If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
I don't wish to facilitate corporate crime, and it's obvious that some of Google's anti-competitive behavior is unlawful. But, I don't see any realistic alternative to what Google is doing in the current legal environment.
> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication.
Wow. This is the opposite of how I feel. Mega-corporations should have their communications logged at a much higher level than a normal business. The things that have come out in court show how they manipulated their customers (advertisers). Regardless of how you feel about advertising a portion of those companies are small mom and pop shops trying to get by. If you have communications that can be used as evidence you're probably in the wrong.
> If you have communications that can be used as evidence you're probably in the wrong.
That does not match my second hand accounts of how the law and lawyers work at this level, at least in the USA. Lawyers, at least in part because it is there job, will scrutinize every communication for anything that has the slight chance to be interrupted in their cases favor regardless if that interpretation is truthful.
The system of law in the USA is adversarial, the Lawyer's job is to present the case in the best possible light not to find and present the truth. So if something taken out of context plays well for their case it will be used. That could include decades old communications that no one remembers happening on a tangental topic.
Much more than that, the legal system is just engaging in empire building here: Everything that is potentially relevant is subject to discovery, which increases billable hours…
And I assume approximately nobody in the legal sector has any interest in reducing these.
The collateral damage of the incentive structure created by this dynamic must be vast. Deleting everything by default as a (reasonable, at a micro-level!) leads to immense institutional knowledge loss.
> The collateral damage of the incentive structure created by this dynamic must be vast. Deleting everything by default as a (reasonable, at a micro-level!) leads to immense institutional knowledge loss.
Agree wholeheartedly, would be great if would could step off this path, but I have not heard of any efforts in that direction or groups that champion it.
Some of them are bound to if there is free market competition going on. Anyways, they are certainly not going to let 6 million documents get in the way of a big settlement.
> Exactly, the legal system's job is not necessarily finding the truth.
The system purpose is to try and find the truth, because that helps society function, but is imperfect. It is good enough, so far, to keep society functioning, though its imperfection allows injustice to happen.
> It's who can convince the judge/jury better even if they use nasty tactics.
The adversarial system[1] does result in nasty tactics emerging, and I think there is room there for improvement.
As Cardinal Richelieu famously said, “if you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”
This quote is frequently misinterpreted. It is not a comment on the mutability of language in general, it is a comment on centralized authoritarian power, which the Cardinal sought and wielded. Because he personally wielded so much power, he needed only the flimsiest excuse to condemn someone.
The U.S. legal system does not empower prosecutors in this way. They are free to provide quotes out of context, of course, but defense counsel are just as free to provide the missing context, and neither actually gets to make the decision to convict.
Don’t underestimate a federal prosecutor. Perhaps we need a new saying: “If you give me six lines from the US Code, I can get a plea bargain from the most honest of men.”
Imagine you work as an aerospace engineer. Imagine having to couch/overthink everything your say in communication so that it can't be taken out of context later. You literally have yearly training on how you have to communicate and in hugely impacts how people work because one dumb one off comment in email can financially end the company when an accident occurs.
and that's before you get to the fact that you have to defer how your IT systems work to the lawyers from the big overseas insurance company that covers your company/products. It's a major pain to get them to sign off on collaboration systems because they are such a discovery risk not because you are hidings, but because of how people communicate especially around issues. As far as discovery goes with aerospace, if your engineers anywhere acknowledged any problems, you are hit. How can you have a good product/continuous improvement when you can't acknowledge issues in writing?
I'd be surprised if you could find a single aerospace engineer with more than five years of experience who hadn't learned to couch everything they say in a way that made it difficult to misinterpret or change by taking out of context.
> You literally have yearly training on how you have to communicate and in hugely impacts how people work because one dumb one off comment in email can financially end the company when an accident occurs.
Wow, that's a very sad contrast to the blameless failure analysis culture of aviation accidents/incidents I've heard so much about (and actually see as a model for what we should strive for in software).
I can't even begin to imagine what kind of organizational chilling effect this must have on the way problems are discussed.
Corporations aren't real things. It's a group of people doing something. And people make mistakes.
One of the objectives of a corporation is to reduce liability. If open and honest communication means that they end up liable, then they just won't have open and honest communication. End result is dysfunctional and compartmentalized companies. And ultimately the cost for all of this will be borne by everyone.
One way to get open and honest communications from the corporation is if employees are personally liable. But then you wouldn't have open and honest communication from those employees.
> End result is dysfunctional and compartmentalized companies. And ultimately the cost for all of this will be borne by everyone.
Only once they get really big though. And maybe that's OK. While it increases the price of goods from that company, it lets smaller companies compete without the larger companies straight up ignoring the competition. Letting large players continue to dominate is worse for the cost experienced by everyone else.
