Against an AI Privilege

Journal

Jolt Digest

Abstract

Introduction

Artificial intelligence (AI) systems are embedded in daily life, from writing assistance and customer service to medical triage and legal research. As people grow more accustomed to relying on conversational AI tools for advice, support, and reflection, the question arises whether communications with such systems deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal privileges. This Essay argues that—at least under current technological, social, and institutional conditions—any such privilege would be premature, unworkable, and inconsistent with the historically rooted approach to evidentiary privileges.

The foregoing privileges rest on fiduciary duties, confidentiality safeguards, and accountability structures wholly absent from AI interactions. Extending privilege to these communications would be both unnecessary and affirmatively harmful, undermining the truth-seeking function of the courts without delivering the human-centered benefits that justify traditional privileges. Recognizing an AI privilege would entrench corporate opacity precisely when courts need transparency.

Against that backdrop, this Essay asks the threshold question: whether courts should recognize a freestanding evidentiary AI privilege, as many people already treat conversational AI tools as quasi-therapeutic sounding boards, turning to them for guidance in areas where stigma, shame, or cost might deter disclosure to a qualified human professional. The Essay develops the case against privilege and tests the strongest case for it—namely, that extending protection to certain AI interactions could promote candor, safeguard personal autonomy, and encourage more responsible use of emerging technologies—before ultimately rejecting the idea as doctrinally unsound and normatively undesirable.

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