CBA Record January-February 2026

THE LEGAL PROFESSION AND THE JUDICIARY IN THE AGE OF ARTIFICIAL INTELLIGENCE

Why AI Assistants Aren’t Just Smarter Phones

cannot simply scroll through the device or download the contents. Instead, the detec tive must prompt the assistant to recon struct events from all of its data (text and images, plus summaries and embeddings). This kind of prompting will be very appealing to law enforcement. Because an AI assistant might one day know you better than you know yourself, querying the assistant could be more effective than questioning the human user. The Fifth Amendment: Protecting the Mind from Compulsion The privilege against self-incrimination was intended to be a safeguard against the coercive interrogations of England’s inquisitorial courts, where the accused was forced under oath to respond to accu sations—often under threat of physical

forcing him to produce his business records in response to a grand jury sub poena was the equivalent to making him testify about the documents. By selecting a specific set of documents requested by the subpoena, the business owner was communicating that he knew where those documents were, had possession of them, and knew that they fell within the scope of the subpoena request. In his opinion in Doe, Justice Stevens captured this principle succinctly: “The Fifth Amendment protects the individual from compelled disclosure of the contents of his own mind.” This aspect of Fifth Amendment doc trine underlies modern debates over what constitutes “testimony” protected by the Fifth Amendment. For instance, the gov ernment can force a suspect to turn over a key to a safe, but not its combination. The government can use a suspect’s facial recognition or thumbprint to open a cell phone, but cannot force them to pro vide the phone’s passcode. The suspect’s memory of the combination or passcode is protected by the Fifth Amendment’s self-incrimination clause. While the Fifth Amendment provides useful background on mental privacy, the Fourth Amendment is better suited to protect the privacy of the mind. As technology develops, judges should tailor search warrant protocols for electronic devices to limit prompting by an AI assis tant. Specifically, law enforcement must list the prompts they intend to use on the AI assistant in the proposed warrant, so that an AI assistant search does not become an open-ended invasion of the user’s mental privacy. The concept of digital privacy has evolved under the Fourth Amendment’s prohibition of unreasonable searches and seizures. Over the last 60 years, the Supreme Court has held that police must obtain a search warrant in situa tions where the suspect has a “reason able expectation of privacy.” Examples The Fourth Amendment and Digital Privacy

Personal AI assistants will not simply be a hard drive that can be searched like a computer or smartphone. Instead, AI assistants will likely keep two layers of memory: a thin scrapbook of user-visible files (such as photos, selected transcripts, pinned notes), and a thick semantic layer of summaries and embeddings that make long-term recall practical. This second layer will be necessary given the amount of audio, visual, text, and location data that the assistant will take in. For this content, memories of events will not necessarily be decipherable by a human without the device’s assistance. This kind of device will need to be prompted to retrieve information from “meaning maps” that have integrated events learned

punishment for silence. Since the found ing era, the clause has evolved to encom pass all compelled communications that are potentially incriminating. In United States v. Doe (1984), for instance, a business owner argued that

through (for instance) audio, video, text, and location data. This “meaning map” is less like a file cabinet and more like a human mind. The AI assistant will retrieve information like our brains retrieve memories. A detective

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