I hugely agree on "corporations...[are] a group of people". I think it's an interesting model. But I would say that there's some essential liability that should be addressed or else the corporation has no reason to remain intact. Corporations that are trying to go below that standard will probably tend towards dysfunctional and/or corrupt behavior. Communication shapes organization, and if you tell me there isn't open and honest communication, I'm wondering what bad things they are doing or will do.
Depends on the specific circumstances, but the prosecutors are usually happy to focus on the company, because it has the money to pay out a big settlement (which is how these things usually end).
I am also fairly sure employees are generally not personally liable.
The issue here is while employees aren't personally liable if they discuss Google wrong doing, Google is liable, which causes the culture of secrecy and deletion.
So the comment I was replying to is kind of wrong about "liability" and the root cause here. Because yeah..Google isn't gonna not be liable for stuff they as an organization of people do. That can't be helped.
> If you have communications that can be used as evidence you're probably in the wrong.
The problem is that most employees are not lawyers so they cannot make a proper legal judgement on their routine works. And even lawyers are frequently making mistakes. And if you think prosecutors are not good at "creative legal interpretation", then you probably don't know much about them. Seemingly innocent things can become the greatest weapon at the hand of competent prosecutor.
>The problem is that most employees are not lawyers so they cannot make a proper legal judgement on their routine works.
but the executives are much closer to understanding the legal issues, so when an unsophisticated employee suggest something that is against anti-trust, the boss should say "no, we can't do that, it's anti-competitive"
the issue is not speaking against interest, it's engaging in illegal behaviors.
> Mega-corporations should have their communications logged at a much higher level than a normal business.
I agree entirely. And it's not like it's unprecedented: we treat banks like this already. They have to keep records of all internal communications for years.
And it doesn't stop banks from breaking the law, or their employees from doing so in (recorded and logged) internal communications.
> They have to keep records of all internal communications for years.
Except for those that happen in person, which is bizarrely arbitrary, especially in times of hybrid work. I do feel like there really should be a digital/remote equivalent to an in-person conversation – but (for specific industries only!), there isn't really.
One could even say that the status quo is a huge scope creep in terms of the original intent of the regulation, which was apparently focused more on "things one intentionally writes down", not "things that got written down because that's just the medium in which a conversation happened" or "things that were recorded because it's technically feasible" [1].
Say we do this for car engineers. How do you communicate for continuous improvement when to acknowledge ANY issues will be used to sue the crap out of the company when accidents occur/issues come up? You are killing any sort of continuous improvement program if you do this. All that sort of communication will be switched to verbal are the requirement of Lloyds of London or whatever huge insurance company insures the business/products.
You're right, it doesn't, but judging from how SEC enforcement actions work, banks often get nailed based on the contents of those required-to-be-recorded communications.
And the SEC will even fine financial institutions for having work-related conversations outside of the official recorded channels.
“ If you have communications that can be used as evidence you're probably in the wrong.”
I’m surprised to see someone advocating for “if you haven’t done anything wrong you don’t have anything to hide” on HN. The cognitive dissonance must be in overdrive here!
It's not false equivalence, we were talking about communications between people. Corporations don't write emails, people do. A corporation, big or small, is just a legal way of definining the property of people, and the people who work for it (who may or may not also own some of it) are people. Communications between them are communications between people.
What they're saying is that people deserve privacy, unless what they're doing has some relationship to making money, in which case they do not.
Of course we're talking about communications between people, but the record of these communications is used to find fault with the company, usually, not with the individual people. I think that's a really important distinction.
So I agree with the person who said this was a false equivalence.
Corporations exist at the pleasure of the people; we can and should impose any and all requirements and restrictions on them necessary to ensure they do not amass too much power and act to the detriment of regular citizens. We've failed in that, and we see the negative consequences of that daily.
There are lots of vague things, the idea that if something you said could be used against you in court you must have done something wrong (the only thing to which I was responding) is not one. Prosecutors are just as overzealous in civil cases as legal. Innocent things said at work can be used against someone just as well as ones said at home and in all the same ways and for all the same reasons.
What’s the famous Cardinal Richeleu quote?
I responded only because “corporations bad” is a mind virus deeply inculcated in a lot of people here, but those same people mostly would never think that just because something you said could be used against you in court that you did something either morally wrong or illegal. I wanted people to see the effect the mind virus had on their thinking.
Did anyone? No idea, probably not.
But it’s not a false equivalence at all, all the same reasoning applies whether your communication was at the office or your house, and whether it was about your dog or your code.
There are very many non-nefarious, completely legal reasons one might not want a work communication to be visible down the line, just as with personal. If someone can’t see that their thinking is cloudy and I bet they experience cognitive dissonance.
> Innocent things said at work can be used against someone
No, they can be used against the corporation. And that's totally fine and proper.
> There are very many non-nefarious, completely legal reasons one might not want a work communication to be visible down the line, just as with personal. If someone can’t see that their thinking is cloudy and I bet they experience cognitive dissonance.
