[HN Gopher] Justice Department says Google destroyed evidence re...
___________________________________________________________________
Justice Department says Google destroyed evidence related to
antitrust lawsuit
Author : integrale
Score : 259 points
Date : 2023-02-24 19:24 UTC (3 hours ago)
(HTM) web link (www.wsj.com)
(TXT) w3m dump (www.wsj.com)
| choppaface wrote:
| And they also teach employees how to Communicate with Care:
| always CC a lawyer and ask a question.
|
| https://arstechnica.com/tech-policy/2022/03/google-routinely...
|
| The issue here is not so much that Google is playing these games
| but how this draws energy away from OTHER games-- i.e. shipping
| and keeping alive new _products_ and offering real customer
| service for existing ones.
| p0pcult wrote:
| Wow, that's so completely fucked.
| jefftk wrote:
| _> always CC a lawyer and ask a question_
|
| People would add lawyers like this, but (a) it wasn't something
| the trainings said to do, (b) the lawyers hated it, and (c) it
| doesn't work.
|
| (I used to work at Google, speaking only for myself)
| lesuorac wrote:
| DOJ alleges that a) is factual [1]. Perhaps not in your
| training but I've also never seen the slides in the pdf
| before.
|
| [1]: https://regmedia.co.uk/2022/03/22/memo_in_support-to-
| sanctio...
| omginternets wrote:
| When does it not work, generally speaking?
| jefftk wrote:
| My understanding is that adding a lawyer to a conversation
| isn't sufficient to shield it from discovery. Instead you
| actually need to (a) be asking a lawyer for legal advice,
| (b) not cc or otherwise share with anyone who does not need
| that advice, and (c) not include unrelated matters. When
| I've written things that actually needed to be privileged I
| would start a separate email, address it only to the lawyer
| and specific people who also needed to know the advice, and
| keep the thread carefully on topic.
|
| (Not a lawyer)
| justeleblanc wrote:
| https://finance.yahoo.com/news/attorney-client-privilege-
| abu...
| omginternets wrote:
| I'm curious, what is the legal process for dealing with
| manufactured privilege?
| shadowgovt wrote:
| What is manufactured privilege?
| Jtsummers wrote:
| Communications with your lawyer are privileged.
| Communications with other people are not (necessarily)
| privileged. By looping in the lawyer it creates a pretext
| (that probably won't hold up) for claiming it is privileged
| communication.
| gopher_space wrote:
| Interesting. I just went to a meeting where my presence
| meant there could be no privileged communication even
| though the lawyer's client was also my client and they
| had requested my attendance.
| lesuorac wrote:
| The court can appoint somebody to verify that the documents
| in question actually deserve privilege. Ex. Mar-a largo
| documents [1]
|
| [1]: https://en.wikipedia.org/wiki/Special_master#The_Mar-a-
| Lago_...
| bloomingeek wrote:
| I'm not worried,Google will default to their motto, "Do more
| evil."
|
| Wait, is that right?
| qbrass wrote:
| The motto was "Don't _be_ evil. " It said nothing about how
| much evil you were allowed to _do_.
| avalys wrote:
| This is regulatory and legal overreach.
|
| Yes, there are laws about preserving evidence and records.
| However, these laws haven't been updated to reflect how office
| communication has changed over the years. No one would propose,
| circa 1950, that companies must record every conversation between
| two people in the office for regulatory compliance or lawsuit
| discovery, etc. purposes.
|
| But effectively, that's what retention requirements for chat
| messages amount to.
|
| What is the principled policy argument (ignoring practicality)
| for requiring retention of chat messages, but not requiring every
| employee to wear a body camera that permanently records every
| work-related interaction they have IRL?
| water-your-self wrote:
| This isnt equivalent to wearing a body camera. Maybe a screen
| recorder would warrant that comparison.
|
| Direct messages are a form of written communication
| cldellow wrote:
| Making everyone wear body cams: they weren't previously using
| body cams, you have to spend $ to buy them, the cams will
| capture me while using the washroom.
|
| Stopping the deletion of chats: an IT person has to toggle a
| setting.
|
| It feels pretty different to me! To roll with your 1950s
| analogy, it feels a lot more like the office secretaries being
| told that instead of shredding inter-office memos, they have to
| hold on to them.
|
| I realize you said ignoring practicality...but that seems like
| a weird constraint to add. Bureaucracies run through paperwork,
| so capturing emails and DMs are often sufficient, while being
| much less invasive and cheaper.
| m3kw9 wrote:
| It was a cron job your honour
| eastbound wrote:
| Soon: It was The AI. We can't do anything, since we can't
| predict how it behaves. Turns out this time it wanted to
| protect Google, but ya never know.
| shaan7 wrote:
| lol I see what you did there xD
| nosefrog wrote:
| > The government said the company only committed this week to
| permanently preserve its employees' chat messages--after DOJ
| officials informed Google they would file their motion for
| sanctions.
|
| As a current Google employee, I'm very happy about this change.
| megous wrote:
| "If you have something that you don't want anyone to know, maybe
| you shouldn't be doing it in the first place."
