12 ms·

US Justice Department accuses Google of hiding business communications

272 points by tareqak 5y ago

justinzollars 5y ago
> false requests for legal advice," DOJ attorneys wrote in the brief, asking U.S. District Court Judge Amit Mehta to sanction Google and compel the disclosure of more documents. The US Government is 44% of GDP - with big plans to grow. Google is not the problem here.
Spooky23 5y ago
I’m sure they are right but it’s amusing in that government is the biggest abuser of this sort of thing.
drewda 5y ago
They sure like their email at Google. At most other organizations, sensitive email chains would be open to discovery but would just end by saying "call me" :)
- mjevans 5y ago
  Major corporations also often adopt a policy of automated record expunge after a given time. Sometimes that time is very short.
  - dekhn 5y ago
    when I started at GOOG, email lived forever. Then at some point, supposedly document discovery was costing n*2 dollars for n accounts and this was some sort of justification for creating a 1-year and 5-year expunge (maybe I have the times off). I ended up losing a fair amount of my long-term correspondence (scientific stuff) because I didn't want to vault things indefinitely. What amazes me is that the leadership repeatedly puts these sorts of incriminating things in email after being repeatedly told not to.
    - droopyEyelids 5y ago
      I think of myself as someone who is relatively skeptical of authority, but even so it's hard to disabuse myself of the notion that company leadership is there due to meritocratic reasons. Just because they're VPs in the biggest company in the world doesn't mean they're actually smarter or more capable than a random person selected from the population at large. Some of them might be, but SOO many people are in their spots due to the accident of their birth and other random processes that happened afterwards.
      - dekhn 5y ago
        I wouldn't say any of the SVPs I met at Google during my era (probably 6-7 SVPs) that I thought any of them were dumb. And several were some of the smartest people I've met. But that's the problem with Google: INT 18, WIS 3.
        yborg 5y ago
        >But that's the problem with Google: INT 18, WIS 3 This is the whole tech industry in a nutshell, not just Google.
        omarfarooq 5y ago
        > INT 18, WIS 3. Pardon?
        niij 5y ago
        High intellect, low wisdom. The shorthand here is common in games where your character has certain capabilities/stats: intellect (int), strength (str), defence (def), etc.
        actually_a_dog 5y ago
        It's a D&D reference. Starting stats for (human) characters typically range from 3-18, corresponding to the range of 3 six sided dice. "INT 18" means "maximum normal human Intelligence." "WIS 3" means "lowest possible human Wisdom stat," where "Wisdom" roughly translates to "common sense."
  - Spooky23 5y ago
    Depends on whether you are sued or are a sue-er. I used to be in the email biz, and spoke to attorneys whose retention preferences were 7 days and others who would like to keep email until the heat death of the universe.
    - dekhn 5y ago
      I decided it made more sense to move my scientific correspondence to personal gmail (I've not deleted any emails since I signed up in ~2005 or so) and decided not to give a fuck about my google email. if the company lost something useful because it aged it my email, that's google's problem, not mine.
      - deleted 5y ago
        [deleted]
  - hirundo 5y ago
    Slack deletes posts older than a few weeks on their free account, and flogs longer term access as the principle feature of their paid account. But I assume some customers feel that Slack is asking them to pay for extended legal liability.
    - histriosum 5y ago
      Just FYI, I don't believe Slack deletes them. They just hide them. If I go from a free tier to paid, I believe my message history becomes available again.
- Havoc 5y ago
  >sensitive email chains would be open to discovery but would just end by saying "call me" :) Probably less common in tech than finance, but recording of 100% of calls for key people is quite common. In regularly in training sessions about random stuff that end up being A/V recorded since one random dude in the training has above requirement legally.
deleted 5y ago
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deleted 5y ago
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stefan_ 5y ago
Why on earth would we afford any sort of attorney-client privilege to a business entity? Maybe it's time to have another talk about what exactly the public is getting from this limited liability thing.
- ggm 5y ago
  A lot of the law depends on narrow specificity. I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. If you want to change this, be wary of the (law of) unintended consequences. A charge should be narrow and specific. If you get a wide warrant, then sure: all the words should be open to view. But if the problem is financial then the IPR mails are not relevant, its the finance mails you need to be shown. Hiding finance mails in IPR mails would be a crime probably. The warrant to finance probably includes these, by implication. Once you are required to present, its fair to incur a cost outcome of "how narrowly can we respond and not be in the wrong" Because we don't punish people for as-yet unknown crimes, in this process. Attorney-Client privilege goes to asking your Attorney about how narrow the responses can be, and still be legal. Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? I am not a lawyer. Find a lawyer to tear this line of reasoning apart, it is probably a low-bar goal.
  - verve_rat 5y ago
    >I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. The point is: why? Corporate entities and individuals follow the same rules because we (read: societies, governments, parliaments) decided that would be the case. But is that the best outcome? Should we revisit that decision?
    - ggm 5y ago
      which is why I asked: > Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ?
efitz 5y ago
All the large tech companies train their employees how to request advice from counsel and use privileged and confidential email communication. I've never worked for Google but worked for two of the other MAGMAs and it was pretty standard. Nothing I saw about the training or common usage seemed suspicious; I think it's in the eye of the beholder. After several big companies got their internal email used against them in lawsuits, esp. antitrust lawsuits, they focused heavily on training employees how and when to discuss sensitive topics related to competition, e.g. "don't say exaggerated things like "we're going to kill the competition", etc. And the trainings emphasize being extremely accurate and precise, and not speculating as to legality unless you actually are a corporate counsel. They teach you to take such questions to corporate counsel, e.g. "We're thinking about doing X, what do you think?" on P&C email threads. I'm sure that some people could overuse this, but again, I didn't see anything suspicious, and I remember seeing one guy get called down for addressing email to corporate counsel as P&C and not actually asking a question. I'm sure in every org there are weasels who would try to misuse this, but I'd have to see more evidence before I would believe that this was cultural at Google.
