An interview with media attorney David J. Bodney

Discussions about the risks of AI often focus on the tendency of AI models to make stuff up. For journalists, however, there is an additional risk: a subject of a journalist’s investigation could ask a court to issue a subpoena to an AI company, compelling it to turn over the reporter’s prompts.

A prompt is any input provided to an AI model. It might be a question, an instruction, or even a file upload. How should reporters think about this risk?

We interviewed David J. Bodney to find out. David is Senior Counsel at the law firm Ballard Spahr. He founded the firm’s Media and Entertainment Law Group, and has defended major news organizations in First Amendment and privacy cases for over 40 years, and briefed high-profile cases before the U.S. Supreme Court.

David has served as adjunct faculty at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication, Sandra Day O’Connor College of Law and at the James E. Rogers College of Law at the University of Arizona.

When prompts become evidence

BODNEY: I think there are all kinds of risks associated with the use of AI. And the subpoena of a reporter’s prompts is really just one of those risks.

The successful subpoena of such information would be a roadmap into the reportorial process. And it should be protected under the First Amendment, depending on the circumstances in which the subpoena arises.

If it’s a third party subpoena, say, in civil litigation, the reporter might stand a better chance of protecting the work product. If the reporter is a defendant in a defamation case, and the request for the documents or information arises in that context, the likelihood of a strong First Amendment defense, I think, decreases.

Proving intent and malice

BODNEY: If you’re revealing the reporter’s intention in the prompt, an adversary could deduce from the language used that the reporter had a bias, or worse.

The prompt could demonstrate malice, common law malice, which in Arizona is defined as hatred, contempt or ill will, as opposed to constitutional actual malice, which is knowledge of the falsity of reckless disregard for the truth.

That’s particularly risky. The prompt could show bias, it could show malice, it could reveal lots of things about intention, and intention is hugely important, you know? And a contemporaneous writing may be powerful proof of a journalist’s intention, more so than a lot of hemming and hawing on a witness stand two years later.

“If you’re revealing the reporter’s intention in the prompt, an adversary could deduce from the language used that the reporter had a bias, or worse.”

The illusion of privacy

BODNEY: Only if journalists are unaware of those risks are they
uniquely risky, because they are no different really from other kinds of communications.

I’ll give you this example. In defamation litigation where I have defended news organizations, there’s nothing worse than having to review 10 journalists’ email communications over a two-year period of time to see what’s in there. And quite possibly what’s in there in the form of written communications could be far more damaging to the case than the sentences at issue in the lawsuit itself.

Why? Because the reporter has gotten familiar with their keyboard and believes their computer is their trusted friend. Say, they’re emailing a former colleague who’s now at a different news organization. And they are sharing their innermost thoughts, and they’re thinking, incorrectly, they will forever be protected.

But the reality is that it all can be discovered. Or at least that should be the guiding assumption – that everything one puts in writing as part of the newsgathering process could be discovered. It may be subject to a First Amendment or some other privilege, but it may not, particularly if you are the subject of litigation.

I think the prompt is akin to: what did you ask the source? What did you say to the source? How did you phrase the question? And I think there’s a risk of becoming, or being viewed as, negligent, you know?

Becoming too familiar with those prompts. So is that a risk? Yeah.
What’s it akin to? And that’s kind of the way the law works its logic around these issues. So, how is it different from, you know, a phone call or a text or an email.

Establishing a retention policy

BODNEY: Do you keep your notes? For how long do you keep your notes, and why?

And different news organizations have different philosophies about the costs and benefits. I think it probably makes sense, no matter what the organization ultimately concludes, to be as consistent as possible in the policy, so that you are not at the last minute destroying your prompts or your notes just before you publish a story because you’ve received some threatening communications from the subject of your reporting.

That, it seems to me, is terribly risky.

How long does one retain these notes? What’s the rationale for the rule? That’s what I would spend the most time getting my head around.

If we go back to the analogy, I have suggested to some news organizations, well, if the statute of limitations for libel is a year, it might make sense to keep your notes for a year. If the statute of limitations however, is two years for false light invasion of privacy, maybe you keep them two years.

With news, broadcast news, on the other hand, they’re constantly recycling tape for storage and cost purposes. Is there something akin to the rationale for the constant recycling of broadcast tape in the world of prompts? I’m hard pressed to think of one. So then the question is, well, why are we doing this?

And you have to be prepared potentially for an adversary’s cross-examination. For example, they could ask: you deleted or discarded this evidence just because you were embarrassed about what you said or did?

And you know, the flip side of getting rid of a reporter’s notes, just like the flipside of getting rid of the prompts, could be, well, these prompts and the responses they generated will actually demonstrate that my reporting was righteous, that I was fair and accurate.

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This interview was edited for clarity.

What we're testing

Claude Cowork

We recently tested a desktop app called Claude Cowork using a 10,000-row Arizona Department of Education dropout dataset. We provided the raw data along with a data dictionary explaining nuances, specifically that many schools lack dropout rates due to privacy redactions.

We then asked Cowork to create an interactive data visualization for a news site.

Less than 10 minutes later, it produced a professional-grade interactive.
The highlight was a school lookup tool.

However, the summary statistics were problematic. Cowork presented a statewide average it had calculated by simply dropping the 43% of schools with missing data, ignoring that these redactions usually indicate very low dropout counts.

Consequently, the statewide rate was likely inflated. It failed to provide this context in its output.

The takeaway? Cowork creates beautiful interactives effortlessly, but you need to understand the data to audit its work and request changes.

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Gemini "Thinking" with YouTube

AI tools can make foreign language content accessible. Take Manoto TV, an Iranian satellite channel that airs call-in shows where ordinary Iranians share on-the-ground perspectives.

For anyone reporting on Iran, these programs can be a goldmine. But they’re hours long and in Persian.

By simply pasting a YouTube link into Gemini, and setting the model to "Thinking," the model can pull out summaries of what callers say, flag notable moments, and even let you zoom in on one individual’s account to quickly surface leads worth verifying.

Claims could then be cross-checked through captions, human translators, and other open-source methods.

It’s a force-multiplier: a way for journalists to cut through language barriers and time constraints to spot stories hiding in plain sight.

It’s not perfect. It can get time stamps wrong and will occasionally hallucinate.

But many models are not able to even attempt this task, and those that do are not anywhere near as good.