[HN Gopher] Google CEO Sundar Pichai deletes chats in violation ...
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Google CEO Sundar Pichai deletes chats in violation of retention
obligations
Author : connor11528
Score : 133 points
Date : 2023-03-19 22:04 UTC (55 minutes ago)
(HTM) web link (www.fosspatents.com)
(TXT) w3m dump (www.fosspatents.com)
| [deleted]
| revelio wrote:
| This headline is very misleading. He's not being accused of
| deleting them. He is being accused of not creating the chat
| records in the first place. Legally these are different things.
| There's no obligation to generate as much evidence as possible
| just in case one day you get sued by someone who might want it.
| Lit holds are just that, _holds_ , you have to hold records you
| already have and not destroy them. The assumption in the system
| is that institutions generate records as a natural matter of
| course, and that's what the plaintiffs are being allowed to get
| access to. This complaint seems very likely to fail as a result,
| short of some sudden change in the standard understanding of
| record retention laws.
| dragonwriter wrote:
| > He's not being accused of deleting them. He is being accused
| of not creating the chat records in the first place.
|
| Online chats exist as digital data _ab initio_ , the issue is
| _not_ creation (which had to happen for there to be a chat) but
| retention. The fact that the UI of a system may present things
| suggesting that "creating" a record is a separate act does not
| make it so.
| xiphias2 wrote:
| I'm not sure which side I'm on actually. Do we really want to be
| able to give the governments the right to restrict our ability to
| not record things if they are done in chat (as opposed to
| encrypted phone call)?
|
| I know that Sundar should be the ,,bad guy'' here, but I think
| this is a very different case from deleting past data
| selectively.
| user3939382 wrote:
| If you destroy evidence civil procedure allows the court to
| consider the evidence to have been as detrimental as possible to
| your case. It often means you automatically lose.
|
| That's for us plebes anyway, how that translates to these
| megacorps the "justice" system is there to serve I'm not sure.
| [deleted]
| silentsea90 wrote:
| Google inconveniences the entire company by defaulting to 24hrs
| chat retention so they can avoid sharing sensitive info in
| litigation (frustrating countless employees who would have needed
| to refer to the chat message from yesterday about simple CLI
| commands/instructions etc) while getting hit by a lawsuit for
| intentionally purging history. Classic Google.
| andy_ppp wrote:
| You know the corporate bureaucracy has taken over completely
| there then. I'd be surprised if they play a big role in the
| coming AI wars with people making decisions like this.
| unstatusthequo wrote:
| This is not limited to Google. It's a tactic used to frustrate
| the overly excitable Plaintiff bar who enjoys asking for
| overbroad discovery of records. It has been so pervasive that
| companies have designed record retention policies more limited
| than even they want because it cost them so much to go
| preserve, collect, process, review, and produce in litigation.
| lozenge wrote:
| Why do you say they enjoy it and it's overbroad? Any
| discovery can be disputed in front of a judge anyway.
| filoleg wrote:
| > _frustrating countless employees who would have needed to
| refer to the chat message from yesterday about simple CLI
| commands /instructions etc_
|
| The 24-hour auto-deletion is just a default that can be easily
| disabled, which is what you would do in this scenario. After
| you disable it, none of the messages in that chat will get
| auto-deleted going forward.
|
| That setting isn't buried deep in the menus either. You just
| right-click the chat for which you want to turn on history, and
| then left-click the "turn on chat history" button. You do it
| once for a given chat, and you never have to revisit it again,
| it will stay turned on until you intentionally turn it off.
|
| It helps that when you open a chat with a new chat
| group/person, it displays in very large text in the center
| "Turn on chat history to prevent messages from being auto-
| deleted in 24 hours", so it is difficult to forget to do so
| either.
| 2OEH8eoCRo0 wrote:
| What about the employees seemingly being told to make the
| chat private and the chat abruptly ending?