No cognitive dissonance here. I just don't consider private/personal speech to be the same thing as work-related speech. I think the former should be protected from prying eyes (including the government) with as much zeal as we can muster. But the latter? No, there is no reason or need to hold that stuff sacred, and many reasons related to accountability to ensure it's recorded and available for legal challenges.
The flaw that is limiting your thinking and understanding is companies don’t do things, only people can do things. Until you start seeing companies as a group of people, you can’t understand and predict how a “company” will act and behave. When a sales person is selling a product, it is a person who is acting, they may follow some policies, but another person made those policies. You need to expand your thinking into the individual people.
I use this all the time. People say “the government wants…” or “Republicans did…” (you can pretty much play this like mad libs) and I say “wait, the government is an organization comprised of people, who specifically wants that?” And then they say {insert other nebulous group here} and I point out the same thing.
And then either they give up out of frustration and think I’m dissembling or they start to think about the problem differently.
Suppose a group of people agree amongst themselves to work together to produce and sell a good or service.
Are these people entitled to the rights you're talking about? They're people, so I think you must say that they are.
OTOH, to all intents and purposes these people are behaving like a corporation. How can it be that corporations are denied those rights, but groups of people that behave exactly like corporations -- that are corporations, in all but name -- are entitled to them?
Yes, corporations are groups of people, but they are also legal entities that have been given certain rights, responsibilities, and restrictions.
On top of that, we usually consider the corporate entity legally liable for thinga the people do in the name of the corporation. That doesn't come from "just a group of people". That comes from a specific legal structure we've decided on as a society.
Corporations are not people. What a single person does while not affecting anyone else is nobody’s business, but what companies do affects a lot of people, hence it is other peoples’ business.
This is simplistic thinking. Companies can’t do anything. People do things, sometimes as a functioning part of an organization. Companies don’t decide to cut down trees for profit, people decide to take that action. When you say “a company is damaging the environment” you’re allowing a person to hide anonymously under the veil of a legal entity. Companies can’t do anything. Only people do things.
financial and corporate transparency and privacy are a very different matter to the transparency and privacy of an individual.
despite the whackadoodle precedent that corporations are people, corporations are not people. they may be made of people, but the affairs of those people are within the course of their employment, acting on behalf of the corporation.
There is a difference between keeping one's privacy and actively abusing and masquerading attorney client privilege to conceal criminal actions, knowing they are criminal actions. Because that is what Google was doing. They knew extremely well how they were violating the law and the implications.
And even worse, actively recruiting individuals to commit obstruction of justice and evidence spoliation (two distinct categories), so you as a company can thrive from crime a few more years.
The law is there to protect consumers.
Privacy law is there to protect everyone. Google could have easily said: I have the evidence, but I plead the fifth and not going to provide that evidence that you seek in discovery. The issue of course is in civil proceedings this means, the Court can instruct adverse inference or strike the pleadings -- that is a default judgment.
That's not how any of this works, at all. Please take the time to at least take a look an introductory Wikipedia article about the legal system. (For starters, "pleading the fifth" applies only to testimony of a human being which may cause him to be personally accused of a crime. It has zero relevance to the question of accessing archived emails and chat logs sitting on a hard drive which is owned by a corporation accused of a civil violation.)
If anything it speaks to the volumes of times that folks are pressured into doing something that is probably illegal but they won't get whistleblower protection on.
> The cognitive dissonance must be in overdrive here!
That's overly glib. Large and megacos should be held to a higher standard than ordinary folks and small mom-and-pop shops.
A decent rule could be "If you have an army of lawyers (whether on retainer or on staff), you're presumed to have a far higher-than-normal understanding of the law relevant to your business and get far less lenience and forbearance from the courts.".
Yes, I know that's not how it works today. I'm saying that it SHOULD work that, maybe after a six or twelve month advance notice period.
that understanding has obviously been that the people who wield the law are highly adversarial, so it is in their best interest to conceal as much as possible
It's not that, though, I understand the temptation to `sed` what they said into that. It's easier, more fun, and its much more work to come with curiosity.
There's nothing here to be curious about, just the usual "corporations bad". It's easy to mistake an emotion for an idea but it isn't.
I'd normally pass it by entirely with an eye roll, I just thought it was funny that it's the opposite of how they'd feel if talking about people in their personal lives, completely unaware that these are the same people at just a different time of day.
It's not, though. It's people in an entirely different context, acting as an agent of a legal entity that is regulated and has restrictions on the things it can do.
This is the same reason why I think police should be recorded when they are out on duty. A person gets to have the right to privacy, but the police, while on duty, should not have that right, given that they have the ability to legally kill someone, among other things.
If you (police, large corporation) are granted the legal ability to do harm on a large scale, then you also need checks to ensure those abilities are not being abused.
> There's nothing here to be curious about, just the usual "corporations bad"
I'm sorry to be abrupt, but thats not true. We can see that empirically. For instance, you are talking to someone who read it and thinks that's a simplistic caricature of what they said.