|
| ~Eric Schmidt
|
| lol
| HDThoreaun wrote:
| I believe Sundar got in trouble for labelling every single
| email "confidential attorney client privilege" and cc'ing the
| legal team so that none of what he says would be released in
| discovery.
| asah wrote:
| except that the harmless written word is notoriously easy to
| quote out of context and otherwise use "against you" in court.
|
| At google's scale, it's virtually impossible to NOT have
| mountains of "incriminating" conversations.
|
| Also, it seems arbitrary that OTR chat should be recorded but
| hallway conversations and phonecalls are ok to delete...
| throwaway29303 wrote:
| Mr. Schmidt also didn't want to leave _paper trail_ [0] to
| avoid being sued in another case as well.
|
| And somehow Mr. Schmidt considers himself to be a _well
| behaved_ [1] person. "I am very well tested, I
| am very well behaved." -Eric Schmidt
|
| [0] https://www.theverge.com/2013/1/23/3906310/the-no-hire-
| paper...
|
| [1] https://wikileaks.org/Transcript-Meeting-Assange-Schmidt
| shadowgovt wrote:
| He catches a lot of shit for his phrasing, but Schmidt had a
| habit of saying true things in a way that maximized the odds
| they'd be received poorly.
|
| (In context, they were talking about the long-retention and
| implicit-digital-footprint effects on online services, and he
| was noting that the trends were only going to become "more
| observation" and "more retention" over time... At some point,
| it becomes much cheaper to just not do the thing online if you
| want to preserve your privacy
|
| ... and in general, he was right. It's not just government
| observation; it's corporate observation and _private_
| observation, and the ability to churn through someone 's entire
| Twitter history, etc., etc.).
| deelowe wrote:
| A bit of a shitty answer though when the context surrounding
| the discussion was about whether Google was doing anything to
| protect privacy. Apple, by comparison, seems to have
| navigated the same environment extremely well. They of course
| can't prevent certain things from happening, but for what's
| within their control, they are doing what they can.
| donalhunt wrote:
| As someone who heard this first hand (probably at an all-
| hands or TGIF), the quote from the earlier post was very much
| not "don't use communication channels that leave a trail" and
| much more "don't do illegal shit".
|
| In addition, I fondly remember him quibbing that there is no
| internet in jail. :/
|
| Saying that, I'll leave you in the knowledge that Google Meet
| is excellent for off the record conversations (and executives
| are great for ignoring rules set for the rest of the
| company).
| donalhunt wrote:
| I wonder if in a decade or two, Eric's "adult supervision" era
| will be recognised as Google's heyday.
|
| Eric stepped down as Google's CEO in 2011 and it could be
| argued that the execution since then has been meh.
| [deleted]
| rlewkov wrote:
| But, but, but .... don't be evil.
| Eumenes wrote:
| But did you see the Year in Search video, it was so inspiring!
| klyrs wrote:
| I've said it before and I'll say it again: the only evil to a
| capitalist is loss of capital. The "don't be evil" motto still
| applies. Just not the way that you're accustomed to reading it.
| CatWChainsaw wrote:
| I'm surprised you're getting downvoted given the amount of
| snark in other comments. Or is the directness the part we're
| not supposed to be saying out loud?
| vorpalhex wrote:
| You're taking an issue and hijacking it for a culture war.
|
| Oh, the dress code is unfair? Well you see in Capitalism...
|
| Take the capitalism vs whatever argument somewhere else.
| dd36 wrote:
| You can't flush the drugs down the toilet!
| uoaei wrote:
| Economics isn't culture.
|
| "Culture war" isn't just "disagreements", it's
| disagreements about things that only exist in the realm
| of culture, e.g. saggy pants or watching people of the
| same gender kiss on TV.
|
| Economics, in fact, plays a central role here, given the
| profit motive that, to the bad actors, justifies these
| actions despite their illegality.
| vorpalhex wrote:
| > A culture war is a cultural conflict between social
| groups and the struggle for dominance of their values,
| beliefs, and practices.[1] It commonly refers to topics
| on which there is general societal disagreement and
| polarization in societal values.
|
| https://en.m.wikipedia.org/wiki/Culture_war
|
| It sounds like you are confusing culture with aesthetics.
| joadha wrote:
| They criticized Google for holding a value they perceived
| to be at odds with the underlying economic system.
|
| During a discussion of said company's defiance of a
| federal judge, such a critique seems pertinent to me!
|
| We have continually observed the most powerful actors in
| our system abusing it in consistent ways: cornering
| markets, becoming monopolies, bullying smaller companies,
| constructing walled gardens, diminishing the concept of
| consumer ownership, etc.
|
| I think we ought to allow comments like theirs in
| discussions like this.
| uoaei wrote:
| Where in that definition do you propose governance comes
| in? Do you think culture is governable? To me, culture
| lies outside the scope of governance entirely -- it's
| literally just what people do to express themselves and
| the ways they like to spend their time.
|
| > Societal values
|
| Notice it doesn't say economic or material values.
| klyrs wrote:
| You can criticize a person, you can criticize a company,
| but criticizing capitalism itself is never popular here.
| I've been called a communist for literally quoting Adam
| Smith.
| themitigating wrote:
| Because we are talking about a specific company and their
| actions.