| RjQoLCOSwiIKfpm wrote:
| The 24h limit is quite the contrast to what happens when you,
| as a customer, use their products:
|
| Around every corner there is a dialog which asks for permission
| to store extremely personal data, such as your GPS location or
| browsing history, indefinitely.
|
| See how much Google values its users safety vs. its own
| safety...
| CydeWeys wrote:
| If you click the button to delete that data, though, it is
| actually deleted.
| revelio wrote:
| You seem to be assuming Google will lose. Seems more likely
| that they will win and the article author is wrong when he says
|
| "From the outside it appears very, very difficult to imagine
| that Google will get away with what it's done."
|
| There is no law compelling you to write down every word,
| thought or discussion that takes place in the office. Google
| was subject to litigation holds. That means you can't _destroy_
| evidence if it might be relevant, it doesn 't imply some sort
| of unlimited obligation to create endless documents containing
| every word uttered by every employee 24/7. How would that even
| work? The author's inability to imagine Google's lawyers
| successfully making this argument reflects poorly on their
| imaginative skills, not Google.
| bootwoot wrote:
| I was taking the referenced chat conversation in the post to
| have occurred _after_ the legal hold was put in place. It
| seems far more devious to explicitly avoid records in places
| that would otherwise have records when a court has already
| said "you need to have records". I'm not a lawyer and don't
| know the context that well, though, so this may be incorrect
| understanding on my part.
| revelio wrote:
| Whether it seems devious or not to you, has no bearing on
| whether it's legal. The court does not say "you need to
| create records on this topic going forward". It says "you
| need to retain records you already created on this topic".
|
| One thing that may confuse people is that some industries
| like finance _are_ subject to regulations that force them
| to create records of employee conversations even if
| normally they wouldn 't and even if there's no pending
| lawsuit. But those are industry specific rules governing
| specific activities like trading, not a general legal
| concept that'd have applied to Google.
| 2OEH8eoCRo0 wrote:
| The records existed and were then deleted.
| silentsea90 wrote:
| I don't make such assumptions and have no understanding of
| what's right or wrong legally. I speak as a xoogler who hated
| Chat (featurewise) + retention policy and found it to
| exacerbate Google's sluggishness in shipping.
| otterley wrote:
| Why do you think they are more likely to win? Why do you
| think your opinion is more informed than that of an
| experienced legal analyst? What are your bona fides?
| cjensen wrote:
| You seem to be arguing against something no one has
| suggested. No one has suggested they have to document every
| conversation or thought. However, if the conversation is
| chat/text/email then it is considered a written record that
| may not be destroyed. So the rule is "do not destroy records
| you have create" not "record everything."
| hn_throwaway_99 wrote:
| Can a lawyer comment on how retention laws have evolved in the
| past 20-25 years? Before email, hardly any informal conversation
| was recorded - it was done in person or on the phone. Now,
| though, so much of our conversations are done in recorded digital
| formats. But surely it's not illegal to say something like "Let's
| chat about this in person", even if you _are_ under some sort of
| record retention decree, correct?
|
| I've just seen some law cases over the past 10 years or so where
| I think it's very easy to take informal conversation out of
| context. For a person like the CEO of Google, where tons of folks
| would be _deliberately_ looking to frame any utterance in the
| worst possible light, I can understand wanting separate channels
| for informal discussion vs. official decisions /communications.
| ghaff wrote:
| We have these weird evolving conventions.
|
| We tend to increasingly use chat rather than email for
| contacting individuals or small groups about something. I guess
| I assume it's still all archived.
|
| On the other hand, we don't really call people anymore.
| Certainly out of the blue. Much less talk in person.
|
| But (I guess) if you want to have an off the record
| conversation you really need to have a call.
| gman83 wrote:
| Why are calls considered off the record? Wouldn't it be
| trivial for those to be logged too?
| paxys wrote:
| There are _very_ strict federal and state laws around who
| can or cannot record phone calls and how admissible they
| are in court.