So we can dispense with the idea your rephrasing is equivalent. That's indisputable.
There's a good quote about this in Rand, something something faced with a contradiction check your premises. When we jump to these kind of reactions, it's an annoying responsibility to pause and sigh, and engage on some level beyond "I'm sick of people saying (something they didn't say)"
It’s clearly not indisputable as it has been disputed. And I was responding directly to something someone did say. (That person did not say that the same logic doesn’t apply out of the office, I did infer that part.)
But both the “corporations are bad” mind virus (which is no more interesting than flat earth theories) and the idea that individuals want and deserve privacy even when acting morally and legally are so widely held here that I’m sure that Venn Diagram is like 90% the overlap part. The post to which I was replying may not be in it, I have no idea.
I wanted to point it out so people could see it clearly in case anyone caught it. I’m sure a lot of people felt some cognitive dissonance by agreeing with both and didn’t realize it, as one rarely does.
The original idea to which parent was replying actually was interesting. If nothing can be deleted, corporations (and people, when not at work) can be hampered and pushed into other forms of communication, other actions, etc. which can then even grow to be nefarious. That one’s interesting, “if what you said could be evidence then you did something wrong just because you were at work” isn’t, it’s just silly. It’s child logic.
> Mega-corporations should have their communications logged at a much higher level than a normal business.
I agree. But, it needs to be balanced by making the penalties for companies engaging in vexatious and/or abusive litigation and vexatious discovery tactics very, very harsh. Megacorps would dislike both of those things happening to them, so we'll never see it.
It does happen, ex. the financial industry is famously subject to the logging, and you'll see most startups take their first big leap into the enterprise by adding complete logging specifically for many who implement that.
I worked at Google between 2016 and 2023 and I feel embarrassed by this. I knew it was wrong, but just said "oh this must be what being at bigco is like." We were an exception.
And the result is that the financial industry is basically untouchable. Everything is buried in so much red tape that it's impossible to compete. And the consequence is something we feel across society. Eg Visa and Mastercard picking and choosing which credit card transactions they allow has an impact on what is and isn't acceptable in our culture.
Visa and Mastercard are not financial institutions subject to strict recordkeeping requirements because they don’t hold deposits or securities, issue credit, or control large amounts of capital. All they do is route payments.
There are undoubtedly reasons they are so dominant today, but storing old emails and chat logs is probably not one of them.
I've never really been amenable to simple moral plays, the contrarian in me says they hide more than they obscure.
It's moving and feels true, I have a particular dislike for credit card processing, but when I stop myself, I cannot think of a single practical example of how credit card processing has tightened rather than loosened over time. Separately, despite despising the ex. absurdity of AmEx getting 5% of the restaurant check because they pay off their customers, their profit seems attributable and proportionate to the credit risk taken on, there aren't really signs of significant market power
Fwiw I don't mean like visa MasterCard, I mean like Citibank, Deutsche. Basically anyone who would have been in headlines in 2008 or has custodial responsibilities for $X00 billion.
Yes, I think corporations are fundamentally different entities from normal businesses because they benefit from macroeconomic monetary policies and regulations in ways that normal businesses do not. As they have an unfair advantage over their competitors, they have a responsibility and should be treated essentially as government organizations. The correlation between corporate stock price and Fed monetary policy decisions is undeniable. Just consider that Fed money is the people's money... Paid for via inflation/dilution and loss of value of everyone's salary contracts. Literally, your 100k per year employment contract will have lost about half of its value after 10 years (assuming the government's own figures) if you don't re-negotiate your contract.
Plus, even if you do re-negotiate your contracts frequently, your salary still lags inflation and by that time your colleagues in the industry will be more oppressed than they are today and you will have to compete with people who will have lower self-confidence than they have today and thus they would accept lower salaries which will drive down your own wage.
The tech industry is tough because the average worker has low self-esteem. Also corporations drive down self-esteem by monopolizing the industry so even the most skilled workers feel hopeless to compete against them.
I wish I had put more thought into this when I started my career. I would have studied law. Lawyers have ridiculously high self-esteem considering often rather limited knowledge compared to engineering professions. Engineers are nerds with confidence issues so they tend to accept less than they could get, driving down wages. Not to mention regulatory moats that exist around the legal profession which keep the supply of accredited professionals low and thus keeps their wages high (supply/demand dynamics).
It ends up as evidence when routine business operations are breaking the law. Everywhere I’ve worked hasn’t had an issue with this stuff being tracked and several places actively preferred when stuff was recorded. Most companies don’t have an issue with clear communication because they’re not worried about what’s being said will end up part of a criminal investigation.
So this is something that’s almost exclusively going to harm criminal organizations by making them less efficient.
> Most companies don’t have an issue with clear communication because they’re not worried about what’s being said will end up part of a criminal investigation.
