Your Calls Are Being Recorded: Did You Not Know?
-- by Jessie Gabriel
AI notetakers are everywhere. For a long time, it was impossible to join a call without at least 2-3 Otter.ai participants. Now, we often don’t even see the AI notetakers humming in the background, but they’re there. What are they doing? They’re creating and storing audio recordings or word-for-word transcriptions of your calls . . . on someone else’s computer . . . maybe on a third-party server . . . to live forever. If that is not enough to make you uncomfortable, using an AI notetaker in certain situations is illegal.
We can all see the appeal of having someone or something transcribe a conversation, put it into a tidy summary for you, create action items, and draft email follow-ups. Of course, that sounds great. It provides value and saves us time. Who can argue with that? But there are serious, serious downsides that people are not talking about. Those downsides caused us to implement an internal policy earlier this year that prohibits the use of AI notetakers on our calls.
Let’s put this in analog terms.
Sometimes putting things in non-digital terms can bring greater clarity to a situation. Let’s say you have a meeting with your lawyer. You hire a human being, let’s call her Cindy, to sit in and transcribe the meeting, possibly making an audio recording at the same time. At the end of the meeting, she hands you the transcript and the recording. You have a contract with Cindy, but you didn’t really read it (those things are so long!). As it turns out, that agreement gives Cindy permission to use those documents and tapes for her own purposes—maybe training her team to get better at recording and transcribing, maybe pulling a bunch of data on tech companies that she can sell, maybe something else. At a minimum, Cindy is allowed to keep copies. How does that make you feel?
The hidden recording device.
Now let’s take this one step further. What if Cindy is not in the room, but instead she’s sitting in the room next door listening in on the meeting. You don’t see her—you don’t even know she’s there. Someone else in your meeting invited her to listen in, record, and transcribe without letting you know.
This is essentially Granola. Granola touts itself as a tool that “transcribes your computer’s audio directly, with no meeting bots joining your calls.” It will transcribe all of your meetings without anyone on the other end being the wiser. If it’s your Granola, you think this is great. If it’s someone else’s Granola, maybe not. While Granola does not permanently record the audio component of your meeting, what they are doing is creating a word-for-word transcript of that conversation, which isn’t that much different.
The meeting with your lawyer.
How does this work in real-life scenarios? Let’s start with your attorneys. There you are having a conversation with your lawyer. As the two of you are discussing a sensitive conflict of interest issue about a potential deal, your (or their) AI notetaker is there recording every word. The call ends. That recording or transcript then probably gets stored by your AI notetaker on its own servers. That means that even though it is “your” notetaker, it’s really a third party.
As a refresher for the non-lawyers out there, attorney-client privilege is what allows you to have conversations with your lawyer with full confidence that those conversations will never make their way into somebody else’s hands. Even if you get sued, those conversations—whether in person, on the phone, over email—are sacrosanct. But you lose that protection when you share that information with third parties.
Now you find yourself in the middle of a lawsuit about that potential deal. You were sitting on the board of this company, and the plaintiff is a shareholder (probably another investor) who wants to prove that you were conflicted. You get an interrogatory asking whether you use AI notetakers. Yes. You then get a document request demanding that you provide access to those conversations—the transcripts, the recordings, the summaries. Everything you have. Bye, bye, privilege. Hello, liability.
Seriously, it might be illegal.
Let’s instead imagine the most common scenario: you join a group Zoom. Let’s say this is a gathering of a small group of people in your industry who you really trust, your mastermind group. These are high-trust relationships, so you speak freely on these calls because you have an understanding that things will be kept private. You discuss thorny issues, things you would never want shared. You are in San Francisco, but the other participants are spread across the country, including New York.
You have your AI notetaker join the call. Now you’ve broken the law. It is illegal in California to record calls without the consent of everyone on the call. Did everyone explicitly consent to you recording them? Probably not. Is it enough that they see your notetaker in the participant list? Maybe. The analysis is the same if you’re in a one-party consent state like New York and there is someone from an all-party consent state on the phone. You are still violating California (or Florida, or Massachusetts . . .) laws.
What if you’re using Granola, which doesn’t store a recording? Is that illegal? Again, maybe. Most laws around recording are hugely outdated and only address audio recordings. But is it that different to have a word-for-word transcript? Not really. And Granola still does record audio in certain scenarios.
Even if it’s not illegal, it is sooooo creepy.
There may be audio recordings or transcripts out there of every digital call you have had over the last five years. Think of all the times you saw a bot join your call. And think about all the times you didn’t see a bot, but there may have been someone on the phone who had asked Granola to listen in and transcribe your conversation.
Sure, we think about this differently as lawyers. So much for the advice that you shouldn’t put anything sensitive in an email because you might have to produce it in a lawsuit. This goes so far beyond that. Now you have recordings of every call you’ve ever had with your lawyer, internal team meetings, with your executive coach, maybe with your therapist. And let’s say those recordings were made by someone else, and let’s say that person isn’t the best at data security. Now those recordings are in the hands of a third party who you don’t even know, and who is a criminal.
But I also think about this as a regular human being roaming around on this planet, trying to maintain some sense of privacy. It makes my skin crawl thinking that my private conversations are living in permanence on someone else’s device or server. Those are my conversations.
Perhaps this is just the nature of the world we are living in. But I am not okay with that. For our clients, and for myself, I will continue to be vigilant. And if you bring your AI notetaker to one of our meetings, don’t be surprised when it gets the boot.
