The fear of artificial intelligence taking over has been with us since The Terminator, but until the robot apocalypse arrives, let’s enjoy the benefits of AI in our daily lives. Samsung employees recently fell victim to the dark side of AI when they used ChatGPT, an AI language model, for work and unwittingly leaked sensitive information such as source code and meeting minutes. This prompted a variety of safety measures, such as restricting access or creating AI data disclosure policies.
But this brings up an interesting legal question: When sensitive data is shared with an AI language model like ChatGPT, is it a trade secret or invention disclosure? Since ChatGPT doesn’t currently use user data for training, it’s unlikely to count as public disclosure of an invention. However, ChatGPT’s own policy notes that data could one day be used for model improvement, making your invention a public display. Additionally, it is important to remain aware that ChatGPT does not offer a confidentiality guarantee, as noted in its terms of service.
Although there have been cases arguing that online disclosure of trade secrets can destroy their confidentiality, the Hurry Family Revocable Tr. v. Frankel case (8:18-cv-2869-CEH-CPT MD Fla. Jan. 3, 2023) suggests it is not impossible for unsuspecting data to remain a trade secret. However, protecting intellectual property is a tricky area, and it helps if your trade secrecy meets the “needle in a haystack” criteria, namely, whether it was difficult to locate and wasn’t labeled by you.
Like Sarah Connor in The Terminator, it’s better to be proactive than reactive. Companies should take steps to protect their intellectual property, such as implementing data classification schemes for shareable information and data security measures. It is also essential to cultivate a confidentiality culture throughout the business, so employees are aware of the data they can and cannot share. Having clear policies and procedures to follow can help keep confidential information safe, both from AI and other potential threats.
