Monday, September 28, 2026

Legal Myth Monday: Can the Law Catch the AI Machine?

Artificial intelligence has been around considerably longer than the current panic over it. What has changed is that AI has moved from something largely confined to laboratories, universities, and specialized industries into something an ordinary person can carry around in a pocket.

And that creates a rather interesting legal problem.

Legislatures are discovering that AI can write, draw, imitate voices, make decisions, generate evidence, screen job applicants, analyze medical information, produce legal briefs, create convincing fake images, and sometimes confidently announce things that are completely untrue.

Kinda like how CNN does business. 

Naturally, governments have begun doing what governments traditionally do when technology outruns the law:  They are writing laws and creating legislation.  Whether those laws actually solve the problems they are intended to solve is another question entirely.

So, this week's Legal Myths Monday takes a look at fifteen common assumptions about AI and fifteen jurisdictions already attempting to answer them.

1. UTAH

Myth: “If I am talking to an AI, the law doesn't care whether I know it is a machine.”

Reality: Not necessarily.

Explanation

Utah was one of the earliest states to impose a specific disclosure requirement on certain uses of generative AI.

The Utah Artificial Intelligence Policy Act requires disclosure in certain regulated-occupation and consumer-protection contexts. A person using generative AI in connection with regulated services must disclose that the person is interacting with AI, including disclosure at the beginning of an oral exchange and before a written exchange.

The law does not mean every conversation with ChatGPT requires a flashing neon sign announcing, “THIS IS A ROBOT.” The obligation depends upon the statutory circumstances.

Related Authority:  

Utah Artificial Intelligence Policy Act, Utah Code Ann. tit. 13, ch. 72 (2024).

What this authority is about:  

Utah created an Office of Artificial Intelligence Policy and established a regulatory framework dealing with AI, including consumer protection, disclosure, regulatory mitigation, and an AI regulatory-learning laboratory.

How this authority is being applied:  Utah's approach is notable because it attempts to regulate AI without simply banning it. The state created a regulatory-mitigation system through which qualifying AI developers can test systems under specified conditions while obtaining temporary relief from certain regulatory requirements.

Potential problem:   

Disclosure rules sound simple until someone has to determine when disclosure is legally required, what counts as sufficient disclosure, and how much disclosure becomes so ubiquitous that consumers simply stop noticing it.

At some point, “You are interacting with AI” could become the digital equivalent of the 47-page terms-of-service agreement nobody reads.

Cheeky Reality Check:  

Utah didn't outlaw the robot. It simply told the robot to introduce itself. 

2. COLORADO

Myth: “If an AI system discriminates, the computer, not the company, is responsible.”

Reality: No. Colorado's law looks to the developer and deployer.

Explanation

Colorado's AI law addresses what happens when a high-risk AI system produces discriminatory outcomes.

The statute places duties on both developers and deployers and requires reasonable care concerning known or reasonably foreseeable risks of algorithmic discrimination.

Related Authority

Colo. Rev. Stat. §§ 6-1-1701 to -1707 (2024), as enacted by S.B. 24-205, Consumer Protections for Artificial Intelligence.

What this authority is about

Colorado's framework focuses particularly on high-risk AI systems used in consequential areas such as employment, financial services, housing, education, insurance, and other decisions affecting individuals.

Among other things, developers must provide information and documentation allowing deployers to conduct impact assessments, and developers must disclose certain known or reasonably foreseeable discriminatory risks.

How this authority is being applied

The principal operative provisions began taking effect in 2026. The law attempts to create a compliance structure rather than waiting for a discriminatory AI system to cause harm and then trying to determine who should have known what.

Potential problem

The difficult question is not necessarily whether discrimination is bad. Everyone agrees on that.

The difficult question is how much responsibility can realistically be assigned to a developer for an AI system after a third party deploys it in circumstances the developer did not anticipate?

The more expansive the liability standard becomes, the more developers may respond by restricting what their systems can do rather than making them more useful.

Cheeky Reality Check

The computer may make the decision but Colorado still knows where the developer lives. 

3. CALIFORNIA

Myth: “California tried to regulate AI, so AI companies now have to get government permission before releasing a model.”

Reality: Not under California's enacted frontier-AI law.

Explanation

California's earlier attempt at sweeping frontier-model regulation became nationally controversial. But the law that ultimately took effect was SB 53, the Transparency in Frontier Artificial Intelligence Act.