| klyrs wrote:
| So was I. My crime is not seeing Google's ethical lapses
| in isolation?
| bogwog wrote:
| > The "don't be evil" motto still applies.
|
| Not exactly: https://gizmodo.com/google-removes-nearly-all-
| mentions-of-do...
| jvolkman wrote:
| > The updated version of Google's code of conduct still
| retains one reference to the company's unofficial motto--
| the final line of the document is still: "And remember...
| don't be evil, and if you see something that you think
| isn't right - speak up!"
| mitchellst wrote:
| I'll add a recent misfortune for a peer company:
| https://www.abajournal.com/web/article/judge-sanctions-faceb...
|
| Looks like the real powers in the US are losing patience with
| some of the low-level legal tomfoolery of big tech. About time.
| Nothing against the companies, but make your money by making
| products people love, not by playing footsie with the court
| system.
| autoexec wrote:
| Google thinks they are above the law and bigger and more
| powerful than the US government. It will be interesting to see
| if the courts throw the book at Google for directly disobeying
| them and assert themselves as having control or if they'll roll
| over and confirm Google as our unelected King.
| paxys wrote:
| Terrible. Slaps on the wrist for everyone. Maybe a $5M fine to
| really teach them a lesson.
| f38zf5vdt wrote:
| Spoliation is a crime
|
| https://lewisbrisbois.com/newsroom/legal-alerts/15-month-pri...
| masterof0 wrote:
| So do you think that Sundar will go to jail? please
| dd36 wrote:
| The judge will be really angry!
| krmbzds wrote:
| https://archive.is/7SiNn
| saagarjha wrote:
| I think we're going to see another cycle in tech, much like the
| one where they realized that people kept saying illegal things in
| a documented fashion and this kept getting them into trouble
| leading to short retention policies. Except this time it will
| probably involve mandatory court-ordered retention which will
| further push people towards dropping "let's discuss this offline"
| comments and trying to hide their conversations that way, which
| will probably also get regulated at some point. Company lawyers
| are always the "nanana I'm not touching you!" type where they
| just try to come up with some new cute way to skirt laws and it
| doesn't actually work, but I guess they can keep doing illegal
| things for a few years until judges catch up when them.
| theptip wrote:
| Not just tech; we're seeing this pressure in finance too. Matt
| Levine joked about this recently:
|
| > It really is wild that the SEC's official position is now
| that it is illegal to "use unofficial communications to do
| things like cut deals, win clients or make trades." "Conduct
| their communications about business matters within only
| official channels"! Imagine if that was really the rule! You
| can't have lunch with a client and talk about business, or have
| beers with your colleagues and gripe about work, because that
| does not create a searchable archive for the SEC to review.
|
| > Of course the SEC does not entirely mean this. Yet. But in
| like five years, technology -- and the SEC's interpretation of
| the rules -- will have advanced to the point that banks will
| get fined if their bankers talk about business with clients on
| the golf course. "You should have been wearing your bank-issued
| virtual reality headset and recorded the conversation," the SEC
| will say, or I guess "you should have played golf in your
| bank's official metaverse, which records all golf conversations
| for compliance review, rather than on a physical golf course."
| The golf course is an unofficial channel! No business allowed!
| voakbasda wrote:
| I'd be completely in favor of this... if first the
| politicians, lawmakers, and bureaucrats were all held to the
| same standard.
| dragonwriter wrote:
| The combination of open records and open meetings laws in
| many state governments largely _do_ hold state and local
| officials to rules like this.
| voakbasda wrote:
| True, but the practical reality parallels the regulations
| mentioned above: the rules are not being enforced fully,
| and there do not appear to be enough real-world
| consequences to prevent individuals from breaking them.
| KMag wrote:
| Eventually, Big Brother turns on everyone.
| donalhunt wrote:
| It's a bit weird that this is even a thing given Google's
| ecosystem supports retention and litigation holds - technology
| acquired through buying Postini iirc.
| coliveira wrote:
| I think it is completely absurd that the government let companies
| get away with the policy of deleting messages. Any public and/or
| large enough company should be required to keep all
| communications, internal and external, for at least a decade.
| These companies are required to respond to the public. In todays
| world the only reason for them not to keep records is to evade
| responsibility for whatever they're doing wrong.
| AlphaCharlie wrote:
| It's true, it was well known internally that internal chat that
| are sensitive would be auto deleted.
| jvolkman wrote:
| Presumably if that hadn't been known, sensitive topics would've
| been discussed over Meet or in a physical room instead and the
| data still wouldn't be available to the DOJ.
| jefftk wrote:
| What's depressingly hilarious is that employees generally hated
| this behavior, because useful information would often disappear
| before you were done with it. For example, someone answers your
| question on Friday after you've left and when you check messages
| on Monday it's gone. Or you'd want to refer to something from a
| conversation a few days ago and it'd been deleted as well.
| hdhejenennd wrote:
| One of many completely dysfunctional things I hated in my short
| stint there not long ago. Just an incredibly employee-hostile
| setting for doing remote work.
| raldi wrote:
| I was working there when this happened, and I definitely
| remember thinking, "Well, no point in writing a detailed email
| full of information that will be useful in the future, because
| in 30 days it'll be gone anyway."