Only if you count "most companies" by company, i.e. most companies are therefore small businesses. And of course they're not worried because they're small and not subject to these kinds of investigations. They're not profitable enough to be targets.
But if you count "most companies" by where most people work, you're talking about medium-to-large corporations. And it's standard these days to have policies exactly like Google's, to not retain instant messages for example, and delete e-mails after a short number of years. Because they're big juicy targets for frivolous lawsuits.
So no, this isn't a win-win. People say dumb stuff all the time that a lawyer can take out of context. That doesn't mean a corporation is a criminal organization, as you suggest.
Corporations sue each other all the time, not because the corporation being sued is criminal, but because the corporation suing thinks it'll be able to get away with it. But you seem to be ignoring that.
I’ve worked at and seen multiple companies with 10+k employees that have the attitude I was talking about, it’s not just a small or mid sized company thing.
I have also been told internal communication is more likely to be beneficial in lawsuits. It’s not because you’re intentionally hiding stuff, but because your employees have a viewpoint that is more likely to align with your interests than a 3rd party.
> People say dumb stuff all the time that a lawyer can take out of context.
Stuff taken out of context is rarely very persuasive when you can provide that context. It’s far more damaging to their credibility than your case.
"Give me six lines written by the most honorable of men, and I will
find an excuse in them to hang him."
I would guess you haven't had to experience such an unfair situation personally as you still have that young/naive optimism about the world. If you ever find yourself entangled in some legal technicality, you will realize that that is a really bad idea.
On a similar note, never talk to the police, no matter how lawful you may think you are.
This isn’t just me talking, this is internal legal advice at multiple large organizations who have been through a great number of lawsuits. It basically boiled down to document everything.
"Google produced 13 times as many emails as the average company per employee did before it was a decade old, Kent Walker, Google's top lawyer, testified in the Epic trial. Google felt overwhelmed, he said, and it was clear to the company that things would only become worse if changes weren't made."
According to Google's own testimony this is a Google problem not a problem shared by the other average companies that produce 13 times less email per employee than Google.^1
A reasonable person might suggest that the company's employees try to produce less email (and instant messages) like other companies.
Instead, a crook might agree that the company destroy email (and instant messages), potential evidence, immediately after being created.
But Google does not do that by default for the public with Gmail and its instant message services. Maybe because the average user is not a crook.
1. Google probably has far more than 13 times the amount of storage capacity than the average company.
Destroying potential evidence at a company is what it is. It is not like there are multiple ways to interpret it. Google did it even after they knew they were being inestigated.
> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
Most orgs I've been at with this concern either on a large or silo'd level, will either change policies to fit, whether that be retention times for chat messages or guidelines to not record certain types of meetings/etc.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
Mixed bag. Not every org will be OK with someone bringing up various regulations known in a recorded meeting, or even saying the potential number of impacted risk cases on a call raised with an issue in production. OTOH I've been at shops where I asked about the legality of something and it was thanked for being on the record (Thankfully that org was super-compliant and it was never about production, only design.)
This comment would make sense if all companies communicated like Google does, but they don’t. Most companies have remarkably open internal conversations.
Many of the senior mandatory corporate trainings I've been to, often led by lawyers, basically state that "e-mail is evidence-mail" and to watch what you send.
As cheap as storage is, we're going to end up in a situation where every business with >100 employees is expected to have cameras and microphones recording and transcribing every conversation just in case people might be communicating outside email and chat.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication
Funny really that it was Eric Schmidt who said on the topic of privacy: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."
"... except if you're a corporate employee in a routine business conversation" – added Schmidt after some additional consideration.
But.. but.. ethics will degrade if you can't do illegal things!
Call me jaded, but if my 8 person company could say " maybe we should get legal advice before doing that" I am not going to wring my hands over poor, persecuted Google. They've become an ad company with some web tools on top.
google made internal chat messages disappeared after N days, which was disclosed in one of the trials, but I do not recollect any following punishment.
Like many US big companies, Google activated the court-sanctioned evidence destruction machine. (AKA "Document Retention Policies")
Because this form of evidence destruction is viewed as legal by the courts if you're not a "highly regulated" business like a bank, unless you've been specially and specifically ordered by the courts to preserve evidence there is no punishment for destroying evidence in this way.
A few years back, Google execs did choose to continue to destroy evidence after a court ordered them to preserve evidence and turn off their evidence destruction machines. I do not remember whether or how severely they were punished. (If they were, surely the punishment was far less than it would have been for we mere peons.)
> Because this form of evidence destruction is viewed as legal by the courts if you're not a "highly regulated" business like a bank, [..…]
Which is exactly the crux of the problem.
Why do we have two completely opposite regimes for arguably not very different types of organizations?
Intentionally short data retention policies should be illegal – but obviously that's completely infeasible in the US with its incredibly expensive legal discovery process, so that would be the first thing to fix.
