That fails to recognize the tradeoff between freedom and security. Society suffers if we, for instance, lock everyone up, despite the reduction that would have in crimes. The balance between the two cannot be ignored to justify outcomes, though it is American tradition to value liberty over security when the two come in conflict.
It is american tradition to yell slogans about freedom while not favoring it at all.
Until "Good of the goose, good of the gander" is honored in good faith, this is a strict, hypocritical loss.
Attorney-client privilege is a special carve out because the courts have recognized that clients need to be open and honest with their attorneys to get proper counsel and representation.
This ruling is the court declining to extend that special carve out to non-lawyer AI tooling, and keeping the status quo of contemporaneous documents made by someone discoverable, whether or not shared with a third party. The judge draws from the TOS as an admonishment, effectively saying (my words, not the judge) the TOS should have put you on notice that you have no expectation this data is confidential.
I only wish it were.
While your analogy may reflect the mental model held by most users, I'd argue it sidesteps the reality that the company providing the service can by definition listen in on every word you exchange. Even if they were trustworthy enough to abide by their promises (which life experience has taught me trends inversely proportional to the size of the organization*), data breaches have become routine across even the best resourced institutions.
Email carries a similar exposure (unless you run your own in-house server / both parties are encrypting). I once had a lawyer who couldn't handle decrypting a zip file, and I insisted on hand-delivery from the other party as an alternative. It boggles my mind to see legal firms increasingly rely on consumer-oriented cloud services while acting like they are retaining custody of the data entrusted to them. Might as well send your manilla folders to a third party warehouse where they're handled by staff you didn't vet who aren't strongly bound by attorney-client privilege.
Don't get me wrong, I like your analogy and found your viewpoint insightful. I do feel as we fork over more of our lives to a handful of digital cloud providers, society will inevitably craft stronger protections to bring the legal regime into alignment with most users' inherent expectations. I just feel there is a huge gap today between how people expect the systems they rely on are architected vs. how they really work.
I wonder how plausible it would be for a frontier provider to offer something like enclaved AI instances where the user held sole custody of the key (marketed somewhat like Kagi Privacy Pass). While I doubt it could be bulletproof from a technical perspective, it might act as a strong signal about their privacy commitment. Do you think such a configuration might have had an impact on this Justice's deliberations?
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*Life experience has taught me the bigger a corporation is the more likely this is a stretch - not because employees are willfully nefarious, but because the corporate culture doesn't prioritize it anywhere near as much as they do pace of growth and revenue, and because the consequences they face in practice from harming your privacy are bascially non-existent - like a year or two of credit monitoring could somehow mitigate the consequences of all your PII being forever leaked (my general advice to companies collecting PII is not to treat it as an asset, but rather as toxic hazardous material that you minimize, contain and shed at the earliest opportunity).
My theory is that lawyers tend to lean on the law to protect them more than others might. "I can ensure that it would be illegal for them to them to expose this data; therefore this method is safe" vs. "If they expose this data, is that a situation I want to deal with?".
Those are tools used to communicate with others, Claude is not a tool to communicate with others, its akin to basic internet searching.
"DELINQUENT Attorney has failed to file one or more biennial registrations, and is subject for referral for disciplinary action by the Appellate Division, as required by Part 118 of the Rules of the Chief Administrator."
https://iappscontent.courts.state.ny.us/aronline/Attorney-Re...
If the claude chat log / agent was shared with the attorney, then even the use of the claude chat would be encapsulated under attorney client privilege
Is it? Aren’t notes, et cetera, not privileged by default?
It was a frequent issue when email first was a thing