|
| Even more frustrating was finding myself in a situation where I
| remembered an old email that would be enormously helpful,
| either because of the information in it, or because I could
| reuse the bulk of something I had invested a lot of effort into
| writing, and knowing that this work was gone forever.
| crazygringo wrote:
| And even e-mail has the problem when it's deleted after two
| years according to retention policy.
|
| You have a contact you remember who emailed you three years
| about a thing... you'll never find them again.
|
| I was genuinely shocked to discover how often I needed an email
| from over two years ago to check on something or someone. Oh
| well.
| cowmoo728 wrote:
| It's very annoying. I regularly get a technical question from
| someone and answer it in a detailed back and forth where we
| debug. Then I realize history was off, turn history on, and
| then copy paste hundreds of lines of conversation back into the
| same chat window so it doesn't disappear in 24 hours.
| shadowgovt wrote:
| I don't have a horse in this race (anymore), but in the
| abstract I would _love_ if government aligned incentives so
| that it was more painful for companies to toss records that
| should have been retained than to retain records that are
| damaging to them in hindsight, which they were legally allowed
| at some point to toss.
|
| For precisely the reason you indicated.
| ROTMetro wrote:
| Then companies will just get rid of chat tools because
| informal discussions can be turned to fit any narrative.
|
| 'wow, Bob picked the worst possible way to solve xyz'
| negligence, knowingly having incompetent developers. You
| yourself said Bob's solutions were the worst possible.
|
| 'looking back, we should have implemented XYZ differently but
| we are stuck with that implementation now' can be about
| something harmless but blown so out of proportion in court.
| wpietri wrote:
| Companies can't get rid of chat tools anymore than previous
| bureaucracies could stop using paper. Operating at current
| scale requires digital communication. If they tried to cut
| that off, they'd discover that things stopped working.
| Twitter gave us an example of that just this week:
| https://www.platformer.news/p/new-cracks-emerge-in-elon-
| musk...
| bluGill wrote:
| True, but saving paper was a lot more work. Most paper
| memos got read and put into the trash as you didn't have
| space to save it. Even if there wasn't a review
| everything saved policy you still did just because it was
| sitting in your office until you got rid of it. Of course
| when something did have to be saved you gave it to your
| secretary to file and wouldn't review it latter to see if
| it should go, but if it stayed in your office it didn't
| last much longer than you needed it.
| ahh wrote:
| God, do I love working in the finance industry some times.
| LatteLazy wrote:
| Why would good in mid 2019 know it had to save chat data for use
| in a lawsuit not filed for over another year? And why would such
| a lawsuit require saving all chats between everyone? Should
| google also have started video recording all in person meetings
| or stopped throwing out any trash in case there was something in
| those bins too?
| 2OEH8eoCRo0 wrote:
| > Google's duty to preserve documents began when it reasonably
| anticipated litigation. According to the company's privilege
| logs, beginning as early as May 2019, Google began withholding
| materials "compiled in connection with ongoing DOJ
| investigation." The United States then issued its first Civil
| Investigative Demand (CID) to Google on August 30, 2019, and
| issued two subsequent CIDs in October 2019.
|
| If I'm reading this right- they allege that Google knew because
| they had already began withholding some materials and were
| issued 3 CIDs.
| 1letterunixname wrote:
| Want to wipe your work computer and put a new version of Linux on
| it? First, check your legal hold status.
|
| Want to delete any kind of employee data? First, filter out users
| by legal hold status.
| briffle wrote:
| I get the point you are trying to make, but usually the holding
| is on the servers. Most mail and communications servers allow
| for this.. (ie, don't actually delete any emails that mention
| the company ACME because of a legal hold number 123434).
|
| And I (A sysadmin) have literally been tasked with overnighting
| employee laptops to foresnic groups, and issuing them a brand
| new one. (typically, they just image the drives, and send them
| back, we would wipe the system, and put it back in our 'spare
| pool'.)
| kridsdale1 wrote:
| Before I quit Meta, we were actually told we had to do this.
| We could not delete files from SOURCE CODE anymore.
| 1letterunixname wrote:
| Which role / pillar organization?
| 1letterunixname wrote:
| Unfortunately, your experience differs in ways that don't
| apply categorically to the points I made from my perspective
| and experience.
|
| We have hooks into the fleet of endpoints (corporate with
| some 10k BYODs), servers, and various vendor apps. This is
| realized by data legal provides reduced to a boolean per user
| because there's no need to convey excess detail. When an
| employee visits Help Desk, they are limited by the possible
| actions HD can take if they are under a legal hold. The same
| applies to certain OS upgrades, whether HD or DIY. It would
| be impossible to manage VDI or "throwaway" servers at scale
| without a centralized legal hold inquiry API.
|
| Google has (or had) a far greater corporate tech staff /
| employee ratio in the industry than similar companies, so
| there's no excuse for them not to have a comprehensive legal
| hold program throughout their technical organization.
| 1vuio0pswjnm7 wrote:
| Funny how Google can ignore the privacy of internet users's
| conversations but when it comes to their own conversations, they
| do not want to share those with the Government. According to the
| Government's memo supporting sanctions, Google is deleting
| conversations within 24h despite being under litigation holds.