- BurningFrog 5y ago
  When I joined Google in 2006, the message was "don't write anything in an email you don't want to see in a NYT headline". Good advice for all digital communications. You have to assume the authorities, and others, are listening.
  - mistrial9 5y ago
    "You have to assume the authorities, and others are listening" doesnt this seem sort of outrageous to an outsider, since Google pioneered the practice of searching every user's emails? like, they dish it out but also hide their own ? Secondly the extreme and secretive legal agreement not to talk about your work, even years after leaving the company.. it seems Google got away with a lot, by virtue of "superpowers" that is objectionable for good reason, for the business community in general.
    - zdragnar 5y ago
paxys 5y ago
> "Google has explicitly and repeatedly instructed its employees to shield important business communications from discovery by using false requests for legal advice" Considering the DoJ is expecting to use these documents for their own case against Google, I don't see how they can argue that it was improper for the employees to get lawyers involved.
- ceejayoz 5y ago
  You can't just CC legal on pretty much everything to subvert regulatory action. If legal's openly ignoring these CCs, I don't see why attorney/client privilege should necessarily apply.
  - mountainb 5y ago
    It doesn't apply. It's not even a clever workaround. It has to be a communication that requests or involves legal advice. If you just forward a public email to your lawyer or CC the attorney on normal business communication it is not privileged. If you forward such an email to the attorney and ask something like "thoughts? what are the risks here?" that ensuing email chain is privileged. If emails are CC'd to a lawyer to evade discovery and the other side finds out, that's a big problem, even bigger problem if the other side is the feds.
    - colinmhayes 5y ago
      So what if you added an email header that said "P&C, any risks here?" to every email and had a lawyer who set up an auto reply that said "everything looking legal here"?
      - vkou 5y ago
        Then you better pray to whatever deity you hold dear that the judge presiding over this case, and the attorney litigating against you are both absolute idiots, who won't see what you are trying to do. Generally speaking, judges don't like it when you try to hack the law.
deleted 5y ago
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encryptluks2 5y ago
Funny how US government constantly shields itself from transparency, but demands it, going as far as to have banks report any transactions over $600 to the IRS. Rules for me, but not for thee.
- AlotOfReading 5y ago
  I'm not sure what corporations you're regularly interacting with, but the government is one of the most open bureaucracies I have to deal with. In principle, virtually anything that isn't national security or personal information can be FOIA'd for a nominal fee. If you don't like the treatment, there's usually a variety of processes to appeal or shortcut the bureaucracy, ranging from paperwork to senators. Compare to Google, where the only way to get a rationale seems to be complaining about it on HN and hoping the PM responds and the only semi-effective feedback mechanism is massive public outcry.
  - octoberfranklin 5y ago
    > virtually anything that isn't national security So basically the unimportant stuff. Like historical employee cafeteria menus and janitorial schedules. Gee, great.
    - otterley 5y ago
      That’s not true at all. A significant amount of deep journalistic reporting is based on information provided by the government in response to FOIA requests.
      - encryptluks2 5y ago
        Unless you want to listen to Presidential phone calls to other world oligarchs.
- judge2020 5y ago
  > any transactions over $600 to the IRS Pedantic but the change was that any P2P service has to give you a form to fill out if you send or receive more than $600 in a calendar year. Since 1970 with the Bank Secrecy Act, banks have had to report ACH/cash/wire deposits over $10,000 to the IRS and are at their own liberty to report anything lower.
advisedwang 5y ago
Just in December there was a similar case where Google was forced to turn over documents it had originally claimed privilege on in a separate (labour) case: https://www.businessinsider.com/google-anti-union-nlrb-project-vivian-2021-12 https://www.businessinsider.com/google-anti-union-nlrb-proje...
temp8964 5y ago
This reminds me this: At Least 27 Phones from Special Counsel’s Office Were Wiped before DOJ Inspector General Could Review Them https://news.yahoo.com/least-27-phones-special-counsel-212933558.html https://news.yahoo.com/least-27-phones-special-counsel-21293...
scim-knox-twox 5y ago
That's why I recommend Fastmail, they have "auto-purge": > Automatically delete messages after they have been in the folder for a certain amount of time, from 1 day to 1 year. Pinned messages are never deleted.
- jeffbee 5y ago
  Every email platform offers that feature. https://support.google.com/vault/answer/2535539?hl=en&ref_topic=3209998 https://support.google.com/vault/answer/2535539?hl=en&ref_to... https://docs.microsoft.com/en-us/microsoft-365/compliance/set-up-an-archive-and-deletion-policy-for-mailboxes?view=o365-worldwide https://docs.microsoft.com/en-us/microsoft-365/compliance/se...
DisjointedHunt 5y ago
Attorney Client Privilege is abused significantly at tech companies. Remember that the privilege is for a very narrow allowance of cases where the communication is directly between the client and the lawyer with the client requesting legal advice. Marking an entire group chat with 3000 people [A/C priv] does NOT make all content in the group magically invisible to subpeona.
notacoward 5y ago
When I worked at (pre-IBM) Red Hat, I was explicitly told not to do this, as it would undermine legitimate claims of A/C privilege. I also had one of my machines effectively impounded ("you can add data but don't delete any") for over a year because it might have contained information relevant to ongoing litigation. I wasn't even told what litigation that was, though it was almost certainly patent related, and AFAIK nobody ever looked for any information on that machine. I guess some companies just kind of take their responsibilities more seriously than others.