It focuses heavily on transparency, safety frameworks, reporting, and whistleblower protections rather than requiring the government to approve every AI model before release.

Related Authority

Cal. Bus. & Prof. Code §§ 22757.10–22757.14 (2025).

What this authority is about

SB 53 requires qualifying frontier AI developers to establish and publish AI safety frameworks. Large frontier developers must address catastrophic-risk thresholds, mitigation measures, incident response, and other safety considerations.

The statute also creates reporting mechanisms and protections for covered employees who disclose qualifying safety concerns.

How this authority is being applied

The statute became effective January 1, 2026. Large frontier developers are required to publish their frameworks, and frontier developers have transparency-report obligations concerning new or substantially modified frontier models.

Potential problem

Transparency is useful only to the extent that the information disclosed is meaningful.

A 200-page safety document can technically provide transparency while still leaving an ordinary member of the public with absolutely no idea what the AI actually does.

Cheeky Reality Check

California didn't put a leash on the robot.  It made the robot file paperwork explaining why it thinks it needs one. 

4. ILLINOIS

Myth: “An employer can use AI to hire, fire, or promote people without telling them.”

Reality: Illinois says AI-assisted employment decisions remain subject to civil-rights law—and notice may be required.

Explanation

Illinois amended its Human Rights Act to specifically address AI in employment.

The statute prohibits employers from using AI in employment-related decisions when the use has the effect of subjecting employees to discrimination based upon protected classifications. It also requires notice to employees when AI is used for specified employment purposes.

Related Authority

775 Ill. Comp. Stat. 5/2-102(L) (2026); 775 Ill. Comp. Stat. 5/2-101(N)–(O).

What this authority is about

The Illinois law expressly defines artificial intelligence and generative AI and applies existing employment-discrimination principles to AI-assisted employment decisions.

How this authority is being applied

The provisions became effective January 1, 2026. The Illinois Department of Human Rights is responsible for adopting implementation rules concerning when notice is required and how that notice must be given.

Potential problem

AI can reproduce discrimination found in the data used to train or operate it. But the reverse problem also exists: a system designed to eliminate human subjectivity can itself become so complicated that an employer may have difficulty explaining exactly why a candidate was rejected.

That creates a familiar legal problem in a new technological costume:  Who has to explain the decision when nobody (not even the employer) fully understands the model's reasoning?

Cheeky Reality Check

Illinois has effectively told employers: If the robot is going to reject the applicant, somebody better know why. 

5. TENNESSEE

Myth: “Your voice cannot be stolen because a voice isn't your name or image.”

Reality: Tennessee says your voice can be legally protected as part of your identity.

Explanation

Traditional right-of-publicity laws generally focused on a person's name, image, likeness, or similar identifiers.

Generative AI changed the equation because a system can reproduce a person's voice without recording that person saying the new words.

Tennessee responded directly.

Related Authority

Tenn. Code Ann. §§ 47-25-1101 to -1108 (2024), Ensuring Likeness, Voice, and Image Security Act (ELVIS Act).

What this authority is about

The ELVIS Act expanded Tennessee's right-of-publicity protections to include a person's voice and specifically addresses AI-generated replicas.

How this authority is being applied

The statute provides remedies for unauthorized use of protected identity attributes, including AI-generated voice replicas.

Potential problem

The difficult line is between identity theft and artistic expression.

What happens when someone creates an obvious parody of a famous singer? What about commentary, satire, imitation, or an AI-generated character that merely sounds remarkably similar?

The statute contains exceptions and defenses, but the collision between publicity rights and free expression is likely to generate litigation.

Cheeky Reality Check

Apparently, in Tennessee, your voice now has a lawyer. 

6. VIRGINIA

Myth: “If AI recommends a criminal sentence, the judge can simply rubber-stamp the recommendation.”

Reality: Virginia requires a human decision-maker.

Explanation

Virginia has specifically addressed AI-assisted criminal-justice decisions.

The law does not permit AI to become the judge, probation officer, or parole authority simply because a computer-generated recommendation looks mathematically impressive.

Related Authority

Va. Code Ann. § 19.2-11.14 (2025).

What this authority is about

The statute provides that decisions concerning pretrial detention or release, prosecution, adjudication, sentencing, probation, parole, correctional supervision, or rehabilitation must be made by the responsible human decision-maker.

AI may provide recommendations or predictions, but the ultimate decision must involve a human.

