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In United States v. Heppner, the defendant was charged with securities fraud, wire fraud, conspiracy, making false statements to auditors, and falsifying corporate records.

When the FBI executed a search warrant, agents seized documents and electronic devices from his home. Among the seized materials were approximately 31 documents recording conversations he had with an AI chatbot. According to his attorneys, those exchanges happened after he had received a grand jury subpoena and knew he was a target of the investigation. On his own, and not at his attorney’s direction, he used the chatbot to help draft materials outlining potential defense strategies and legal arguments. He later shared these materials with his attorneys and claimed they were subject to the attorney-client privilege.

The court rejected his claims of privilege. As the judge explained, under the law applicable to the case, attorney-client privilege generally protects communications between a client and an attorney that are intended to remain confidential and made for the purpose of obtaining or providing legal advice. The court found these AI-chat materials failed at least two, and likely all three, of these requirements.

First, the court said an AI chatbot is not an attorney, which by itself was a major problem for any privilege claim. Second, the chatbot’s privacy policy stated that it collected user inputs and chatbot outputs, could use that data to train its models, and could disclose information to third parties, including government regulatory authorities. As a result, the court concluded that he could not reasonably expect the chats to remain confidential. Third, because he used the chatbot on his own rather than at his attorney’s direction, giving the materials to his attorneys later did not, by itself, render them privileged.