| bentcorner wrote:
| New chat app idea: You "text" a locally running TTS model
| that uses your phone's modem to call the recipient and
| talks to the recpient, and replies (from another TTS
| model on the other side) are run through STT model and
| appear as text replies.
| loeg wrote:
| Completely orthogonal to a business's employees' internal
| communication about that business.
| ghaff wrote:
| The fact that calls occurred is sometimes logged in
| government. They're not typically recorded in general.
| (IANAL) Of course, if there were such a requirement, people
| would simply go to the next level of non-loggability.
|
| Historically, written communications were recorded and had
| to be retained but other forms of communications did not.
| One of the things that's happened is relatively little of
| my professional communications is not recorded in some form
| these days.
| staticautomatic wrote:
| They're considered off the record because the content of
| the call generally becomes hearsay inadmissible to prove
| the truth of what was said.
| cldellow wrote:
| It's kind of the swiss cheese model. People will slip up
| --it's very hard to conduct business in entirely off-the-
| record chats.
|
| I like the recent example of a junior BP trader. He had
| an opportunity to meet a vice president of the company,
| and was trying to impress the VP with what the trader's
| team was doing. The VP responded along the lines of
| "Gosh, it's funny, what you're describing almost sounds
| like market manipulation, but it can't be, because I'm
| sure we wouldn't be doing that."
|
| The junior BP trader then immediately called the senior
| trader on their office phone. All calls to the office
| phone are recorded. Throughout the call, the junior
| trader is persistently trying to ask if what they're
| doing is market manipulation, and the senior trader keeps
| cutting him off before he can complete a sentence.
|
| Then the penny drops, the junior trader says, "Hey, I
| just remembered, I need to run," hangs up, and
| immediately calls the senior trader on his (unrecorded)
| cell phone.
|
| _That_ call wasn't recorded, and when asked in court,
| neither the junior trader nor the senior trader could
| recall what they discussed.
|
| The judge didn't seem to believe them. BP had to pay a
| bunch of $, and the junior trader now works somewhere
| else. :)
| ghaff wrote:
| And I don't even have a business phone at this point. Nor
| does pretty much anyone I talk to. So any conversation
| (and a lot of texts) is over personal devices.
|
| Perhaps it would be different at a financial firm.
| Jenk wrote:
| Not a lawyer, but have been in orgs that need to comply with
| these regs: phone calls are recorded, and meeting minutes are
| recorded - sometimes with full transcriptions. Anyone "caught"
| having official conversations in unofficial meetings gets a
| frowning.
|
| Yes, there was (and still is) always going to be "off the
| books" conversations. In the UK we're seeing news of our
| politicians using WhatsApp as a back-channel for comms they
| don't want appearing in official records. Business is
| undoubtedly using such technology too.
| loeg wrote:
| Matt Levine has talked a few times about the wild scope
| increase of records retention in finance over the past century
| or so in Money Stuff. Not exactly the same as a legal hold, but
| analogous for similar reasons (recording everything has become
| cheaper).
|
| > We have talked before about the SEC's probe into how the
| employees of big banks discussed their work in text messages
| and chat apps like WhatsApp on their personal cell phones. The
| SEC has collected big fines from the biggest banks because, it
| has said, these chats violated the SEC's recordkeeping
| requirements.
|
| ...
|
| > From the perspective of the banks, I have argued, this is a
| novel expansion of the SEC's authority. When the SEC created
| its rules on recordkeeping, it required banks to retain copies
| of their "inter-office memoranda," but it was 1948 and those
| memoranda were produced with carbon paper; they were formal
| business records memorializing serious policies. In the 2020s,
| WhatsApp chats are, in large part, substitutes not for formal
| memoranda but for talking to someone in person. When I was a
| banker, I have written, "There were some mornings when I sent
| more than 100 inter-office memoranda, though like 20 of them
| would be 'lol' or 'fml.'" In 1948, the SEC would not have
| dreamed of demanding a searchable archive of all of the
| informal chats held at a brokerage: That was not
| technologically feasible, and also did not seem to be the point
| of its rules. In 2022, it was feasible, and the SEC did demand
| it, and when the brokers were missing some chats they paid a
| billion dollars in fines.