|
| https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.22...
|
| Former Google CEO Eric Schmidt appearing on CNBC once said "If
| you have something that you don't want anyone to know, maybe you
| shouldn't be doing it in the first place."
|
| If Google is not doing anything wrong, then why not give the
| Government what they are asking for and let justice prevail.
|
| Google surveils internet users' conversations without a subpoena,
| for whatever purpose it chooses, for profit. To Schmidt, and
| 130,000+ other people on Google's corporate welfare, that's OK.
| However when the Government subpoenas Google for Google's
| conversations, for the purpose of determining whether Google is
| complying with the law, Google resists.
| bredren wrote:
| In Schmidt's first tv interview on Bitcoin he also said concern
| over unchecked criminality was overblown.
|
| He suggested that criminals make enough opsec mistakes that
| would be recorded that the government need not be worried.
| wmeredith wrote:
| "Rules for thee, but not for me" may _actually_ be the oldest
| trick in the book. Google 's hypocrisy here is disappointing,
| but not surprising in the least.
| kevmo wrote:
| Nothing is going to happen until we start imprisoning executives
| for this sort of flagrant illegal behavior. Fines and settlements
| mean nothing.
|
| People like Sundar Pichai, Eric Schmidt, etc need to be labeled
| as anti-social criminals & face the justice system.
| 2OEH8eoCRo0 wrote:
| https://www.courtlistener.com/docket/18552824/512/1/united-s...
|
| > The Federal Rules of Civil Procedure required Google to suspend
| its auto-delete practices in mid-2019, when the company
| reasonably anticipated this litigation. Google did not. Instead,
| as described above, Google abdicated its burden to individual
| custodians to preserve potentially relevant chats. Few, if any,
| document custodians did so. That is, few custodians, if any,
| manually changed, on a chat-by-chat basis, the history default
| from off to on. This means that for nearly four years, Google
| systematically destroyed an entire category of written
| communications every 24 hours.
|
| > All this time, Google falsely told the United States that
| Google had "put a legal hold in place" that "suspends auto-
| deletion."
|
| zoinks
| shadowgovt wrote:
| It sounds like there were disagreements between Google's
| lawyers and the DOJ lawyers on the scope of the hold and what
| constitutes "reasonable."
| [deleted]
| IncRnd wrote:
| Don't change the goalposts. It's not about collectively
| agreeing on what is reasonable.
|
| From the article: "Federal rules for litigation required
| Google to suspend deleting chats in mid-2019, when Google
| would have anticipated the antitrust lawsuit, the government
| said. But Google continued using "off the record chats" even
| after the lawsuit was filed, the DOJ's attorneys wrote."
| dragonwriter wrote:
| The consequences of being found to have destroyed evidence is
| one of the reasons why organizations generally treat
| litigation / potential litigation holds broadly. (Also,
| unless you know there is no possible way something could be
| beneficial, you never know what, touching on the broad issue
| of litigation, you might actually need yourself, e.g., to
| rebut an argument from the other side.)
| Zircom wrote:
| From what I'm seeing they're seeking monetary fines against
| Google for this, and at their scale that's hardly a
| deterrent. It always works out to be a fraction of what
| they'd actually have to pay if they hadn't pulled whatever
| bullshit got them fined, and in the end won't impact them
| or their bottom line in the slightest. Until the fines are
| high enough to actually deter them, or they start pressing
| criminal charges for shit like this, nothing gonna change
| with these huge megacorps.
| dragonwriter wrote:
| > From what I'm seeing they're seeking monetary fines
| against Google for this
|
| This is false. They are seeking a finding that Google
| destroyed evidence, and a hearing to assess sanctions,
| and an order for Google to make additional evidence
| available before the hearing. [0]
|
| While fines might be part of the sanctions, a very common
| sanction for destruction of evidence is adverse inference
| jury instructions in the litigation the evidence was
| relevant to.
|
| [0] actual motion: https://storage.courtlistener.com/reca
| p/gov.uscourts.dcd.223...
| fshbbdssbbgdd wrote:
| > It always works out to be a fraction of what they'd
| actually have to pay if they hadn't pulled whatever
| bullshit got them fined
|
| An oft-repeated argument, but usually not backed by any
| evidence or math.
| vagabund wrote:
| Somebody at Google made the conscious decision that enacting
| this intentionally defective policy -- in doing so, attempting
| to foist liability for data custody upon individual employees
| -- and fighting the inevitable objections to it was a
| preferable course of action to actually preventing their
| employees from discussing anything that might be used against
| them in the suit. It's clever, but it doesn't reflect fondly on
| Google's underlying antitrust behavior, and I'd be pissed as an
| employee.
| freejazz wrote:
| I don't think they were trying to shift liability, I think
| they were trying to make sure all the data was deleted,
| without themselves having to hit delete. It's their counsel's
| culpability that is being protected, i.e. the difference
| between being negligent or willful.
| IncRnd wrote:
| From the article, "The DOJ said in a court filing Thursday
| that Google trained employees on the benefits of using "off
| the record chats."
|
| They were trying to avoid liability not transfer it.
