CBA Record January-February 2026

AI 2035

AI AND THE FOURTH AND FIFTH AMENDMENTS

Can Your AI Assistant Compromise Your Rights of Privacy and to Remain Silent? By Chip Mulaney

I n a few years, many of us will wear an artificial intelligence assistant—a pendant, eyeglasses, or an earpiece—that listens to every conversation, sees what we look at, and helps us decide what to do next. It will remember our habits, our prefer ences, and our misdeeds. But consider this: If a judge signs a warrant, can the police ask the device what you’ve been thinking about? This question not only involves our constitutional right against unreasonable search and seizure, but also our right against self-incrimination. Prompting the Contents of Your Mind AI developers are working on the first generation of AI assistant devices. For example, Meta’s AI glasses allow users to see the world through an assistant that can identify objects, transcribe conversations, and answer questions in real time. “Friend AI” has launched a pendant that you can wear around your neck, which will text you like a friend listening in on your conversation. These devices use continuous sensing to integrate with your life. AI assistants will reveal information through “prompting”—essen tially, a question or command to retrieve or generate information. The Fifth Amendment right against compelled self-incrimina tion prohibits the government from compelling you to reveal the “contents of your mind.” Will that include the contents or output of your AI assistant? This is not an idle question.

The Fifth Amendment highlights this concern, but the Fourth Amendment is best poised to address it. To satisfy the “particularity” requirement of search warrants under the Fourth Amendment, courts should require that warrants for AI assistants include a list of any prompts that the officers plan to use. Judges will approve, in advance, the specific questions that officers may ask the device, so that a seizure of an AI assistant does not become an open-ended interrogation.

The Fifth Amendment right against compelled self-incrimination prohibits the government from compelling you to reveal the “contents of your mind.” Will that include the contents or output of your AI assistant? This is not an idle question.

30 January/February 2026