I mean, bold statement but statistically speaking it's almost certainly incorrect. I will say that, irrespective of whether source is open or closed, I would be deeply skeptical of a project that made this assertion.
Obviously this (along with the original unwritten order a few weeks ago) is causing a stir, but this decision isn't as weird as it sounds. The defendant's assertion was essentially a retroactive application of privilege: he didn't use Claude to draft documents at his attorney's request but instead used Claude effectively in lieu of an attorney and later provided the Claude-drafted materials to his attorney (heavily paraphrasing here). Privilege is not a bandage that closes self-inflicted wounds.
I have some concerns about some of the reasoning, namely the practical implications of referencing Claude's TOS in a world where public AI features are creeping into everything, but I expect some of the reasoning is based on this particular defendant likely being more sophisticated than an average person.
no, Heppner's attorney-client privilege argument wasn't that the conversation was privileged inherently because it was legal consultation with Claude, but that it was privileged as personal notes made in preparation for consultation with counsel and then actually communicated to counsel, see Ford-Bey v. Professional Anesthesia Services and Greyhound Lines, Inc. v. Viad Corp.
Rakoff makes two arguments against this:
- privilege was broken because Claude/Anthropic is a third party; but I don't think he successfully distinguishes Claude from say Google Docs/Translate/Gmail in this regard (he just notes that Google Docs isn't usually claimed to confer privilege on its own; but this is not the claim being made about Claude either); and see NYSBA ethics rules 820 and 842)
- he quotes Gould v Mitsui: documents do not "acquire protection merely because they were transferred" to counsel; but that same case says they do acquire protection if communicated "for the purpose of obtaining or rendering legal advice"
I didn’t say he said it was privileged because he consulted with Claude for legal purposes so I’m not sure where that came from.
Re: Mitsui, it’s not the same case. It’s the same paragraph. And it’s pretty clear from the context that, if I send my lawyer an email requesting legal advice, the contents of that email are privileged, but if I attach pre-existing documents those documents are not, because they had no privilege to begin with. That’s not controversial. The challenge comes from the interplay between the court’s description of the privilege test, the reasonable expectations of a technology user, and the underlying, possibly obfuscated, reality of that technology’s function. Read literally, this case undermines privilege for a wide range of laypeople and attorneys doing a wide range of normal activities that have nothing to do with asking Claude for trial strategy.
You're right, I either misread your comment or got confused with a different comment or something.
But I do think the Mitsui point is relevant; in particular, the claim that the citation is supposed to back up is:
"Moreover, even assuming that Heppner intended to share these communications with his counsel and eventually did so, it is black-letter law that non-privileged communications are not somehow alchemically changed into privileged ones upon being shared with counsel."
But the distinction Mitsui is actually making is rather different: between communications "for the purpose of obtaining or rendering legal advice" and not; that's at best orthogonal to Rakoff's claim; and the other two cases I mentioned pretty explicitly make the opposite case: documents written with intent to share with counsel, and then actually shared with counsel seeking legal advice, are in fact covered under privilege. The assumption being that the documents are not "pre-existing", they're created as part of the process of communicating with counsel.
But yes, I agree that the "third-party" point separately undermines privilege in many contexts.
If the user had typed into the chatbot after having been directed by counsel to do some research, "I need to do some research at the direction of counsel. Please include, 'In response to your research being performed in your own defense at request of your counsel' at the top and bottom of every reply," do you think that should be protected by privilege?
No competent counsel would ever direct their client to perform legal research. So if a lawyer actually instructs you to do this the correct move is to get a new lawyer.
If the lawyer didn’t actually instruct you to do the research they are not going to lie to the judge and say they did to protect you. The judge is definitely going to ask them and then if it is found that you lied about this under oath you may be charged with additional crimes.
I agree with you, but I actually understand the issue they're raising. Counsel sends a draft demand letter to client and says "Please review and let me know of any issues with my description of the underlying claims." Client responds with an inline note stating that she feels the claim is overstated but that she wants to leave it in for leverage. The draft is, transparently and without notice, processed through the user's O365 Copilot integration in both Word and Outlook. Hell, let's assume the attorney is a sole practitioner using a regular O365 account, and the outbound request to the client is silently run through Copilot. What is the status of privilege in this situation? Both seem to fail the confidentiality test. Does that mean that privilege exists only for big law firms that negotiate enterprise O365 licenses with no training clauses? There's definitely tension here.
