Disable the Risks of AI Note-taking

AI note-taking tools, such as those used by Zoom, Microsoft Teams, or Google Meet, offer convenience. Those tools streamline administrative tasks by generating meeting summaries, highlighting key discussions, identifying speakers, creating charts, providing task lists, and more. But using AI note-taking tools for some school meetings risks violating the Family Educational Rights and Privacy Act (FERPA), waiving or breaching attorney-client privilege, and generating inaccurate information.

FERPA

Using AI note-taking tools for school meetings involving students may violate FERPA, which prohibits school officials from disclosing a student’s education records or personally identifiable information from those records without written consent from a parent or eligible student (an adult student or emancipated minor). The definition of “personally identifiable information” includes most information in an education record that is linked or linkable to a specific student. Education records are those that contain information directly related to a student and are maintained by an educational agency or institution or by a party acting for the agency or institution.

School officials often discuss sensitive student matters during meetings, and AI note-taking may compromise student privacy. For example, if school officials use an AI note-taking tool during an Individualized Education Program Team meeting, that student’s information will likely be stored on the tool’s server and could be disclosed to third parties in violation of FERPA and the Individuals with Disabilities Education Act.

Before enabling AI note-taking, school officials must consider whether the school has an agreement with the tool’s vendor. Such agreement should designate the vendor a “school official” under FERPA by clearly stating that the vendor is performing an institutional function, is under the direct control of the school with respect to use and maintenance of education records, may use information from education records only for the purpose for which the disclosure was made, and meets the criteria set out in the school’s annual notification of FERPA rights as having a legitimate educational interest in the education records. Absent an agreement with the vendor that protects student data, the tool should not be used.

Attorney-Client Privilege

School officials frequently consult with legal counsel on sensitive matters, and maintaining attorney-client privilege is essential. Using AI note-taking tools in meetings with the school’s attorney could inadvertently breach this privilege.

Attorney-client privilege attaches to confidential communications between a client and their attorney made for the purpose of obtaining legal advice. If the client is an organization, such as a school, the privilege extends to confidential communications between the attorney and all agents or employees of the organization authorized to speak on its behalf as to the subject matter of the communication.

Attorney-client privilege can be waived, which is a voluntary relinquishment of the privilege, only by the client. For schools, the client is the board of education, meaning that only the board as a whole has the authority to waive attorney-client privilege. However, the attorney or an employee of the board may breach the attorney-client privilege, which also results in loss of the privilege’s protection for the client. Such privilege may be breached if the confidential communication is disclosed to a third party by an employee of the client.

If you are in a meeting with the school’s attorney, and an AI program is generating notes that will be stored on the third-party server or shared with unauthorized individuals, then attorney-client privilege may be breached. AI note-taking tools are commonly hosted by third-party servers. Third-party access to transcripts of attorney-client privileged communications could be considered a waiver or a breach because the communication is no longer strictly between the client and attorney. Without contractual safeguards, third-party servers could also disseminate the transcripts or use them for AI training purposes. To avoid potentially losing the protection of the attorney-client privilege, AI note-taking tools should not be used to document meetings with the school’s attorney for legal advice.

Accuracy

Although AI technology is improving, accuracy remains a significant concern. AI note-taking tools may misinterpret jargon, fail to understand or identify accents, cross talk, or sarcasm, and transcribe background noise. While seemingly minor, AI inaccuracies could lead to significant legal risk because AI-generated meeting notes retained by school staff may be considered public records and subject to disclosure under the Freedom of Information Act. They also may be subpoenaed and used as evidence in legal proceedings.

While AI note-taking tools offer convenience by streamlining administrative tasks, they also potentially pose significant legal risk to schools. To avoid violating FERPA, breaching or waiving attorney-client privilege, or having to address inaccuracies, school officials should exercise caution and consider prohibiting AI note-taking during school meetings.