| gmd63 wrote:
| When are regulators and enforcers going to wise up to this
| "clever" game of disguising malicious behavior as
| negligence? I've seen so many people strategically play
| dumb that at this point I don't believe whether or not a
| violation was accidental should have any weight on the
| punishment.
|
| Nature doesn't care whether our immune systems accidentally
| slack off, or whether we accidentally didn't protect our
| cities from a flood. Why would we provide an incentive
| structure for people to act like they are stupid?
| nostrademons wrote:
| It's very difficult to do this without introducing
| ThoughtCrime. The set of things that you _could
| potentially have thought about doing_ is infinite. There
| 's almost inevitably something in hindsight that you
| _could have done_ to get the results that the prosecutor
| /plaintiff desired. The problem is that ordinary people
| without the benefit of hindsight fail to notice these
| options all the time, for all sorts of mundane reasons.
| If you criminalize negligence you're going to sweep an
| awful lot of innocent people up in your dragnet.
|
| Strategic stupidity is indistinguishable, from the
| outside, from actual stupidity. I'd bet the latter is
| significantly more common. Hanlon's Razor: "Never
| attribute to malice that which is adequately explained by
| stupidity."
| rapind wrote:
| I think people being negligent legitimately happens quite
| a bit. I agree though that when it comes to corporate
| behaviour, negligence should just be treated as willful
| intent.
| sircastor wrote:
| I user to work for an Automotive OEM, and I would get these
| emails with some frequency (sent to the whole company) that
| would instruct us to make sure we're not deleting or clearing
| materials related to some thing. I don't think the whole time I
| worked there any of it related to anything I was working on. We
| eventually had a training with counsel about keeping materials
| and why we didn't even want the appearance of anything
| suspicious.
| hackernewds wrote:
| > That is, few custodians, if any, manually changed, on a chat-
| by-chat basis, the history default from off to on.
|
| they cannot reasonably expect every day employees with no
| stakes or info into the confidential dealings would care about
| this. Al Alongside Google wouldn't care about them not caring.
| FireBeyond wrote:
| Very much so. Leaving aside some of the other points made on
| this, there's also a "eh, it's obviously not -that- important
| if it's not being enforced by policy/admin..."
| voisin wrote:
| The company has the obligation and the liability if the
| obligation isn't met. They should have enacted a system to
| ensure their obligations were met. It's like saying "we knew
| we owed taxes but the employees responsible for remitting the
| taxes just didn't. Oopsies"
| 1letterunixname wrote:
| Yep. Probably as a field in employee records API, DBMS,
| and/or business rules processor as a synthetic attribute
| called "legal_hold" to combine requirements of all legal
| cases and jurisdictions.
|
| Every system and process that could potentially delete data
| needs to check "legal_hold".
|
| One of many fun feature requirements of enterprise software
| that aren't necessarily needed at smaller scales.
| amluto wrote:
| There's a big company called Google that, among other
| things, sells enterprise services, and they have a list
| of their apps that support litigation holds:
|
| https://support.google.com/vault/answer/6127699?hl=en
|
| And lo and behold, Chat supports it.
|
| edit: as pointed out elsewhere, there is some
| documentation that "off-the-record" chats are exempt:
|
| https://support.google.com/vault/answer/7664657
|
| That seems odd to me. Off-the-record is essentially a
| retention rule set on a per-chat basis. A hold should
| override a retention policy.
| 1letterunixname wrote:
| If we used it, we would never allow OTR.
|
| Heck, we don't even allow chats in third party apps like
| Zoom.
| DenisM wrote:
| Of course you meant a recount, not a Boolean?
| ss108 wrote:
| It doesn't matter. "Every day employees" are not the ones who
| needed to do this.
| ROTMetro wrote:
| They can be if the policy was that individual employees
| needed to self enforce retention on XYZ topics and
| employees were provided training to that effect. The Feds
| can not say a company must retain all records going
| forward, only that it make reasonable effort to retain
| relevant records and training employees to place items
| going forward in some sort of vault historically qualifies,
| especially when this training/retention has been vetted as
| being acceptable by corporate/insurance company legal
| teams. There is no mens rea element to having system
| constraints due to an existing IT infrastructure budget and
| the Feds don't get to just blow that budget up because
| 'they have concerns' or else they could use 'concerns' as a
| weapon to destroy companies.
| bluGill wrote:
| Sure, but they need to ensure that their have training
| and audits/enforcement to ensure the policy works for
| everyone who isn't intentionally trying to cheat. If it
| was 1/a few employee(s) who didn't do the right thing,
| then that employee should probably go to prison for
| breaking the law. That is was most who didn't do the
| right thing suggests that the right thing was too hard to
| do, and it goes back to the company. (even if it is one
| employee they can make the case that they didn't
| understand the policy for some reason, which might put
| liability back on the company, but this is case by case)
| [deleted]
| [deleted]
| donalhunt wrote:
| Doesn't work like that. Done centrally.
|
| See https://support.google.com/vault/answer/7664657
|
| The issue seems to be around use of "off the record" chat
| settings which are not covered by Vault (somewhat
| surprisingly for this audience; quite desirably for the
| target audience it would seem).