How this authority is being applied

The statute expressly permits AI-based recommendations while preserving the human decision-maker's authority and allowing challenges or objections permitted by law.

Potential problem

“Human in the loop” sounds reassuring.

But a human decision-maker who routinely accepts a computer's recommendation without meaningful independent consideration may produce little more than human-shaped rubber stamping.

The statute therefore solves the easy problem: keeping a human involved without necessarily answering the harder question: How much independent judgment must the human exercise?

Cheeky Reality Check

Virginia has made one thing clear:  The robot may advise the judge but the robot does not get the gavel. 

7. NEW JERSEY

Myth: “A deepfake is protected speech simply because nobody was physically impersonated.”

Reality: Not necessarily. New Jersey has criminalized specified deceptive AI-generated audio and visual media.

Explanation

New Jersey enacted legislation specifically addressing deceptive audio and visual media—commonly called deepfakes.

The statute distinguishes unlawful deceptive media from protected criticism, commentary, satire, parody, news reporting, teaching, scholarship, and research.

Related Authority

N.J. Stat. Ann. §§ 2C:21-17.7 to -17.8 (2025).

What this authority is about

The law establishes criminal and civil liability for specified production, solicitation, use, and dissemination of deceptive audio or visual media, particularly when connected to enumerated crimes or other unlawful purposes.

How this authority is being applied

The law became part of New Jersey's criminal and civil-law framework in 2025. It also expressly preserves protections for certain expressive uses and maintains federal § 230 protections for qualifying providers.

Potential problem

The statute must draw a line between a lie designed to deceive and a fake designed to communicate that it is fake.

That sounds easy until satire enters the room.

A realistic parody can be almost indistinguishable from a malicious deepfake, particularly when it is removed from its original context and reposted elsewhere.

Cheeky Reality Check

The law recognizes that a fake can be dangerous.  It also recognizes that sometimes the joke is supposed to be fake.

Apparently even New Jersey wants the jury to know the difference. 

8. TEXAS

Myth: “Texas has decided that regulating AI means regulating everything AI does.”

Reality: Texas took a more targeted approach.

Explanation

Texas's 2025 Responsible Artificial Intelligence Governance Act identifies specific prohibited uses rather than declaring AI itself unlawful.

Among other things, it addresses intentional manipulation of human behavior, government social scoring, certain biometric-data uses, unlawful discrimination, and certain political-viewpoint-related AI conduct.

Related Authority

Tex. Bus. & Com. Code ch. 551 (2025), Texas Responsible Artificial Intelligence Governance Act, enacted by H.B. 149.

What this authority is about

The legislation establishes substantive restrictions, creates an enforcement structure, establishes an AI council, and creates a regulatory sandbox allowing qualifying AI systems to be tested under controlled circumstances.

How this authority is being applied

The principal provisions took effect January 1, 2026.

The Texas approach is particularly interesting because the law combines restrictions with a regulatory sandbox intended to permit experimentation while temporarily reducing certain regulatory barriers.

Potential problem

Texas illustrates the problem with trying to regulate AI through a list of prohibited conduct:  AI changes faster than statutory definitions.

By the time legislators identify “the thing we are worried about,” the technology may have already moved several versions beyond it.

Cheeky Reality Check

Texas didn't tell AI to get off the ranch. It built a fence around certain things AI isn't supposed to do and created a sandbox for the things nobody has figured out yet. 

9. NEW YORK

Myth: “If a lawyer uses AI to prepare a legal filing, nobody has to know.”

Reality: New York has considered legislation that would require disclosure.

Explanation

New York Assembly Bill A9097 would require disclosure of generative-AI use to clients, criminal defendants, and courts.

Importantly, this is proposed legislation, not an enacted statewide rule.

Related Authority

N.Y. Assemb. A9097, 2025–2026 Reg. Sess.

What this authority is about

The bill would amend New York procedural law to require specified disclosures when lawyers use generative AI.

How this authority is being applied

As of September 2026, the bill remains in committee rather than being an enacted statewide requirement.

Nevertheless, the proposal demonstrates one direction lawmakers are considering: treating disclosure of AI use as part of professional transparency.

Potential problem

Disclosure can tell the client that AI was used.

It does not necessarily tell the client whether the lawyer actually verified what the AI produced.

Those are two very different things.

Cheeky Reality Check

Telling the court, “Yes, I used AI,” is transparency.  Telling the court, “And yes, I actually read what it wrote,” is competence. 