272 points by tareqak 5y ago

> false requests for legal advice," DOJ attorneys wrote in the brief, asking U.S. District Court Judge Amit Mehta to sanction Google and compel the disclosure of more documents. The US Government is 44% of GDP - with big plans to grow. Google is not the problem here.

Spooky23 5y ago

I’m sure they are right but it’s amusing in that government is the biggest abuser of this sort of thing.

drewda 5y ago

They sure like their email at Google. At most other organizations, sensitive email chains would be open to discovery but would just end by saying "call me" :)

mjevans 5y ago
Major corporations also often adopt a policy of automated record expunge after a given time. Sometimes that time is very short.
- dekhn 5y ago
  when I started at GOOG, email lived forever. Then at some point, supposedly document discovery was costing n*2 dollars for n accounts and this was some sort of justification for creating a 1-year and 5-year expunge (maybe I have the times off). I ended up losing a fair amount of my long-term correspondence (scientific stuff) because I didn't want to vault things indefinitely. What amazes me is that the leadership repeatedly puts these sorts of incriminating things in email after being repeatedly told not to.
  - droopyEyelids 5y ago
    I think of myself as someone who is relatively skeptical of authority, but even so it's hard to disabuse myself of the notion that company leadership is there due to meritocratic reasons. Just because they're VPs in the biggest company in the world doesn't mean they're actually smarter or more capable than a random person selected from the population at large. Some of them might be, but SOO many people are in their spots due to the accident of their birth and other random processes that happened afterwards.
    - dekhn 5y ago
      I wouldn't say any of the SVPs I met at Google during my era (probably 6-7 SVPs) that I thought any of them were dumb. And several were some of the smartest people I've met. But that's the problem with Google: INT 18, WIS 3.
      - yborg 5y ago
        >But that's the problem with Google: INT 18, WIS 3 This is the whole tech industry in a nutshell, not just Google.
      - omarfarooq 5y ago
        > INT 18, WIS 3. Pardon?
        niij 5y ago
        High intellect, low wisdom. The shorthand here is common in games where your character has certain capabilities/stats: intellect (int), strength (str), defence (def), etc.
        actually_a_dog 5y ago
        It's a D&D reference. Starting stats for (human) characters typically range from 3-18, corresponding to the range of 3 six sided dice. "INT 18" means "maximum normal human Intelligence." "WIS 3" means "lowest possible human Wisdom stat," where "Wisdom" roughly translates to "common sense."
- Spooky23 5y ago
  Depends on whether you are sued or are a sue-er. I used to be in the email biz, and spoke to attorneys whose retention preferences were 7 days and others who would like to keep email until the heat death of the universe.
  - dekhn 5y ago
    I decided it made more sense to move my scientific correspondence to personal gmail (I've not deleted any emails since I signed up in ~2005 or so) and decided not to give a fuck about my google email. if the company lost something useful because it aged it my email, that's google's problem, not mine.
    - deleted 5y ago
      [deleted]
- hirundo 5y ago
  Slack deletes posts older than a few weeks on their free account, and flogs longer term access as the principle feature of their paid account. But I assume some customers feel that Slack is asking them to pay for extended legal liability.
  - histriosum 5y ago
    Just FYI, I don't believe Slack deletes them. They just hide them. If I go from a free tier to paid, I believe my message history becomes available again.
Havoc 5y ago
>sensitive email chains would be open to discovery but would just end by saying "call me" :) Probably less common in tech than finance, but recording of 100% of calls for key people is quite common. In regularly in training sessions about random stuff that end up being A/V recorded since one random dude in the training has above requirement legally.