| amluto wrote:
| I'm a bit surprised no major enterprise customer has
| demanded that Google fix that.
| Supermancho wrote:
| > Google did not. Instead, as described above, Google abdicated
| its burden to individual custodians to preserve potentially
| relevant chats.
|
| Google didn't do it, it was those other individuals who defied
| the court order. Uh huh.
| etothepii wrote:
| If true even a one or two day prison sentence for 5 or 6
| Googlers would make sure this _never_ happened again.
|
| One assumes that if anyone had asked legal they would have
| been told they must switch off auto-delete. Lawyers aren't
| stupid they value their licence far more than their current
| job. I am highly doubtful there would be any written advice
| that said anything other than, if in doubt save.
| fencepost wrote:
| _even a one or two day prison sentence for 5 or 6 Googlers
| would make sure this never happened again._
|
| Eh, utterly impractical but I still think there should be a
| way to "jail" corporations. Easy - "Your offices are closed
| for the duration of the sentence. Your systems are shut
| down for the duration. Automatic payments set up in advance
| can continue as long as there are funds in your bank
| accounts, but your staff will not be monitoring them. You
| can appoint someone external to the organization to take
| care of some obligations."
|
| Survivable as a business for short enough sentences
| (effectively comparable to a devastating ransomware
| attack), but mighty painful and anyone involved will
| absolutely feel the wrath of ownership/shareholders.
| humanizersequel wrote:
| This would be disproportionately used as a tool against
| extremely small corporations without the budget to fight
| the "sentence" or weather out even a short shutdown.
| coliveira wrote:
| I believe the best penalty for a big company is really to
| be broken up. It doesn't penalize the people working on
| the company or its clients, since the business continue,
| but it does penalize the management and board of the
| company for their misbehavior.
| bluGill wrote:
| I would say: fire the C level executives, with no
| severance. At the same time halt all stock trading.
|
| Have the top officers who remain put their division on
| the auction block to the highest bidder, on a sold twice
| system, best deal wins. That is the company as a whole is
| sold, in parallel all divisions are sold separately: then
| add up the different bids, and whoever paid more: whole
| company vs all the individual departments separate wins.
| Although there are conflicts of interests, I think the
| officers who remain should both be allowed to bid, and
| also consult to other bidders: but the consults must be
| in public as are their bids.
|
| Shareholders are treated as if the company is bankrupt:
| government fines, remaining employees, banks, and then
| the lawyers all get paid. If there is money left over
| shareholders get it.
| czx4f4bd wrote:
| That's not what that means. That's a pre-emptive argument in
| case Google tries to say that individual employees were
| responsible for preserving evidence.
|
| > Google may argue that it relied on individual custodians to
| manually preserve history-off chats. But that argument should
| be rejected for two reasons.
|
| > First, it is and was Google's obligation to suspend auto-
| deletion policies; it is no defense to suggest that
| individual custodians--Google employees--owned that
| obligation. Samsung, 881 F. Supp. 2d at 1137 ("[I]t generally
| is recognized that when a company or organization has a
| document retention policy, it is obligated to suspend that
| policy . . . .") (cleaned up) (italics added). Google
| designed the chat systems and document preservation policies
| at issue here.
|
| > And Google elected to set the default to history off for
| many chats. Indeed, Google maintained the "off the record"
| default despite employee complaints that the default caused
| them to lose important conversations.19
|
| > Second, Google cannot escape sanctions by shifting the
| blame to its custodians. For spoliation purposes, destruction
| of evidence by Google's employees is attributable to the
| company. See, e.g., E.I. du Pont de Nemours & Co. v. Kolon
| Indus., Inc., 803 F. Supp. 2d 469, 506-07 (E.D. Va. 2011) ("A
| party may be held responsible for the spoliation of relevant
| evidence done by its agents."). Courts commonly sanction
| corporate litigants for the spoliation of their employees and
| executives. See, e.g., Borum, 332 F.R.D. at 42 (emails
| deleted by employee). Accordingly, Google violated its duty
| to preserve potentially relevant evidence on a daily basis
| from May 2019 through the present.
| irrational wrote:
| Individual custodians just means employees, right? What
| incentive was there for employees to do this? I know that if I
| was told to do that, I would ignore it because I have better
| things to do than fiddle with settings. The only way I would do
| it is if they said I'd be fired if I didn't do it or they
| increased my salary and decreased my other responsibilities.
| jonstewart wrote:
| Yes, so when you get sent a "legal hold" notice, and you
| click on some kind of acceptance, you are basically
| acknowledging that you'll get fired if you don't preserve the
| data. That's how this works. The incentive to compliance is
| that you don't get fired by your general counsel.
| Shakahs wrote:
| I think "custodians" in this case means the administrators of
| the chat system. It was within their power to preserve this
| data, and they did not do so.
| Name_Chawps wrote:
| This is particularly funny because one way Google scams people
| to get them to buy more storage space is by moving deleted
| drive/Gmail items to the Drive Trash instead of deleting them.
| So when you try to clear space by deleting emails etc., it
| doesn't seem to help.
|
| Furthermore, even if you clear your Trash, it can take hours to
| take effect (for Some Reason), making it seem like you need to
| just give up and buy more storage.