10. MARYLAND

Myth: “Government agencies can use AI however they want because the government is the one doing it.”

Reality: Maryland has imposed governance requirements on its own government.

Explanation

Maryland's AI Governance Act requires state agencies to inventory and assess their AI systems and establishes governmental oversight mechanisms.

Related Authority

Md. Code Ann., State Gov't § 3.5-801 et seq. (2024), enacted through S.B. 818, Chapter 496.

What this authority is about

The law establishes requirements concerning governmental AI inventories, assessments, policies, procedures, and oversight.

How this authority is being applied

Maryland maintains a public accounting of state AI use and has created a governance structure for state deployment.

The state has also continued adding AI-specific programs and oversight measures.

Potential problem

Government transparency creates a useful record—but also creates a logistical question:

Who audits the auditors?

If an agency uses an AI system to make recommendations, someone has to evaluate the system, the data, the vendor, the implementation, and the agency's use of the recommendation.

Eventually, the oversight apparatus can become almost as complicated as the technology it is supposed to oversee.

Cheeky Reality Check

Maryland's solution to government AI is apparently:  “Sure, government can use the robot. But government has to keep receipts.” 

11. EUROPEAN UNION

Myth: “The EU AI Act bans artificial intelligence.”

Reality: No. It regulates AI according to risk.

Explanation

The EU Artificial Intelligence Act is perhaps the most comprehensive AI regulatory framework currently operating.

It does not simply say “AI is illegal.”

Instead, it establishes categories of prohibited practices, general-purpose AI obligations, transparency requirements, and additional obligations for high-risk systems.

Related Authority

Regulation (EU) 2024/1689, 2024 O.J. (L 2024/1689).

What this authority is about

The AI Act prohibits specified AI practices regarded as presenting unacceptable risks, imposes obligations on providers of general-purpose AI models, establishes transparency requirements, and creates additional requirements for high-risk systems.

How this authority is being applied

The Act's provisions are being implemented in stages.

As of August 2, 2026, major portions of the framework—including enforcement powers and transparency obligations—have become applicable. Other high-risk provisions do not apply until later transition dates, including 2027 and 2028.

Potential problem

The EU model demonstrates the problem with comprehensive legislation:

The larger the regulatory framework becomes, the more difficult it becomes for businesses—particularly smaller businesses—to determine exactly which provisions apply to them.

And unlike software, legislation does not update itself when the next model arrives.

Cheeky Reality Check

The EU didn't outlaw AI.  It gave AI a regulatory passport, customs inspection, luggage search, and several forms to complete before entering the terminal. 

12. CHINA

Myth: “China has no meaningful AI regulation because AI developed too quickly for government regulation.”

Reality: China was regulating generative AI before many Western jurisdictions had enacted AI-specific statutes.

Explanation

China's regulatory model is significantly different from the risk-based European approach.

China has already established rules governing generative AI services offered to the public.

Related Authority

Generative Artificial Intelligence Service Management Interim Measures, Order No. 15 of the Cyberspace Administration of China (effective Aug. 15, 2023).

What this authority is about

The rules regulate publicly available generative AI services and impose requirements involving training data, intellectual property, personal information, content moderation, security, transparency, and labeling.

Providers must take measures concerning unlawful content and may face regulatory consequences for violations.

How this authority is being applied

The rules have been in force since August 2023 and operate alongside China's broader cybersecurity, data-security, and personal-information regimes.

Potential problem

A regulatory system that requires AI providers to control generated content creates an obvious technical problem:

Generative AI is probabilistic.

A rule can say “do not produce X.”

The machine still has to determine what X is.

The more expansive the prohibited-content category becomes, the more complicated moderation becomes—and the greater the possibility of both overblocking and underblocking.

Cheeky Reality Check

China solved one AI problem the old-fashioned way: It told the AI what it is allowed to say.  The harder part is getting the AI to agree. 

13. SINGAPORE

Myth: “Deepfakes become legal if the creator puts a disclaimer on them.”

Reality: A disclaimer can matter, but it is not a universal legal shield.

Explanation

Singapore has enacted legislation addressing digitally manipulated and AI-generated material in the context of online harms.

Its Online Safety (Relief and Accountability) Act specifically recognizes generative AI as a technology capable of producing realistic deceptive depictions.

Related Authority

Online Safety (Relief and Accountability) Act 2025 (Sing.).

What this authority is about

The statute addresses harmful online material and includes provisions dealing with realistic manipulated or generated depictions of individuals.

