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Use of AI notetakers is quickly becoming routine. These tools can automatically join video calls, listen to conversations, generate transcripts, create summaries, and identify key points in a meeting. 

While these tools have an argument for efficiency, they also create legal, privacy, and confidentiality risks. 

This issue is a lot more complicated than simply asking participants of a meeting for their consent to be “recorded.”  This is because recording, transcription, and AI processing are separate activities – and each may have its own notice and consent requirements.

As a result, businesses using these tools need to understand both what is happening during the meeting and what happens to the information after the meeting has ended.

What are AI notetakers?

An AI notetaker is a tool that captures meeting content and uses artificial intelligence to create transcriptions, summaries, action items, and log other important meeting records. Most operate as a bot that joins a video conference meeting as an additional participant. 

Many AI notetakers process information from meetings through cloud-based services rather than keeping the conversation only on an employee’s local computer. Depending on the provider, the service may receive audio transcripts and other meeting information and then use an AI system to analyze and summarize the dialogue. This means meeting content may be transferred outside of the company’s own system and processed or stored by a third-party provider, which may have privacy and data-sharing implications. 

Why do recording and consent laws matter?

Recording laws differ across the United States. Some states generally follow a one-party consent approach, meaning the consent of one participant is sufficient to record a conversation.  However, other states follow an all-party consent approach, sometimes referred to as “two-party consent” which generally requires the consent of everyone involved in a conversation for recording. The specific details and exceptions vary by jurisdiction. 

What actually counts as consent?

Sometimes consent can be more complicated than just simply displaying a recording symbol. Video-conference platforms may use different methods to alert participants when recording a meeting begins: a pop-up requiring participants to acknowledge the recording, an audible announcement, a banner or an icon that’s displayed during the meeting, some hosts may also require verbal consent.

But notice and consent are not always the same thing and what constitutes legally sufficient consent can depend on the applicable law and the circumstances at hand.

What happens to meeting information after the call?

Once an AI notetaker has captured a meeting, businesses should understand what rights the provider has over that information. Vendor terms can address data ownership, licensing, data retention, and whether information may be used to develop or improve the provider’s service. 

This becomes especially important as ordinary workplace conversations frequently include information that employees may not intentionally send to a third party: customer information, personnel issues, financial projections, internal strategy, product development and many other confidential materials may all be discussed while the AI notetaker captures the conversation. 

The transcription or summary can also create additional security concerns once the meeting ends. For example, automatically generated notes may be distributed via email, downloaded, forwarded and stored in employee accounts long after an original conversation has occurred. Meeting summaries create additional opportunities for sensitive information to spread or remain stored indefinitely. 

Businesses should therefore review not only what the tool captures but also who receives the resulting transcript, where it is stored, how long it is retained and who has the ability to delete it.

What about attorney-client privilege?

Adding an AI notetaker to a legal discussion can create questions about whether confidentiality has been maintained, and depending on the circumstances, whether privilege could be challenged or waived. You can read more updates from Federal District Courts on the issue here. 

This does not mean that all use of technology during a legal meeting automatically destroys attorney-client privilege. Whether privilege is affected may depend on the circumstances such as how the AI provider handles information and why the tool is being used. Therefore, businesses should be more cautious about allowing AI notetakers into meetings that involve legal advice or other professionally protected information. 

The same concern applies to trade secrets and other confidential business information. Meetings involving sensitive product plans or internal strategies and other proprietary information may not be appropriate for AI transcription unless the tool and its data practices have been reviewed carefully. 

What should businesses take away?

AI notetakers can be useful workplace tools, but businesses should have clear policies in place before employees begin using them regularly. Below are some high-level tips that businesses may want to consider when onboarding a new AI notetaker: 

• Approve specific tools: Employees should know which AI notetakers are permitted and how those tools record, transcribe, store and process meeting information.
• Create clear notice and consent procedures: Businesses may consider the laws that may apply to meeting participants and make sure notices accurately reflect how AI is being used.
• Limit use in sensitive meetings: Legal, HR, disciplinary investigation and other confidential discussions may require additional approval or no AI notetaker at all.
• Review vendor data practices: Companies should understand how meeting information is used, stored, retained and deleted, including whether it may be used to train or improve AI systems.
• Set rules for transcripts and summaries: Businesses may want to determine who can access or share AI-generated notes, how long they are kept and whether they are treated as official company records.