Opinion
Between a psychologist, a lawyer, and ChatGPT: Should conversations with AI be confidential?
Sam Altman, CEO of OpenAI, said recently that there is no legal privilege on conversations with ChatGPT. Now the question arises: has the time come to establish one?
Artificial intelligence has entered every aspect of our lives and has become an inseparable part of the therapeutic, personal, and even legal discourse of many. But can our communication with artificial intelligence such as ChatGPT enjoy the protection of legal confidentiality? A response to this question was recently given by none other than Sam Altman, CEO of OpenAI.
This past weekend, Sam Altman was interviewed on the podcast This Past Weekend w/ Theo Von and raised a significant concern regarding the use of ChatGPT. Altman emphasized that “there is no legal privilege on conversations with ChatGPT.” A statement that sparked lively discussion online around the issue of confidentiality in conversations with artificial intelligence.
Altman’s clarification highlights the fundamental difference between conversations with ChatGPT and communications protected under recognized privileges, which are also anchored in Israeli law, such as the confidentiality between psychologist and patient (psychologist testimony) enshrined in Section 50 of the Evidence Ordinance, the confidentiality between doctor and patient in Section 49 of the Ordinance, the confidentiality of a clergy member in Section 51, and the lawyer-client privilege in Section 48. These and similar privileges are explicitly set in law or case law (such as journalistic privilege), and derive from interests considered worthy of protection, whereas communication with ChatGPT does not currently enjoy such protection.
Accordingly, above all, users who turn to chat for legal purposes, medical consultations, or any other sensitive matter must take into account the fact that such dialogues, if saved and exposed, may be used as evidence against them in investigations, criminal proceedings, and civil cases.
The obvious question is whether there is justification for establishing a privilege that would apply to communication with the chat, and if so, whether such privilege would apply only to certain types of communication and not to others.
Seemingly, compelling arguments can be made in this regard. How is legal advice provided by the chat different from legal advice given by a lawyer? Why shouldn't psychological “treatment” in this medium be entitled to protection under privilege? Such arguments gain strength in light of the high performance demonstrated by these new tools across all relevant fields, performance supported by studies and data showing that the chat passes bar exams and medical licensing exams with higher success rates than humans, and that psychological treatment through conversation with the chat may have a positive effect on patients.
We have no doubt that proposals to establish such privileges in legislation, in regulations, or through case law for the purpose of protecting communication with the chat will soon arise. We do not reject the idea outright, but it must be remembered that the overarching legal principle is the need to discover the truth. Privilege is supposed to be an extreme exception, to be recognized only in cases where there is a clear and particularly important interest requiring it. It is not coincidental that legal privilege does not apply to a person’s search engine history, to materials written in private, or to independent legal research they conduct.
Thus, the real question that will need to be clarified is: in what way is the use of the chat different from any of the above examples and from many others? One approach to answering this question might be to recognize that many legal privileges derive from the identity of the person with whom the communication takes place: a lawyer, doctor, psychologist, clergy member, journalist, etc. In other words, a human, a third party, holding a position, usually with formal certification or professional recognition of some kind. Therefore, the real question connects to a broader issue – when, if at all, will artificial intelligence be granted legal status similar to that given to human beings? A kind of separate legal personality which, in our context, could even enjoy a status similar to that granted to the aforementioned professionals.
Adv. Jacob Enoch is Head of the M&A Department and leads the AI practice at Firon law firm.
Adv. Yuval Nakar is an attorney in the M&A Department at Firon law firm.