On the flip side, even regulated industries should get to have a digital equivalent of an unmonitored "conversation on the golf course/in the elevator" etc. – or do we seriously want to incentivize that in a world where we're rethinking physical offices?
They explicitly weren't punished as Google lost the anti-trust lawsuit.
I'm not too sure it's the best decision to let all the individuals that intentionally either deleted or in Sundar's case attempted to delete evidence (legal hold overrides right click -> delete) completely off the hook.
having worked at a tech company subject to a “legal hold” just in case the government wanted to sue us in the future, i agree that it’s absolutely asinine. have to save every device, every file, every email, every chat, every document, forever, indefinitely? what does it even mean to “preserve a document”? can it be edited?
These policies are in place because companies have learned that journalists will happily take any comment, from any employee, from any context, and make it Crucial Evidence(TM) of impropriety...
There's a difference between snooping and questioning in search of the truth versus snooping and questioning in search of a juicy story to repeat for profit.
Like with the police, there's a lot of hagiography that paints journalists as the dogged researcher who will stop at nothing to expose the truth about $SUBJECT, but like with the police that trope is not the full picture. The average journalist spends a few hours collecting quotes to support a story that they have already written in their head, which they then put into writing underneath the most exciting headline they (or their editor) can imagine. They're paid to sell papers/get clicks, not to discover the truth, and it shows.
With that in mind, OP is absolutely correct, and "don't talk to journalists" should be right up there with "don't talk to the police" in our guidelines for life. They're not your friend: they will destroy you if they think it'll grab enough attention.
> put “attorney-client privileged” on documents and to always add a Google lawyer to the list of recipients, even if no legal questions were involved and the lawyer never responded
Wow. One of the very first things I learned when onboarding to a US company is that the client-attorney privilege does not work like that at all.
“Privileged and confidential” is not a legal shibboleth (especially not when used so incorrectly).
Yes, and it can actually backfire, by opening the floodgates to all communications. (As you lose all credibility after some point.) You are just betting nobody is going to keep digging.
We’re not even allowed to add watchers to our legal Jira since our lawyers have told us it destroys privilege if there are multiple people in the discussion with the legal team. No chance if that’s true that a “cc:Lawyer” would provide any meaningful protection.
I suspect "put “attorney-client privileged” on documents" is only a policy in specific areas within Google due to poor leadership in those specific areas, and that's being magnified for clicks/outrage.
I'm a little skeptical of the article, because I know that it's not a legal shibboleth, and I think I learned it when working at Google quite a long time ago.
Two comments, directed to the majority of discussions:
a) It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation strategy in direct violation of the Duty to Preserve as outlined in the Federal Rules of Civil Procedure (https://www.law.cornell.edu/rules/frcp/rule_37)
That is deletes information.
“Google had a top-down corporate policy of ‘Don’t save anything that could possibly make us look bad,’” she said. “And that makes Google look bad. If they’ve got nothing to hide, people think, why are they acting like they do?”
b) I think and I hope we have not heard the end of this. There are worse things to do than being found as an individual to have violated anti-trust laws, I don't know say have actively setup and organized thousands of people to directly obstruct justice and destroy records to hide such actions: 18 USC §§1503, 1512(c)... (See https://www.law.cornell.edu/uscode/text/18/1512)
"Judge James Donato of the U.S. District Court for the Northern District of California, who presided over the Epic case, said that there was “an ingrained systemic culture of suppression of relevant evidence within Google” and that the company’s behavior was “a frontal assault on the fair administration of justice.” He added that after the trial, he was “going to get to the bottom” of who was responsible at Google for allowing this behavior."
You have the DoJ and three judges looking at you with your pants down. I hope this is the beginning honestly, otherwise what message does it send to every other entity out there? Imagine this happening on any interaction you have as a consumer or employee.
> It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation... That is deletes information.
Not at all. Obviously, Google's mission is to organize the world's public information. You don't want Google organizing your personal Gmail for the world to see, do you? So why would you expect Google to organize its own instant messages for the world to see?
> You have the DoJ and three judges looking at you with your pants down.
Judges disagree with each other. All the time. Investigations often don't even make it to trial because there isn't a good case in the end. And just because you have judges investigating you doesn't mean you're guilty. Presumption of innocence and all that, you know?
I was watching Kennedy's (RFKjr's daughter) interview with Tucker and she talked about her first day at work at C.I.A. and instructions on how to tag emails. She said there was a huge drop down and she was told to just set a default (which turns out is the highest possible security setting) "even for things like 'want to go get a coffee?'" Quite clever since that set of emails will be an enormous pile of mostly useless chit chat with other matter buried in the mess.
This isn't really a special case. Google provides similar retention policy settings to other organizations that use Google Workspace [1]. Any large organization that's a target of lawsuits will likely find them useful.
I wonder how deleting emails works with sarbanes oxley? don't you have to keep any records that may affect the bottom line, down to the individual who created the information item? that's what they told us back when S-O was introduced.
