takers. Secret recording isn’t a rule that’s never enforced.

People have been convicted of felonies and sentenced to jail for secretly recording conversations. In Pennsylvania, a man was convicted for secretly recording a custody conference with his ex-wife.

In Massachusetts, a woman was charged with eight counts for secretly recording her husband, who she accused of abuse. These cases show that the consequences of secret recording can be severe.

The bigger risk is civil, and it doesn’t need a prosecutor. In California, a person can sue over an illegal recording and collect damages.

This means that the person most likely to come after a lawyer is someone who already wants to hurt them, such as an ex-spouse or an opposing party. The law was written for tape recorders and phone taps, but now the question is whether it applies to AI note-taker bots.

This is being tested in consolidated class actions against Otter.ai and Fireflies.ai. No court has settled these cases yet, but the outcome matters because wiretap law assigns blame to the person who sets up the recording, not just the company that built the tool.

By using AI note-takers thoughtfully, lawyers can minimize the risks and maximize the benefits. One thing to consider is that the use of AI note-takers can create a searchable file that’s discoverable if a lawyer ever ends up in litigation.

Lawyers need to be careful about what they record and how they store it, as it can be used against them in court. In the end, the fear of a prosecutor coming after a lawyer for using AI note-takers is mostly misplaced.

The realistic danger is a civil claim from someone who’s already angry with the lawyer, in a state that requires everyone’s consent.