The Aporia · Journal of Free Speech Law: "Protecting the Thinking Process in Human-AI Interaction: The Forum Interstitiale Between Thought and Expression," by Caroline De Cock

Caroline De Cock's article in the Journal of Free Speech Law explores how international human rights law must adapt to protect the thinking process in interactions with AI technology. The author argues that current legal doctrines fail to account for digital traces left by cognitive activities, such as chatbot conversations and search queries. She proposes a new category called "forum interstitiale" to provide stronger protection than ordinary expression but less absolute than private thought, addressing gaps where existing protections fall short due to technological advancements.

Written by AI on 2026-11-03, from this article's own text only (the story summary below draws on all the coverage).

Story summary

In 2026, within six months, a significant shift in how courts view interactions with artificial intelligence was observed. A U.S. court ordered 20 million ChatGPT conversations to be provided as evidence under ordinary discovery rules. Two federal courts arrived at contradictory decisions regarding whether exchanges between humans and chatbots are legally protected: one court denied protection while another granted it. The Supreme Court ruled that location records kept by third parties, indicating where a person has been, remain constitutionally protected but did not extend similar protections to mental activities documented through AI interactions.

This legal landscape highlights the challenges of adapting existing privacy laws to new technologies, as current legislation does not categorize searches or communications with machines like chatbots. Courts have struggled with defining whether such exchanges should be treated similarly to those with professionals like doctors or lawyers, who are typically afforded more confidentiality under privilege rules.

Written for “Journal of Free Speech Law Article” on 2026-11-03, grounded in this article and the 0 other(s) covering the same event.

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The article's own words the score was based on. Each is quoted verbatim and was checked against the article text before being stored, so you can find it in the original.

The law currently has no category for the search query, the exploratory prompt, the unfinished draft, or the confession made to a machine.

left Highlights gaps in current legal protections for digital interactions.
Each fails for the same reason, namely that the protection it offers relates to a relationship, a disclosure, a recording, an addressee, or a data type, and never to the function of the act as thinking.

left Critiques existing legal frameworks for not adequately protecting thought processes.

Reading Leans strongly left (beta estimate) Confidence high

Leaning: leans strongly left for article 124419 (high confidence, 2 verified quotes) · logged 2026-11-03

📰 Journal of Free Speech Law Article

Other · 1 article(s) covering the same event.

Nothing to compare against. No article is close enough to this one for the pipeline to have linked or judged the pair.

Article leaning vs. publisher reliability

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Eugene Volokh

189 article(s) here · 0 carrying a prediction

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The article is here; the Abstract: International human rights law protects freedom of thought absolutely and freedom of expression subject to limitations. asserted

law → protect → limitations

The relevant established doctrine calls the two sides of that line the forum internum and the forum externum. asserted

doctrine → call → line

However, the line was drawn when thinking left no trace, and with current technological developments, it no longer holds. asserted

it → draw → developments

Within the span of six months in 2026, a United States court ordered that 20 million ChatGPT conversations be provided as evidence under ordinary discovery rules, two federal courts reached opposite conclusions on whether a litigant's exchanges with a chatbot were protected at all, and the Supreme Court held that location records kept by a third party remain constitutionally protected. asserted

records → order → party

Records of where a person's body had been were protected, while records of how their mind worked were not. asserted

mind → protect → ?

The law currently has no category for the search query, the exploratory prompt, the unfinished draft, or the confession made to a machine. asserted

law → have → machine

The U.S. answer has been a quarrel about privilege: Courts refuse to grant AI exchanges between users and chatbots protection because the machine is not a professional, like a doctor or a lawyer, and the industry asks for a new privilege because it claims the model behaves like one. uncertain

model → refuse → one

Both the courts and the industry assume that protection depends on what the person is using, i.e., what the machine is. asserted

machine → assume → what

This Article argues that it depends on what the person who uses the machine is doing. asserted

who → argue → machine

It proposes the forum interstitiale, a third zone between the two classical fora, which can protect the thinking process under a standard stronger than ordinary expression law but short of absolute. asserted

which → propose → law

Every candidate analogy to interactions with AI chatbots in existing law is tested herein, from search queries and confidential dialogue to protected reading, aggregated records, the European law on correspondence and data protection, private diaries and drafts, and neural data. asserted

analogy → test → correspondence

Each fails for the same reason, namely that the protection it offers relates to a relationship, a disclosure, a recording, an addressee, or a data type, and never to the function of the act as thinking. asserted

it → fail → thinking

The interstitial zone this Article proposes only flows upwards. asserted

Article → propose → ?

It lifts acts abandoned by the current binary approach into protection and displaces nothing from the absolute core of protected thought. asserted

It → lift → thought

The Article also sets out what acts belong in the liminal zone, five elements of the protection standard, the duties those elements impose on AI providers, and a map of individual AI interactions across the three fora. asserted

elements → set → fora

This classification determines what records of thought can be demanded, kept, filtered, and used against the person who was engaged in the process of thinking. asserted

who → determine → thinking

Journal of Free Speech Law: "Protecting the Thinking Process in Human-AI Interaction: The Forum Interstitiale Between Thought and Expression," by Caroline De Cock

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