> Luckily I live in Europe where the atmosphere is far less litigious.
Not if your name is Google Inc.
> Nothing IMO. They can look at the company's actions. There's no need to invade the privacy of individual employees.
This refers to employees communicating in a work setting not personal communications. Not saying there should be cameras in the bathroom but if you’re talking to coworkers on an @google email about work… it feels hard to justify saying it’s private.
People are still human beings even while at work. There is a limit to how much an employer owns a person, even when they are an employee, even when they are in the building, even when they are on the clock.
Employers try to push that as far as they can get away with, so there are current examples of employees being treated worse than cattle that should be illegal and probably is, but that is just employers overreaching and getting away with it because of the usual power discrepency.
And my point with all that is the rest of us have no right to anything the employer has no right to.
> If they were trying to confiscate my personal mobile that I use for work
That is a good reason never to use your personal mobile for work! If you really need a phone to do your job, your employer should be paying for it anyway.
This would work if we could punish wrongdoing regardless of intent, a standard probably reasonable against companies (they should know better after all). But this is not how it usually goes: Usually incompetence has to be ruled out and criminal intent has to be proven.
> every communication within a company could be recorded forever.
Within 15 years we will probably wear a necklace or other device that will record [at least the audio] of our entire lives. This will have a number of positive benefits (memory augmentation, etc.) but also as train data for AI.
Some people will. Others will refuse, and very likely refuse to interact with people with such devices. The "gargoyles" of Snow Crash (people living their lives with full recording devices on them at all times to upload to the metaverse) were not well liked.
And lest we forget more recent history, the term "Glassholes" came into existence to refer similarly to people with "I don't know if their camera/mic on their face is recording me or not!" devices on their heads.
A quote I often remember -- don't know the source:
> We live in a unique moment in time. Cameras are everywhere, and we can see them. Previously, they were not there. In the future, we will not be able to see them.
> And lest we forget more recent history, the term "Glassholes" came into existence to refer similarly to people with "I don't know if their camera/mic on their face is recording me or not!" devices on their heads.
That was during the same years when SOPA/PIPA inspired half the companies on the internet to go black in protest, the same companies which now fold over in response to authoritarian demands from governments. We now live in a very different world than that one.
> And lest we forget more recent history, the term "Glassholes" came into existence
Norms do shift. I remember the fuss over GMail "reading" your mail.
Today we already have dashcams, bodycams, security cameras, and doorbell cameras recording a lot of spaces previously presumed to be unmonitored. Another 10 years and continuous recording will be commonplace.
Any more specific than just "The Circle"? The one by M.J. Trow does not really sound so fitting. Are you talking about Dave Eggers? Is this a read recommendation? :-)
Better to just have a website for anonymous tip offs where you can download a private key and collect a fat reward if it ends up being used for a prosecution.
Or we could do the opposite and have corporate whistleblowers like the boeing ones mysteriously die off while everyone just makes jokes about it.
As much as I think Dalio's "principles" are a "good thing" for personal practices they don't scale to groups--let alone a corporation.
All of these "radical transparency" and "radical honesty" practices are just justifications for being lackadaisical about the nuances of human relations.
I remember Urs arguing for this at TGIF quite some time ago. He said legal costs were increasing exponentially while the value of old email was only linear, which was unsustainable.
One outcome of this was to wipe a number of ongoing scientific discussions I was having with external collaborators. I'm used to people having the last 30 years of mail on hand to be able to carry out extremely long, complex projects.
Good point. To add to that, I hazard a guess that the legal costs are about collecting everything for discovery, and not necessarily about them causing Google to lose legal cases.
Governments have similar problems too: activists/journalists can make sunshine requests of day-to-day communication on a daily basis to find any written mistakes to turn into PR nightmares. This incentivizes politicians to delete their texts regularly to avoid the hassle https://missionlocal.org/2024/10/s-f-mayor-city-attorney-bro.... Willie Brown also famously told people that the e in email stands for evidence.
Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.
Then all these written opinions were gobbled up by lawyers during the discovery phase of endless lawsuits Google has to defend. It created constant headache so they said, we'll auto delete chats older than a few days unless you opt-out.
Now a court and this article say they are destroying evidence.
I've personally lost my trust in both the media and the legal system honestly. The incentives are just not aligned with good outcomes. The incentive for the media is more and more drama and the incentives for lawyers is always adversarial depending on who they represent.
I think this happens at pretty much every company but Google is particularly effective at it and/or just got called on it.
I'd bet that most tech execs have been trained to take the juicy stuff off of official comms altogether and use some privacy preserving mediums like signal or telegram - probably colluding with 'competitors' there as well.
Yes, these are terrible policies, which has gotten Google in hot water during litigation. Overusing Attorney-Client Privilege is a good way to get it neutered/curtailed during a trial. Moreover, the company has an affirmative duty to preserve data. Leaving it up to individual employees to retain data risks adverse inferences about the lost data, sanctions, default rulings, and worse depending on the circumstances.