deleted 5y ago

[deleted]

deleted 5y ago

[deleted]

stefan_ 5y ago

Why on earth would we afford any sort of attorney-client privilege to a business entity? Maybe it's time to have another talk about what exactly the public is getting from this limited liability thing.

ggm 5y ago
A lot of the law depends on narrow specificity. I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. If you want to change this, be wary of the (law of) unintended consequences. A charge should be narrow and specific. If you get a wide warrant, then sure: all the words should be open to view. But if the problem is financial then the IPR mails are not relevant, its the finance mails you need to be shown. Hiding finance mails in IPR mails would be a crime probably. The warrant to finance probably includes these, by implication. Once you are required to present, its fair to incur a cost outcome of "how narrowly can we respond and not be in the wrong" Because we don't punish people for as-yet unknown crimes, in this process. Attorney-Client privilege goes to asking your Attorney about how narrow the responses can be, and still be legal. Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? I am not a lawyer. Find a lawyer to tear this line of reasoning apart, it is probably a low-bar goal.
- verve_rat 5y ago
  >I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. The point is: why? Corporate entities and individuals follow the same rules because we (read: societies, governments, parliaments) decided that would be the case. But is that the best outcome? Should we revisit that decision?
  - ggm 5y ago
    which is why I asked: > Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ?

efitz 5y ago

All the large tech companies train their employees how to request advice from counsel and use privileged and confidential email communication. I've never worked for Google but worked for two of the other MAGMAs and it was pretty standard. Nothing I saw about the training or common usage seemed suspicious; I think it's in the eye of the beholder. After several big companies got their internal email used against them in lawsuits, esp. antitrust lawsuits, they focused heavily on training employees how and when to discuss sensitive topics related to competition, e.g. "don't say exaggerated things like "we're going to kill the competition", etc. And the trainings emphasize being extremely accurate and precise, and not speculating as to legality unless you actually are a corporate counsel. They teach you to take such questions to corporate counsel, e.g. "We're thinking about doing X, what do you think?" on P&C email threads. I'm sure that some people could overuse this, but again, I didn't see anything suspicious, and I remember seeing one guy get called down for addressing email to corporate counsel as P&C and not actually asking a question. I'm sure in every org there are weasels who would try to misuse this, but I'd have to see more evidence before I would believe that this was cultural at Google.

BurningFrog 5y ago
When I joined Google in 2006, the message was "don't write anything in an email you don't want to see in a NYT headline". Good advice for all digital communications. You have to assume the authorities, and others, are listening.
- mistrial9 5y ago
  "You have to assume the authorities, and others are listening" doesnt this seem sort of outrageous to an outsider, since Google pioneered the practice of searching every user's emails? like, they dish it out but also hide their own ? Secondly the extreme and secretive legal agreement not to talk about your work, even years after leaving the company.. it seems Google got away with a lot, by virtue of "superpowers" that is objectionable for good reason, for the business community in general.
  - zdragnar 5y ago

paxys 5y ago

> "Google has explicitly and repeatedly instructed its employees to shield important business communications from discovery by using false requests for legal advice" Considering the DoJ is expecting to use these documents for their own case against Google, I don't see how they can argue that it was improper for the employees to get lawyers involved.