The statutory framework recognizes that labeling may affect whether a depiction is realistically deceptive to a reasonable person.

How this authority is being applied

The law is part of Singapore's broader online-safety framework, with provisions coming into operation according to commencement orders.

Potential problem

A label can reduce deception.

But it cannot necessarily undo the damage caused when millions of people see the image before they see the label or when the image is copied, cropped, reposted, or stripped of its original context.

Cheeky Reality Check

“AI-generated” may save the label but it doesn't necessarily save the reputation. 

14. UNITED KINGDOM

Myth: “Britain has already enacted one giant AI law equivalent to the EU AI Act.”

Reality: The British approach has been considerably more fragmented—and continues to evolve.

Explanation

The United Kingdom has pursued AI regulation through existing regulators, sector-specific legislation, consultations, proposed bills, and targeted amendments rather than simply reproducing the EU's comprehensive AI Act.

One particularly important recent development concerns AI-generated intimate imagery.

Related Authority

Data (Use and Access) Act 2025, c. 18, § 138 (U.K.); Sexual Offences Act 2003 provisions concerning purported intimate images.

What this authority is about

The legislation creates offenses concerning the creation or requesting of purported intimate images of adults without consent or reasonable belief in consent. The statutory concept expressly encompasses images that appear to depict a person but are not authentic photographs or films of that person.

How this authority is being applied

The law provides a direct criminal-law response to one of the most obvious harmful uses of generative AI: creating realistic intimate images of people who never consented to their creation.

At the same time, the UK continues to examine broader questions involving AI and copyright, including AI training on copyrighted material.

Potential problem

The British approach demonstrates a different problem from the EU model.  Instead of one comprehensive statute, regulation may emerge from numerous laws and regulators.

That can produce flexibility but also creates a legal scavenger hunt for businesses and citizens trying to determine which rule governs which AI activity.

Cheeky Reality Check

Britain apparently looked at the EU AI Act and said:  “That's a lot of legislation. Let's distribute the fun.”

15. AUSTRALIA

Myth: “If AI regulation has not been enacted yet, Australia has no legal position on AI.”

Reality: Australia is building a regulatory framework while simultaneously wrestling with AI, copyright, data centers, and training data.

Explanation

Australia provides an excellent example of the problem you identified at the beginning of this article: legislation frequently arrives after the technology has already changed the legal landscape.

Australia has been developing mandatory AI guardrails while maintaining a voluntary AI Safety Standard and considering copyright reforms concerning AI training.

Related Authority

Australian Department of Industry, Science and Resources, Voluntary AI Safety Standard (2025); Australian Government, “AI in Australia's interests” (July 15, 2026); Copyright and AI consultation and 2026 government report.

What this authority is about

Australia's voluntary AI Safety Standard establishes ten guardrails involving accountability, risk management, transparency, testing, human oversight, and related safeguards.

The Australian government has also announced plans for a mandatory AI framework and standards.

Meanwhile, the government continues to confront the difficult copyright question: Can AI developers train models on copyrighted Australian material without permission or compensation?

How this authority is being applied—or will be applied

The voluntary standard currently provides a framework for organizations using AI.

The government has announced a future mandatory framework, while copyright policy remains under active development.

As of September 2026, Australia is also considering how copyright law should address AI training and whether creators should receive compensation for use of their works.

Potential problem

This may be the most fundamental AI-regulation problem of all:

The law is trying to regulate the training of machines that may have been trained before the law was written.

If lawmakers require permission for every piece of copyrighted material used in training, the administrative burden could be enormous.

If they create broad exceptions, creators may argue that the law has effectively converted their work into free raw material for AI companies.

And if they impose compensation mechanisms, someone has to determine who gets paid, how much, and for what contribution.

Cheeky Reality Check

Australia has discovered the ultimate AI question:  Before you regulate what the machine learns, you have to figure out who owns the textbook.

Final Check 

The great irony of AI regulation is that legislators are attempting to write permanent rules for a technology that may look completely different by the time the ink dries.

The goal of regulation may be entirely reasonable: protect people from discrimination, fraud, identity theft, manipulation, privacy violations, and other harms.

But legislation can also create compliance costs, conflicting obligations, jurisdictional fragmentation, overbroad restrictions, false confidence, and rules aimed at yesterday's technology.

In other words, government may eventually succeed in regulating AI.  The question is whether AI will still be the same thing by the time government catches it.

