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Comment by jeffbee | Hacker News Reader

Heppner's argument was dumb but it opens a field of interesting questions. If I use a document processor (like Google Docs) to compose a message to my attorney, which message itself would be privileged, but I use some sidebar feature of Google Docs/Gemini to clean up a sentence that I thought was clunky, and elsewhere I have, for whatever reason, enabled features that permit Google to use inputs and outputs to train or refine their models, has that destroyed the privilege?

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The brief linked above[0] was easy to read. IANAL but in it the author seems to say that online tools fail to meet the confidentiality "test" and explains the ruling in clear language.

[0] https://news.ycombinator.com/item?id=47779377

I don't know why you think I did not read it. My remark is an application of the 3-point test in the decision to another system.

Well, hrrm. I thought that because it seemed to start clearly in the document I linked that something like Google docs wasn't safe, regardless of spell checking feature use. However, following my link again, it seems that the referenced post has been edited or something because going to grab a quote, I found myself in a different document than I remember.

I think in hindsight I was remarking, effectively, these two claims (yours and the courts) don't seem to live in the same world. Not your responsibility to resolve my confusion and different parts of the court system can issue edicts that contradict to be later resolved at higher levels of the system so... Sorry I didn't respond within the full context you wrote.

What about email?

Yes, you lose the privilege if your attorney-client communications are not intended to be confidential. If you agree to share those communications with a third party, you don't intend them to be confidential.

I don't think that hot take will survive much contact with the near future, at least not without a good deal of controversy.

What constitutes "Sharing with a third party" though? Using a 3rd party email service like outlook or gmail? Using a third party docs service like google docs?

It doesn't seem right that google docs would be privileged, but if you use the fancy spellcheck button, it no longer is.

Right, exactly. It is also too much to expect that if a user enabled the "personalization" button in the Gemini app, for unrelated reasons, they now can't expect to compose a privileged email to their counsel. It's a minefield.

Well, at Google people get legal advice from in house lawyers via Gmail. Are they not sharing that with at least some of the Gmail team (who could read the email)?

Gmail users (correctly and reasonably) do not expect the "gmail team" to read their emails, except using glass-breaking incident response privileges that leave audit trails and trigger review. Users expect that email is private. Anyway, both Google's privacy policy and American jurisprudence segregate things like emails, voice calls, and video calls into a separate "communications" category, while Google's privacy policy treats Google Docs as "other content you create", even though the difference seems immaterial if you know how these systems work.

Google originally declared that they read all emails. That was semi-changed with the Workspace rollout but there is nothing preventing them from reverting to the old policy. They already do it anyway for reminders extracted from email.

No normal person believes that systems delivering and classifying messages amounts to "gmail team reads my emails".

To me, "read" means by a human. Humans read, computers process.

The onus is on the companies to make this clear, if they aren't willing to tell users the dangers of using their own tools that kinda tells you everything you need to know (they don't care about their customers, only $$$).

Be upset at Google for not taking privacy seriously, they never have and never will.

Right so calling my attorney is the same since I'm sharing the call with the phone company.

Nope. The wiretapping laws precedent is known as ‘minimization’; when a legal tap is obtained of your phone lines, the expectation is that every effort will be taken not to tap attorney-client calls, lest your entire evidence packet get thrown out for failure to do so. That precedent is not automatically transitive to AI just because one thinks it ought to be; telephone lines between human beings are protected both by extensive case law and also actual law; neither yet applies between one human and a third-party corporation offering an AI, especially when at least one major AI is contractually declared in shrinkwrap to be ‘for entertainment use only’.

maybe not the call itself but the voicemail for example. can it be "extracted"?

another point to make it safer would be sharing the "chat" with the lawyer, this way it becomes media of communication

But that communication is clearly intended to be confidential. Also isn't having one attorney on a multi-party communication marked confidential sufficient to create privilege?

When I worked at two different FAANG companies, both legal orientation sessions taught this specific scenario as an example of something that's not attorney-client privileged.

If you email your lawyer to ask legal questions, that's privileged communication.

If you just cc a lawyer on a thread while you talk to other people, adding the lawyer doesn't make the conversation privileged or protected.

That is an erosion of the social contract from the early days of SaaS.

The law in the US is based on the expectation of privacy. If companies and the US government repeatedly egregiously share private data in violation of terms of service and the law, then what expectation is there?

25 years ago, I'd say "Checking the 'do not train on my data' button in an Anthropic account would pretty clearly create an expectation of privacy." These days? OpenAI had to send all such data to the New York Times, the government has been illegally wiretapping the whole planet for decades, the US CLOUD Act exists, and companies retroactively change terms of service all the time.

Heck, Meta has been secretly capturing lewd bedroom videos and paying people to watch them, and it barely made the news, just like the allegations the WhatsApp content moderation team made where they claimed they have access to WhatsApp E2EE content (what other content could they be moderating?!?)

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