Kate Downing

I spent some time this week going through the whole suite of OpenAI agreements and policies and was quite surprised at what I found in their Terms of Use (TOU). It turns out that OpenAI’s confidentiality provision is unilateral: it includes confidentiality protection solely for OpenAI’s information. That means that neither the inputs provided to OpenAI nor the output it produces are treated as confidential by OpenAI. This is somewhat unusual in the context of SaaS vendors, who usually at least acknowledge that the data provided to them is confidential, even if they try to limit their liability with respect to keeping such data confidential over the course of the contract. Many companies are likely to be caught off guard by this provision.

Companies the world over are looking to integrate OpenAI technologies, particularly ChatGPT, into their products and services. Microsoft has famously integrated a version of ChatGPT into its Bing search engine, with plans to integrate it with products and services throughout the rest of the Microsoft ecosystem. However, many companies will have to think twice about those integrations if OpenAI doesn’t change its tune. That’s because nearly every SaaS company has at least a subset of customers whose data they promise to treat as confidential, requiring them to pass along those confidentiality requirements to any third party who gets access to such customer data. If a vendor like OpenAI won’t treat any of a company’s inputs as confidential, then they are also not treating any input provided by a company’s customer or about a company’s customer as confidential, putting companies in violation of their own terms of use and/or non-disclosure agreements with their customers. Likewise, it means that companies cannot use OpenAI technologies to solicit or analyze certain categories of data about their staff, which the companies are bound to keep confidential either by law or by their agreements with their staff. That severely curtails the available use cases for OpenAI’s technologies.