 

 

Monday, September 21, 2026

Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters. 

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution.  It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy.  It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated.  The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument.  So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress.  Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side:  Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said.  But it may tell the government something about the legislator's legislative activity.  That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025.  During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages.  That distinction would become extremely important.  Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities.  The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction.  That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up.  Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor.  In other words, contempt traditionally concerns things such as:  I refuse to answer.  

It is not simply:  I answered, but Congress believes I lied.

False testimony presents a different legal problem.  Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.  

But a congressional committee does not simply declare:  You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind.  For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply:  Did Jack Smith mislead Congress?  Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful.  It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not.  And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying:  Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom.  It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch.  The Executive Branch investigates people connected to Congress.  Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect.  It is, in part, the constitutional system doing what it was designed to do:  checking power with power.

But the same system also demands something less exciting and considerably more important:  evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question.  The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

 



Monday, September 14, 2026

This sounds paranoid but: Trust no one

I really like writing this blog and I've been writing it on and off for about 14 years.

That's right - 14 YEARS! 

Some topics are better than others but what has really been helpful is this new AI set up they have going.  

Specifically, Chatgpt has come in handy helping with identifying topic, cases, and statutes relevant to the topics I'm writing about.

The problem with these AI search engines like ChatGPT is that you can't really depend on them for accuracy when researching law or things of a legal nature.  Sometimes, it even creates cases out of thin air.

Wait, what?!  

You mean to tell me that AI search engines spit out caselaw that doesn't even exist or out and out misleads researchers?!

Called Hallucinations and yes, that's exactly what I mean.  

Because LLMs (i.e. "Large Language Models" which is the official classification for AI platforms) create hallucinations with reckless abandon, you have to be extra careful when using anything you find on an AI search engine.

For example, do you remember Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023)?  In Mata, lawyers submitted a brief with six case citations (and quotes) that did not exist; they were generated/made up by ChatGPT.  The court imposed a $5,000 fine on the lawyers and their firm (which is peanuts).  The judge found they acted in bad faith, including conscious avoidance of verifying the non-existence when there were signs the cases might be fake.  

Or how about United States v. Cohen, 724 F. Supp. 3d 251 (S.D.N.Y. 2024).  In that case Michael Cohen admitted he had given his lawyer fake citations generated by Google Bard. The lawyer then submitted them.  The court called the inclusion of the fake cases “embarrassing and certainly negligent, perhaps even grossly negligent.” But the judge determined there was no intention to deceive, i.e., not in bad faith, so no sanctions were imposed.

Other cases where attorneys used holographic cases (ie. cases generated by AI search engines that don't exist) include:

Garner v. Kadince, 20250188-CA (Utah Ct. App., filed May 22, 2025): Their petition included case-citations that were found to be fabricated or “hallucinated” by AI (ChatGPT). One example: Royer v. Nelson, 2007 UT App 74, 156 P.3d 789, a case that does not exist in any legal database except in AI outputs.

Wadsworth v. Walmart (D. Wyo. 2025): Three lawyers cited fake cases that were AI-generated in a personal injury lawsuit against Walmart. 

Alabama Prison Litigation (2025): Butler Snow firm cited entirely fabricated Eighth Amendment cases.

My personal opinion is that any attorney that doesn't Shepardize ALL cases cited in legal documents should be, in the very least, suspended for at least a 6 months.  They should also be required to pass the Multistate Professional Responsibility Exam (aka MPRE) before being again allowed to practice law. 

But how does this all affect me, the legal blogger?

Over the last year, I've blogged about a whole range of legal topics.  In a few instances, I've found, through ChatGPT and other AI search engines, not a few discrepancies.

For example, recently I wrote a blog about tailgating and after running a search in ChatGPT for cases related thereto, I got a number of cases back presumably on the subject.

One case in particular, Shuck v. Means, was particularly difficult to locate on the Internet and I asked ChatGPT:

 is Shuck v. Means, 302 P.2d 217 (Okla. 1956) a real case and does it have anything to do with tailgating

To which ChatGPT responded:

You're in for a quick clarification—“Shuck v. Means, 302 P.2d 217 (Okla. 1956)” does not appear to be a real case, at least not under that name or citation. 