ceejayoz 5y ago
You can't just CC legal on pretty much everything to subvert regulatory action. If legal's openly ignoring these CCs, I don't see why attorney/client privilege should necessarily apply.
- mountainb 5y ago
  It doesn't apply. It's not even a clever workaround. It has to be a communication that requests or involves legal advice. If you just forward a public email to your lawyer or CC the attorney on normal business communication it is not privileged. If you forward such an email to the attorney and ask something like "thoughts? what are the risks here?" that ensuing email chain is privileged. If emails are CC'd to a lawyer to evade discovery and the other side finds out, that's a big problem, even bigger problem if the other side is the feds.
  - colinmhayes 5y ago
    So what if you added an email header that said "P&C, any risks here?" to every email and had a lawyer who set up an auto reply that said "everything looking legal here"?
    - vkou 5y ago
      Then you better pray to whatever deity you hold dear that the judge presiding over this case, and the attorney litigating against you are both absolute idiots, who won't see what you are trying to do. Generally speaking, judges don't like it when you try to hack the law.

deleted 5y ago

[deleted]

encryptluks2 5y ago

Funny how US government constantly shields itself from transparency, but demands it, going as far as to have banks report any transactions over $600 to the IRS. Rules for me, but not for thee.

AlotOfReading 5y ago
I'm not sure what corporations you're regularly interacting with, but the government is one of the most open bureaucracies I have to deal with. In principle, virtually anything that isn't national security or personal information can be FOIA'd for a nominal fee. If you don't like the treatment, there's usually a variety of processes to appeal or shortcut the bureaucracy, ranging from paperwork to senators. Compare to Google, where the only way to get a rationale seems to be complaining about it on HN and hoping the PM responds and the only semi-effective feedback mechanism is massive public outcry.
- octoberfranklin 5y ago
  > virtually anything that isn't national security So basically the unimportant stuff. Like historical employee cafeteria menus and janitorial schedules. Gee, great.
  - otterley 5y ago
    That’s not true at all. A significant amount of deep journalistic reporting is based on information provided by the government in response to FOIA requests.
    - encryptluks2 5y ago
      Unless you want to listen to Presidential phone calls to other world oligarchs.
judge2020 5y ago
> any transactions over $600 to the IRS Pedantic but the change was that any P2P service has to give you a form to fill out if you send or receive more than $600 in a calendar year. Since 1970 with the Bank Secrecy Act, banks have had to report ACH/cash/wire deposits over $10,000 to the IRS and are at their own liberty to report anything lower.

advisedwang 5y ago

Just in December there was a similar case where Google was forced to turn over documents it had originally claimed privilege on in a separate (labour) case: https://www.businessinsider.com/google-anti-union-nlrb-project-vivian-2021-12 https://www.businessinsider.com/google-anti-union-nlrb-proje...

temp8964 5y ago

This reminds me this: At Least 27 Phones from Special Counsel’s Office Were Wiped before DOJ Inspector General Could Review Them https://news.yahoo.com/least-27-phones-special-counsel-212933558.html https://news.yahoo.com/least-27-phones-special-counsel-21293...

scim-knox-twox 5y ago

That's why I recommend Fastmail, they have "auto-purge": > Automatically delete messages after they have been in the folder for a certain amount of time, from 1 day to 1 year. Pinned messages are never deleted.

jeffbee 5y ago
Every email platform offers that feature. https://support.google.com/vault/answer/2535539?hl=en&ref_topic=3209998 https://support.google.com/vault/answer/2535539?hl=en&ref_to... https://docs.microsoft.com/en-us/microsoft-365/compliance/set-up-an-archive-and-deletion-policy-for-mailboxes?view=o365-worldwide https://docs.microsoft.com/en-us/microsoft-365/compliance/se...

DisjointedHunt 5y ago

Attorney Client Privilege is abused significantly at tech companies. Remember that the privilege is for a very narrow allowance of cases where the communication is directly between the client and the lawyer with the client requesting legal advice. Marking an entire group chat with 3000 people [A/C priv] does NOT make all content in the group magically invisible to subpeona.

notacoward 5y ago

When I worked at (pre-IBM) Red Hat, I was explicitly told not to do this, as it would undermine legitimate claims of A/C privilege. I also had one of my machines effectively impounded ("you can add data but don't delete any") for over a year because it might have contained information relevant to ongoing litigation. I wasn't even told what litigation that was, though it was almost certainly patent related, and AFAIK nobody ever looked for any information on that machine. I guess some companies just kind of take their responsibilities more seriously than others.