AI searches are not inherently protected by attorney-client privilege because the privilege requires a communication between a human client and a human attorney (or their authorized agent), querying a commercial AI tool does not qualify.
The Public or a Self-Represented Litigant
If you are a consumer or a self-represented litigant using a public, commercial AI tool (like a standard subscription to ChatGPT, Claude, or Copilot) to research a legal issue or draft a document, your searches are completely unprotected.
No Attorney-Client Relationship: Under New York law, attorney-client privilege strictly protects confidential communications made for the purpose of obtaining legal advice from a licensed human professional. An AI platform cannot act as an attorney, so the privilege cannot attach.
Third-Party Disclosure Waiver: Public AI platforms generally store your prompts to train their models or review queries for safety violations. By entering details about your legal situation into a public platform, you are essentially disclosing those facts to a third party. This can completely waive your rights to confidentiality, meaning the opposing party in a lawsuit could legally subpoena your search history and use it against you in court.
Law Enforcement Search Warrant
Law enforcement can issue a search warrant for your AI searches, prompts, and chatbot histories, and prosecutors can use that data as evidence against you in court.
While AI chatbots feel like a private sounding board or a personal journal, legally they are just data stored on a third-party tech company’s servers. In criminal investigations, this data has quickly become a gold mine for law enforcement.
How It Works Legally
Under the Fourth Amendment of the U.S. Constitution and the federal Stored Communications Act (SCA), digital communications—including your internet search histories and your conversations with an AI—are protected from warrantless government snooping. However, if law enforcement can demonstrate probable cause to a judge that a crime was committed and that your AI history contains evidence of that crime, the judge will sign a search warrant. Once served with a valid warrant, AI companies (like OpenAI, Anthropic, or Google) are legally obligated to hand over your data, including the following:
- Every prompt you typed.
- The AI’s responses.
- Time stamps, IP addresses, and account details.
- Even chats you thought you "deleted" (as companies often retain data for a set period or under judicial preservation orders).
How Prosecutors Use AI Searches Against You
In the courtroom, your AI search history is treated similarly to standard Google search history, text messages, or emails. Prosecutors use it primarily to establish intent, premeditation, and state of mind.
Recent real-world criminal cases highlight exactly how this data is being used such as establishing intent, proving premeditation / consciousness of guilt and tracking mindset.
The AI Criminal Prosecution Conclusion
Never type anything into a commercial AI tool that you wouldn't want a prosecutor reading to a jury. If the police get a warrant, those private chats can and will become the star witness for the prosecution.
Can Lawyers use AI during the Course of Representation?
If a lawyer intends to use a AI tool that carries any risk of third-party disclosure, they must obtain the client’s informed consent beforehand. To get informed consent, the lawyer must explain to the client exactly why the tool is being used, what specific data will be uploaded, and the explicit risk that the data could be exposed or used against them.
The best practice for lawyers is the use of secure, enterprise-grade AI platforms—such as those integrated into vetted legal tech software (e.g., Westlaw, LexisNexis) or private, closed-loop systems. If a law firm uses an enterprise system that contractually guarantees that inputs are walled off, never shared, and never used for model training, the risk of waiving privilege is substantially minimized.
AI as a tool, not a co-counsel. It cannot hold a privilege. Therefore, if a lawyer inputs client secrets into an unsecure AI platform, the law treats it the same as shouting those secrets in a crowded restaurant. Privilege is broken, and the data becomes fully discoverable by adversaries or law enforcement.
Confidentiality and Attorney-Client Privilege at Proto, Sachs & Brown, LLP
Please be assured that all communications between you and our firm, as well as any information or documents you provide to us regarding your legal matters, are strictly confidential and protected by the attorney-client privilege. This powerful legal protection ensures that our discussions cannot be disclosed to opposing parties, law enforcement, or third parties without your explicit, informed consent. To maintain this vital protection, we utilize secure, enterprise-grade data systems designed to safeguard your information, and we kindly advise that you refrain from discussing the details of your case with others or inputting any case-specific information into public artificial intelligence tools, as doing so could inadvertently waive this privilege.
If you need legal representation, contact the attorneys at Proto, Sachs & Brown, LLP for a free initial consultation. It is the policy of our office to hold all information from the initial consultation provided by a prospective client as confidential and will not be disclosed to any party.
Our offices are located in downtown White Plains and Cortlandt Manor. Contact us for a free initial consultation.