|
| > ...
|
| > 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.
|
| https://www.bloomberg.com/opinion/articles/2023-02-02/the-se...
| fsckboy wrote:
| just so you understand what the basic rules are; as an
| individual you cannot be forced to provide testimony against
| yourself.
|
| But your written records are fair game as evidence, including
| your personal diary.* The right not to testify is really more
| about "so there's no incentive to torture you" more than it is
| a civilized notion that "we are gentlemen, let's have a level
| playing field, my secrets against yours". Then in addition to
| that, there are also document retention laws for documents that
| seem like they will be pertinent in the future, court orders
| during litigation that are even more restrictive, and
| corporations held to higher standards (there isn't generally
| going to be evidence of a person lying to himself, but
| corporations inducing employees to lie is more directly in the
| crosshairs)
|
| *from a quick search "Even if a diary doesn't contain relevant
| evidence, courts will usually allow the side requesting to see
| it to make that determination for themselves. Particularly in
| cases where a party is alleging physical or emotional injuries,
| diaries are rather helpful in understanding what a person has
| experienced due to their injury. If a party kept a diary before
| the injury occurred, it can also help to show the contrast
| between life prior to and after the injury."
| [deleted]
| orra wrote:
| Florian Mueller ("FOSSPatents") prominently shilled for Oracle,
| back during the Google v Oracle case days. That's when Oracle
| were trying to destroy the right to create an open source, clean
| room reimplementation of an API. He doesn't give a shit about
| FOSS.
|
| Do not trust.
| paxys wrote:
| Does an obligation to preserve electronic communication also mean
| that all communication has to be done electronically? Having
| sensitive conversations in person or on the phone -
| _specifically_ so that they aren 't preserved or leaked - is how
| most businesses (and governments and other institutions) operate.
| This is seen as conventional wisdom, not some nefarious plot.
| jonstewart wrote:
| No, there's no obligation.
|
| But not retaining records when under a legal hold can be very
| bad. The judge can impose sanctions/fines, and of course it can
| color the rest of the case and bias the jury against you.
| j45 wrote:
| Interesting q. Like there's an obligation to create electronic
| communication records.
|
| Would going for a coffee or walking meeting be in bad faith?
| AequitasOmnibus wrote:
| No, there's no obligation to memorialize everything in writing.
| But it's a two way street. If a conversation is important
| enough, the parties also have incentives to write it down (to
| avoid recanting or conveniently forgetting or misunderstanding
| important terms).
|
| In court, testimonial evidence is usually presented under oath,
| under penalty of perjury. If a company is subverting recording
| information by only discussing sensitive items in person, a
| good lawyer will put multiple witnesses on the stand, ask them
| all the same questions about the sensitive topic, then poke
| holes in the inconsistencies and see who cracks first on the
| witness stand. It might be hard to get someone to disclose the
| sensitive subject, but it's rather easy to catch someone in a
| lie or a cover up. That's usually good enough.
| comboy wrote:
| I have no idea about the subject, so can somebody explain to me
| why can two people at a company talk to each other without
| turning on any recording device but can't do that legally using
| text? That is if my understanding is correct.
| [deleted]
| maxerickson wrote:
| It's more or less inertia. At some point the legal situation
| for each practice was evaluated and established and here we
| are.
|
| Chats probably got rolled into rules established for email.
| furyofantares wrote:
| > Chats probably got rolled into rules established for email.
|
| And emails I think in turn got rolled into the rules
| established for "documents"?
| loeg wrote:
| Interoffice memoranda!
| loeg wrote:
| Lawyers, legislators, and courts are all old or old-fashioned
| people who use phones and in-person meetings a lot. So,
| conveniently, there is a special historical exemption for phone
| calls and in-person meetings.
| KKKKkkkk1 wrote:
| [flagged]
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