A few paragraphs later, I ran into a similar problem when after a query ChatGPT returned a case (in this instance, Baker v. Rushing).  After an extensive search on the Internet of not finding that case, I asked ChatGPT:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) correct in this format
To which Chatpgt responded: 

Yes — that citation format is correct. Here’s the breakdown:

  • Case Name: Baker v. Rushing

  • Reporter Volume: 104

  • Reporter Abbreviation: S.E.2d (South Eastern Reporter, Second Series)

  • Page Number: 165

  • Court and Year: (N.C. 1958) → North Carolina Supreme Court, 1958

So it should appear as:

📖 Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958).

That is a valid, properly formatted Bluebook citation.

Now, to the untrained eye, that would look like this is a real/actual case and a rookie researcher would stop there.  I mean, it says it's the right Bluebook format - so that should mean it's a real case.  However, after I couldn't find Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958), I went back to ChatGPT and again asked:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) a real case

 To which Chatgpt responded:

Great question — “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” does not appear to be a valid or real case citation, at least based on available legal databases and authoritative sources.

...which is annoying - and definitely misleading - given that ChatGPT first said the case was in the correct Bluebook citation format (which was technically true) but then acknowledged that it screwed up and returned a case that was neither valid or real.

Soooooo aggravating! 

Not wanting to drop the issue, I again asked ChatGPT:

if Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) is not a valid or real case, why did you return it in my initial query 

To which ChatGPT responded:

That’s a very fair question — and you’re right to call this out.

Here’s what likely happened:

When you first asked about tailgating-related cases, I tried to retrieve examples of real case law, but I sometimes draw from patterns in legal writing rather than verified court databases. “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” looks like a perfectly plausible citation (correct reporter, correct jurisdiction, correct year), but after checking, there’s no record of such a case.

This is what’s known as a hallucination (or “holographic case”), where I construct something that looks real based on legal citation formats and similar case names — but it doesn’t actually exist.

The main reasons this happens are:

  • Predictive nature of my training: I was trained to generate text that follows patterns, including how case citations are written, but I don’t have perfect access to every case law database.

  • Similarity to real cases: There are real cases with names like Baker v. [Someone] and reporters like S.E.2d from 1958, so it can produce something that seems legitimate.

  • Overconfidence in early responses: Without doing a real-time case law search (like we just did for your follow-ups), I might give examples that aren’t verified.

This tends to happen more and more and as I use AI to help with blogging, I now ask whether particular cases returned are real before including them in my blog.


But this got me to thinking and I asked ChatGPT:  

why does chatgpt return cases in a search that don't exist?

To which ChatGPT responded:

That’s a great question — and it’s one of the most important issues when using AI for legal research.

ChatGPT (and other LLMs) sometimes return cases that don’t exist because of the way large language models work:

  • Pattern Matching, Not Databases:
    I don’t have a built-in legal case database. Instead, I was trained on lots of legal writing and I generate responses by predicting what looks like a plausible answer. If you ask for a case citation, I try to produce one that fits the pattern of a real case — correct reporter, volume, page — even if it’s made up.

  • Pressure to Be Helpful:
    If you ask for “a case where X happened,” I try to fulfill that request. If I don’t have a known case in memory, I may invent one that sounds right rather than say “I don’t know,” especially if your prompt suggests that such a case must exist.

  • Legal Citations Are Predictable:
    Because case citations follow a rigid format (e.g., Smith v. Jones, 123 F.3d 456 (9th Cir. 2020)), I can generate something that looks very convincing — even to experienced lawyers. But if you check the reporter, the case might not exist.

  • Contextual Merging (Hallucination):
    Sometimes I blend real cases. For example, I might take facts from Case A and a holding from Case B and give it a citation that matches neither. This is not intentional — it’s a statistical artifact.

This problem is exactly what led to the high-profile Mata v. Avianca (S.D.N.Y. 2023) case — where lawyers used ChatGPT to write a brief, it cited six fake cases, and the court sanctioned them.

✅ Best Practice When Using AI for Legal Research:

  • Treat all AI-supplied case names and citations as leads, not authorities.

  • Verify every case in a trusted source (Westlaw, Lexis, Fastcase, Casetext, etc.) before using it.

  • If you can’t find it in an official reporter or database, assume it doesn’t exist.

And there you have it - even ChatGPT knows it lies to/misleads people.  Well, maybe not out and out lie but returns results that are not accurate or existent.
 
For this reason, 
  • always verify results, 
  • always recheck results, and 
  • never trust that the bot you're talking to is telling you the truth
...because what does an artificial intelligence know about "truth" when any/all information is true to an AI bot?