[kopecs]

Do you think the 4th amendment enjoins courts from requiring the preservation of records as part of discovery? The court is just requiring OpenAI to maintain records it already maintains and segregate them. Even if one thinks that _is_ a government seizure, which it isn't---See Burdeau v. McDowell, 256 U.S. 465 (1921); cf. Walter v. United States, 447 U.S. 649, 656 (1980) (discussing the "state agency" requirement)---no search or seizure has even occurred. There's no reasonable expectation of privacy in the records you're sending to OpenAI (you know OpenAI has them!!; See, e.g., Smith v. Maryland, 442 U.S. 735 (1979)) and you don't have any possessory interest in the records. See, e.g., United States v. Jacobsen, 466 U.S. 109 (1984).

[alwa]

This would help explain why entities with a “zero data retention” agreement are “not affected,” then, per OpenAI’s statement at the time? Because records aren’t created for those queries in the first place, so there’s nothing to retain?

[kopecs]

AIUI Because if you have a zero data retention agreement you are necessarily not in the class of records at issue (since enterprise customers records are not affected, again AIUI per platinffs' original motion which might be because they don't think they're relevant for market harm or something).

So I think that this is more so an artefact of the parameters than an outcome of some mechanism of law.

[paulddraper]

> There's no reasonable expectation of privacy in the records

There is a reasonable expectation that deleted and anonymous chats would not be indefinitely retained.

> The court is just requiring OpenAI to maintain records it already maintains and segregate them.

Incorrect. The court is requiring OpenAI to maintain records it would have not maintained otherwise.

That is the crux of this entire thing.

[kelnos]

> The court is requiring OpenAI to maintain records it would have not maintained otherwise.

Not quite. The court is requiring OpenAPI to maintain records longer than it would otherwise retain them. It's not making them maintain records that they never would have created in the first place (like if a customer of theirs has a zero-retention agreement in place).

Legal holds are a thing; you're not going to successfully argue against them on 4A grounds. This might seem like an overly broad legal hold, though, but I'm not sure if there are any rules that prevent that sort of thing.

[paulddraper]

> This might seem like an overly broad legal hold

Exactly

[tptacek]

Litigation holds do not violate the 4th amendment.