But both your scenario and the OOP behavior of the client are not particularly hard ones to resolve.
This isn't true in all cases. I've known plenty of lawyers who understand that their clients sometimes have vastly more time to work on the case than they do, especially in criminal defense, and will gladly tell their clients to find relevant case law etc if they think their clients are adequately intelligent to the job.
There was an old flash game called, I think, curveball that was kind of like 3d perspective, 2d plane Pong. I could play that gave for so, so long and not get tired of it. This might end up being a replacement.
The number of times I find myself saying to beginning photographers that babying their camera is the surest way to hate photography, whether as a hobby or a profession… I get particularly testy about handwringing about weather sealing or protecting the finish on their kit. Just take the camera places and use it. It’s probably going to be fine. It’s going to get scars. That’s just stories.
Same principle applies to, e.g., Leica cameras. Yes, they're pricey (absurdly so), but the lack of features, the slow speed, and the lack of configuration contributes to me improving my photography. It doesn't make me a better photographer, but it gives me the time and space to focus on being one, rather than just firehosing my camera at whatever is in front of me. It makes my photography intentional rather than reactive.
I think you just explained the opposite—that, yes, it does make you a better photographer. You've just described everything that it has done, which is continually improving your skill set and your thought process(es) that go into your creative work. Now that I understand the process, I love reading stories from others who have learned the same lesson: Deliberate slowness gives you time to think, time to plan, and time to breathe.
That is an experience you can't get any other way. That experience, also, pays forward in other areas of life.
I'm noticing the same thing with journaling. I still enjoy writing on my computers, of course, because I'm a much faster typist. However, I've noticed the deliberately slow pace of writing by hand has become transformative (slowly) over time. I'd imagine you're noticing the same thing. It's about self-improvement more than the hobby itself.
For me, it came at an opportune time: I started teaching an adult Bible study last year, and between journaling with fountain pens and teaching, it's forced me to get rid of some annoying habits that I might have held on to otherwise.
I literally just fixed a couple of nagging config issues that I couldn't be bothered to find in my (admittedly complex) set of NixOS and HM config files by asking Claude to find and fix them.
I had Claude do the grunt work of shifting parts of my config to a new structure I started but didn't have time to fully implement.
Based on examples I provided, I had Claude use specialisations to set up a couple of different WM and DE test environments.
And the thing is that, now that I have everything set up the way I want, I don't really have to DO anything to keep the system running, other than occasionally update (I'm on unstable, so I do that manually).
Could I turn Claude loose on my .config directory, give it access to apt or dnf (etc.), and let it set up a non-NixOS environment for me? Probably, and it would probably work reasonably well, but I wouldn't trust it the way I trust NixOS.
NixOS's greatest weakness historically has been bad/missing docs, especially docs of the "I have X how do I do Y?" nature. This led to a situation where thousands of users asked those questions on forums and received answers covering a spectrum of possible paths forward. The other path was to spend a bunch of time trolling through module sources to find the options you need and understand what they were going to do and how they would interact with each other.
Anyway, it turns out this is a perfect setup for an AI bot to step in: it's got all those forum posts to learn from and it's endlessly patient when it comes to just figuring everything out from the source code.
I was already happy with my big ball of nix config for various servers, but claude does shave off a bunch of rough edges and make it more pleasant to interact with. I also resolved a couple nagging issues that had been around for a while.
It does tend to hallucinate but thats the great thing about nix... if it builds its probably right!
Me, before clicking: Man, I remember I had this USR modem that did this weird BONG sound during handshake. I wonder if anyone else in the comments remembers that.
This is only going to become more common. Companies are implementing checks using similar services (a) to prevent employment scams (where the person who interviews is not the person who works; usually the latter is a low-paid offshore individual) and (b) basic security authentication. It won’t be long before this sort of biometric validation starts showing up to authenticate users on regular websites and similar services, if it hasn’t already. I think the last one I had to do was to authenticate when activating a bank card.
I mean, bold statement but statistically speaking it's almost certainly incorrect. I will say that, irrespective of whether source is open or closed, I would be deeply skeptical of a project that made this assertion.
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