> It encouraged employees to put “attorney-client privileged” on documents and to always add a Google lawyer to the list of recipients, even if no legal questions were involved and the lawyer never responded.
> Companies anticipating litigation are required to preserve documents. But Google exempted instant messaging from automatic legal holds. If workers were involved in a lawsuit, it was up to them to turn their chat history on. From the evidence in the trials, few did.
At my previous company (a big semiconductor vendor) the legal dept made it clear that if you had a question, you did not ask them by text. You rang them, because that made it privileged. But they didn't try to escape from discovery of emails - they were retained.
Actually they wanted some retention, because for them a big thing was to have evidence of the date you invented something in case of patent litigation. Everyone was given a paper journal in which you were supposed to make notes, which I totally failed to do.
I worked for a company that was acquired by LU/Bell Labs in the '90's and their IP notebooks were excellent: hardbound with a sturdy cloth binding and thick, high-quality graph paper. We were supposed to have each page countersigned at the end of the day but that rarely happened. We were too busy makin' the donuts.
We got engineering notebooks once and then never again; I think something happened to patent law that obsoleted them. Which could just be that it became much harder to get software patents.
Pretty much every public company, at least every bigtech company, follows the same conventions -- don't say incriminating things in chat, trainings for "communicate with care" (definitely don't say "we will kill the competition!!" in email or chat), automatic retention policy etc etc.
> definitely don't say "we will kill the competition!!" in email or chat
My first reaction when I went through this training was that the US legal system is completely absurd in the context of corporations, and can't result in anything but absurd outcomes, whether the litigation is successful or not.
There's quite literally a guidebook that says "don't say 'kill the competition', say 'we will make the best product' instead", etc. It's an obsession with words, and while I can understand how that's important in some civil cases, it's (a) trivial to conceal the coded speech to the point of cringe (see exhibit A: the TV show Billions, where the phrase "I am not uncertain" is used to somehow create plausible deniability), (b) you're gonna get a bunch of false positives from non-decision makers talking colloquially and sarcastically to each other and most importantly (c) it's completely meaningless anyway because intent means nothing to an amoral corporation. Wrongdoing by giant behemoths should be judged by what the company does, did they compete unfairly or not. Their nifty word-weaseling, or a random employee's clumsy lack thereof, should have no bearing on the case.
This is totally true of a number of large companies including most of big tech. Bad retention of communications, overuse of attorney privilege, using euphemisms or code words, etc are all standard. They hide their truly damaging intentions but it’s an open secret within these companies. Different regulations are needed to fix it.
Google 100% provided advice for concealment specifically targeted at future litigation. Gchat logs were specifically reduced company-wide explicitly to avoid court discovery.
I personally saw the advice to cc a lawyer with a legal question in order to bring a conversation under attorney client privilege.
The penalty they’re facing in now way accounts for the money they saved by concealing evidence, which basically means “keep doing it, it works!”
It's illegal to destroy evidence of a crime but it's not illegal to avoid creating evidence in the first place especially if you genuinely believe that you're not doing anything wrong. Generally speaking, companies are not obligated to preserve every chat forever just in case they get sued later on.
I wonder if the widespread adoption of video chat will shake up norms here. Not recording or purging the recording from a Zoom meeting or Zoom-enabled conference room seems exactly as scandalous as using an OTR messenger or a short retention period on email.
> It's illegal to destroy evidence of a crime but it's not illegal to avoid creating evidence in the first place...
One can see how regular folks might consider the practice of automatically destroying chat and email messages after one to three months destruction of material which could be evidence.
"Never erase anything" seems to work fine for highly-regulated businesses like banks. And while long-term storage of electronic communications isn't free of charge, it's not at all in the same ballpark as storing decades of paper memos and other paper internal office communications.
Also: The widespread directive to "magically" turn documents into privileged communication with lawyers makes Google's bad intent very, very clear.
> One can see how regular folks might consider the practice of automatically destroying chat and email messages after one to three months destruction of material which could be evidence.
I doubt it, expiring chats are widespread even among consumers.
Everything that happened around this time was so fishy. I completely lost trust on Google doing the right thing at this point as they were silencing people protesting against working with military/defense contractors.
Laws have always been weapons, they're the weapons the people use to protect themselves from corporations, and the weapons a society uses to ensure the health it its members.
I can only imagine that institutional knowledge will slip through the cracks thanks to sleazy retention policies made to thwart lawsuits. Tech debt will accumulate until it implodes.
Google, a company who's goal is, ostensibly, to make the world's information accessible, has been working hard to conceal information about itself. The irony is palpable.
There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
I don't wish to facilitate corporate crime, and it's obvious that some of Google's anti-competitive behavior is unlawful. But, I don't see any realistic alternative to what Google is doing in the current legal environment.
reply