In corporate governance, as in so many other areas, artificial intelligence is all the rage.  If you read just about anything relating to corporate boards, you’re almost certain to learn that boards are scratching their collective heads to figure out where and how their companies can use AI, how they can best govern the use of AI, and all sorts of related topics.  However, while boards may be talking about AI – and possibly even doing something about it – it appears that few, if any, people are talking about the possible use of AI in the boardroom itself. 

Maybe this is understandable; after all, boards are rightly concerned about risks and are not known as hotbeds of innovation.  However, it’s still surprising that the last major technological innovation impacting boardrooms was the introduction of board portals, which have been around for roughly 20 years.

I suspect that AI will eventually work its way into the boardroom; I can imagine that in a few years AI may routinely enable directors to tweak assumptions underlying management forecasts, check financial statements for compliance with GAAP and SEC rules, and so on.  That will pose a variety of legal and policy questions, such as whether directors can avoid responsibility for bad decisions by claiming reliance upon AI and whether a robot equipped with AI can serve as a director. 

For the time being, however, I’d like to focus on a narrower question that is beginning to be asked in the nerdy community of corporate secretaries: Can (and should) AI be relied upon to draft board and committee minutes?  Some clients have actually asked me similar questions in the hope that they may be able to lighten their workloads by laying off the tedious task of drafting minutes onto the AI programs with which their phones, tablets, and laptops are now equipped. 

Call me a luddite, but for me, at least right now, the answer is NO.  Here are some reasons why:

• First, there are those pesky cybersecurity risks.  We’ve all heard that blockchain can’t be hacked and similar claims about other technologies.  Maybe so, but boards may (rightly) not want to take the chance.

• Related concerns about confidentiality also arise.  Will external AI providers have access to sensitive information provided to and discussed at board meetings?  Will more employees be able to access that information?  These risks are already present when a company uses a board portal or other technology, but the risks may grow, possibly geometrically or even exponentially.

• How about laws requiring the consent of all parties before a recording can be made?  I’m woefully ignorant when it comes to these laws, but if a meeting is taking place in one state but board members and other attendees are in several other states, what law or laws would apply?  How does this work when directors or others are overseas?  Must a consent be obtained before each meeting, or is it possible to get a permanent or long-term consent? If, as a matter of courtesy, attendees are advised at the outset of a meeting that it is to be recorded, what do you do when even one attendee says “no”?  I’d hate to be a corporate secretary who has to manage these concerns, particularly when people are invited to join a meeting at the last minute. 

• From a more substantive governance perspective, it is highly inadvisable to record meetings, and everyone I’ve spoken to on the subject believes that in order to prepare minutes the AI program in question would have to record meetings.  Even if the recording or transcript or whatever is deleted or destroyed once the minutes are final, you know that it will be lurking somewhere, which means that plaintiffs’ attorneys can get their creative mitts on them.  Anyone who’s ever had to deal with a litigation involving alleged board misconduct knows that minutes are not supposed to be transcripts, and if you don’t believe me I suggest you ask Leo Strine. (More on that some other time.) The alternative might be to have selected portions of the meeting recorded via AI, but that strikes me as a distinction without a difference.

• Over the many years in which I served as a corporate secretary, I found that drafting and reviewing minutes is a lengthy process that requires close attention and checking and re-checking the materials prepared for the meeting, notes taken at the meeting, and other sources to make sure that the minutes accurately reflect what actually happened at the meeting.   Even in the best of circumstances, this process can be painstaking and tedious.  If someone (or something) else drafts the minutes, it can be difficult to apply the same level of diligence and scrutiny. (As an aside, I never followed the practice of drafting minutes before the meeting, because it increased the risk that I’d miss something wrong in the pre-meeting draft.)  This concern is magnified given the current propensity of AI to make mistakes.  And knowing that Mr. (or Ms.) Bot is recording the meeting and drafting the minutes, will the corporate secretary be more likely to tune out at the meeting, thereby reducing the likelihood that he or she will miss something?

In the interest of brevity (though it may be too late for that), I’ll omit a host of other concerns associated with the use of AI to draft minutes.  But they are there.  And for the reasons cited above and those I’ve omitted, my vote on using AI for this purpose is a firm and emphatic “no.”