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How’s your old and trusty NDA? I’m guessing you haven’t revised it in years, arguably with good reason. Things in the NDA world haven’t necessarily changed that much.
But you might want to blow off the dust and get cracking on some drafting.
I assume your company has spent a fair bit of time over the last few years thinking about how to use AI, but you may not yet have gotten around to adjusting your NDAs for AI. It’s probably time.
But wait, don’t our standard NDA provisions already cover us?
Sure, your traditional confidentiality provisions can provide a good deal of protection. But AI creates some scenarios that older NDAs simply weren’t written with in mind.
The obvious one is putting confidential information into an AI system and what the provider of that system can then do with it. But that is only the beginning. What happens when AI is being used across multiple customers or engagements? What about material generated by an AI system based on confidential information? Or information that the AI can derive from the confidential information it was given?
And even on the more familiar question of putting confidential information into an AI system, the answer doesn’t necessarily have to be “don’t.” There is a big difference between putting confidential information into a publicly available AI tool that may use that information to improve its models and using an enterprise AI product under terms designed to protect the information and restrict how the provider can use it. Your NDA ought to reflect the distinction you actually want to make.
Now, what about all those NDAs you sign without really reading?
No judgment, but plenty of people in your company may already do that. Someone sends over a fairly standard NDA, nothing jumps out as particularly unusual, and it gets signed. But how often are you thinking about what that NDA means for your own use of AI?
Again, the standard provisions may give you some room. But if you are planning to use AI in work involving someone else’s confidential information, you should probably have standard language ready to drop into someone else’s NDA that gives you the room you need.
That doesn’t mean asking for a blank check to use confidential information with any AI tool for any purpose. It means thinking through how your company actually uses approved AI tools, what protections you have around those tools, and what rights you need under an NDA to continue using them. Then have language ready that preserves that flexibility. Otherwise, you may find yourself accepting restrictions that made perfect sense when your standard NDA was written, but considerably less sense for the way your business operates today.
So perhaps it’s time to pull that old and trusty NDA off the shelf. And while you’re at it, come up with some language for the other guy’s NDA too. Sorry to add to your to-do list!