|
| Apparently Google execs don't have the same problems deleting
| their own files.
| briffle wrote:
| My Gmail Trash folder auto deletes after 30 days. I have
| never made that as a change, its a default.
| alar44 wrote:
| [dead]
| 0cf8612b2e1e wrote:
| Hard delete without recourse is a horrible user experience
| for most.
| jvolkman wrote:
| When I click on trash it says "Items in trash are deleted
| forever after 30 days", so I don't really understand this
| complaint. Trash is a feature that most users have come to
| expect in file management systems.
|
| Also, "turn off history" - which seems to be what this
| complaint is about - is just a public feature of the Chat app
| built into gmail.
| doubleg72 wrote:
| Exactly.. But the funny thing is as an IT admin at
| hospital, I have seen people who literally were saving mail
| in their trash folder in hopes to "archive" then got mad
| when we did some house keeping in Exchange.
| bqmjjx0kac wrote:
| Hyrum's law strikes again! Perhaps users wouldn't have
| been surprised if the deletion policy had been applied
| consistently.
| Name_Chawps wrote:
| Yeah, but most non-technical people see that their gmail is
| full, try deleting a bunch of emails, see that it didn't
| help, and then have to buy more space. They're not aware
| there's a trash, they perhaps don't even use Drive at all.
| They just know that what they're doing isn't working.
| shadowgovt wrote:
| Apples to oranges.
|
| (... and the reason Google does Drive Trash is that
| destroying user data is a _much_ worse user experience than
| letting the delete be lazy, even when the user has given
| signal they want the data destroyed. There 's decades of UX
| research to back that assertion; it's why "trash cans" were
| created in the first place as a UI abstraction.
|
| Internal to Google, if you want to blow your whole leg off
| and disrupt your career by deleting some critical info,
| that's on you. Outside Google, they try to provide a better
| experience for their users).
| photochemsyn wrote:
| When you have a corporate slogan that says "Don't Be Evil" it
| means there's a big internal desire to start cackling alone at
| night in contemplation of your own evil (Frank Herbert quote,
| there). Looks like they lost that struggle against temptation.
| raincom wrote:
| This is done with "off the record conversations" between senior
| execs and the legal counsel". This is how big boys operate!
| crazysim wrote:
| Turning off dogfood?
| https://workspace.google.com/products/vault/
| meltyness wrote:
| Google since 2012 still the kid playing soccer that's been
| told to run around and kick people in the shins except it's
| 18 now and it's not cute anymore, and now it's kicked a ref.
|
| They are dogfooding, which is why trying to adopt their
| products has been a case study in getting screwed.
|
| - GCal spam anyone, who hasn't been coming to unwanted
| meetings?
|
| - How about 4-5 redundant messaging services?
| jawadch93 wrote:
| [dead]
| wunderland wrote:
| This was a shrewd move on Google's part because certainly the
| cost of destroying evidence will be significantly lower than any
| smoking gun that might have been said over chat.
| jonas21 wrote:
| Is the DoJ's argument that if you anticipate being sued in the
| future, you're not allowed to use private messaging at all?
| tantalor wrote:
| I think the argument is, if you are on a lit hold and
| preserving some of your written communications, then you have
| to preserve _all_ of them. You can 't decide to shield some of
| them. That makes sense, I guess, but why would that not apply
| to verbal communications as well?
| cma wrote:
| > why would that not apply to verbal communications as well?
|
| Corporate body cams. They wanted it first for fast food
| register workers but maybe it comes to white collar jobs
| first (aside from police). It is already sort of there with
| work from home surveillance-ware.
| tantalor wrote:
| For that matter, the assistants built into phones and smart
| home devices are always listening for their wake word, I
| assume they have a little buffer of recorded sound which
| they are constantly erasing. Is that spoliation?
| bluGill wrote:
| The policy is if you are doing something illegal than you must
| keep all records of it. It is also that once your are sued you
| have to immediately stop all efforts to delete related
| conversations. I know my company often has to go in and turn
| off all automated deletes for a short time (a couple days?)
| while the lawyers figure out what keywords and people matter,
| then just keywords and people are locked down. Then more
| individual review of what remains to decide what is relevant,
| where if there is any doubt at all it is relevant and isn't
| deleted. Cases/investigations can last for years.
| cldellow wrote:
| I think the argument is that if:
|
| > All this time, Google falsely told the United States that
| Google had "put a legal hold in place" that "suspends auto-
| deletion."
|
| ...then you better not be auto-deleting things for the next 3
| years.
|
| The lawsuit details that the language Google used when telling
| the DOJ what they were protecting. Hangouts is included in that
| language.
|
| Google also revised their retention policies for chats not
| once, but _twice_ during the litigation, but somehow no-one
| thought that maybe deleting the chats should be mentioned to
| the US government.
| jeffbee wrote:
| > Hangouts is included in that language.
|
| Well it would be funny if their counterargument is that
| "Hangouts" was a specific thing and the OTR chats were
| actually on one of that company's 600 other chat products.
| dd36 wrote:
| Now we know why they phase out products so quickly!
| Plausible deniability!
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