CBA Record January-February 2026

Specifically, searches of AI assistants should be governed by the “particular ity” requirement of the Fourth Amend ment. The text of the Fourth Amendment requires that warrants “particularly describ[e] the place to be searched” and “things to be seized.” For an AI assistant, the “place” to be searched is the AI assis tant and the cloud servers that it accesses. The “things to be seized” are answers to prompts. Judges should require officers to list the prompts that they plan to give the AI assistant in the application itself. Officers cannot go beyond these prompts without getting a new warrant. This procedure has important benefits. First, because a judge will pre-approve every prompt that will be given to the AI assistant, the search will not become a free-wheeling probe into the suspect’s thought history. This procedure has par allels in countries such as France and Germany, where judges oversee the inter T he courtroom adds unique com plexity to AI’s impact. Judges and judicial staff face efficiency pres sures but, unlike practitioners, they are entrusted with ensuring fairness, impar tiality, and public trust. This amplifies the risks of AI use behind the bench, especially regarding transparency and the perception of justice. The Illinois Supreme Court’s AI Policy addresses these concerns head-on, man dating that judges remain responsible for their legal opinions and affirming that courts will not tolerate AI technolo gies that “jeopardize due process, equal protection, or access to justice” or that perpetuate bias and prejudice. While it allows judicial personnel to use AI, it does not mandate disclosure of AI use in opin ions. The policy also includes a judicial bench card for further reference ( https://

rogation of suspects. Furthermore, a limited list of prompts will ensure that the AI assistant is returned to the suspect as early as possible. People will soon be dependent on their AI assis tants. It will be an extreme hardship to deprive a suspect of their device for an extended period. A search warrant pro tocol, in which law enforcement must quickly get a warrant for specific ques tions, will limit this hardship. As law enforcement gets better at prompting, search warrants can be turned around more efficiently, and judges will come to expect that. In situations in which a prompt results in an unexpected response that merits further inquiry, law enforce ment can apply for a second warrant. At that point, a judge will decide whether the situation is appropriate for an extension of the seizure and additional questions. The original harm targeted by the Fifth Amendment was coercive interrogation— www.illinoiscourts.gov/News/1485/Illi nois-Supreme-Court-Announces-Policy on-Artificial-Intelligence/news-detail/). Given this, Illinois courts should con sider additional precautions. Each court should establish tailored local policies governing personnel’s AI usage and ensur ing a process by which to update these policies as technology and need evolves. Sound policies should: l Approve and allow only thoroughly vetted, secure AI platforms for internal use. In evaluating AI platforms, courts must consider data security, transpar ency, and bias mitigation. l Restrict personnel from inputting con fidential or privileged information into unapproved external AI tools. l Require ongoing comprehensive train ing for judges, clerks, and staff that

the extraction of self-incriminating testi mony through state force. Some believed that compelled testimony was like a window into the accused’s soul. Searches of AI assistants will raise the same spec ter of invading our deepest thoughts. As minds and machines gradually converge, it will become increasingly difficult to decide what constitutes the “contents of the mind” under the Fifth Amendment. Because the Fourth Amendment has evolved to address our reasonable expec tations of privacy, it is the law of search— not self-incrimination—that can flexibly police invasions of our mental privacy.

A former federal prosecutor at the U.S. Attorney’s Office in Chicago, Chip Mulaney is now a principal at Goldberg Kohn, where he represents clients under criminal investigation and in civil litigation.

AI Guardrails for Courts

is tailored to specific division needs. AI usage is not a one-size-fits-all solu tion, and input from court personnel is vital in structuring appropriate training programs. — By Joel Bruckman

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