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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 convers

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."

revelio 4y ago
Exactly, which is why this headline is misleading and the complaint will probably fail. It says: "Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" So what? That isn't deleting chat records, it's opting not to create them in the first place. Unless there was some unusually specific court order telling them they were mandated to generate new evidence specifically to convenience the plaintiffs, or the judges decide to create new obligations via case law, Google will simply point out that they aren't under any obligation to forcibly record every employee conversation about a topic from the moment a lawsuit is filed that might involve that topic. Their obligation only extends to letting plaintiffs do discovery over whatever documentary evidence was already created.
- vorpalhex 4y ago
  The reason why we have a human court system is that Judges don't have to be naive readers. The justice system doesn't do the: "Oh darn! You got me in a technicality! Not recording isn't the same as deleting!" Instead the judge is going to ask if it was obvious the information was required to be preserved and if it was, then why Google did not preserve it. "Ah but there was nothing to preserve because..." is not a clever retort, it's a fast track to a contempt charge. If you are under a hold, you are under a hold.
  - revelio 4y ago
    Justice systems routinely let people off on a technicality and this is far from being a technicality. Think through what you're proposing here - that the moment someone files a lawsuit against you (on any topic of their choosing regardless of how broad) you can no longer talk about that topic in person with anyone, but instead must do all conversations in recorded media? That's not a minor change to the law, creating a new obligation here would fundamentally alter the nature of all corporate communication in America and mandate vast new compliance infrastructures.
    - kelnos 4y ago
      When people get "let off on a technicality", that usually means that some kind of legal process was not followed correctly by the prosecution that invalidates their case. It does not mean that someone disregarding the spirit of the law can do whatever they want. I don't think this is completely open-and-shut, but a judge could absolutely hold someone in contempt for something like disabling chat logging when under a legal retention hold, especially if the normal state of things is that chat logging is turned on.
      - revelio 4y ago
        This thread is a mess because it hits on one of the fundamental ideological divisions between left and right. The left much prefers the idea of wise justices who do whatever they feel yields the "fairest" outcome in any given situation, with written law being more like suggestions than rules. The right prefers the idea of a neutral judicial branch that simply applies the law as written, even if it appears to yield suboptimal outcomes in any given case. For better or worse the USA implements the right wing view. There isn't any such thing as "spirit of the law", there's only law, and judges are relatively restrained when it comes to the creative invention of new law by (mis)reading existing law. In some parts of the world that isn't the case. The EU is notorious for writing ultra-vague laws and then allowing the ECJ to "discover" interpretations nobody had even suggested might exist at all, even if it radically reshapes society overnight. Note that FOSS Patents is written by a German guy so his expectations are calibrated based on the more left wing European courts. But this case is being held in the USA, so it seems reasonable to expect that not to happen here and for the law to be applied as is conventionally understood. Regardless of whether you like this or not, it's clearly untrue that it's "very difficult to imagine that Google will get away with what it's done" - that is hyperbole. Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.
  - Teandw 4y ago
    What. That's exactly how court works? How else do you think people and companies get away with doing a lot of bad things.
  - AlexCoventry 4y ago
    Are there bright lines about when you have to take explicit steps to record a conversation, if you're under a hold? For instance, I assume you usually don't have to record a verbal conversation? If that's the case, what's the practical difference between that and a conversation over a text-based system which defaults to not recording you? Just your presumed intent to abuse the system to work around the hold?
    - kelnos 4y ago
      > text-based system which defaults to not recording I believe the default is to record, though, no? Presumably disabling recording in that case could be seen as an attempt to circumvent a legal retention hold.
    - balderdash 4y ago
      I believe it’s that the courts order is along the lines of “all written communications, notes, documents, [etc.] pertaining to the matter [xxx] at hand must be preserved.” In this case, chat communications would fall under that order, and therefore steps need to be taken to ensure their preservation…
      - yallpendantools 4y ago
        But how can you say the conversation that happened off-record does pertain to the matter at hand? How can you preserve something that was not created in the first place?
        balderdash 4y ago
        You’re missing the point - by typing the conversation, it is a written conversation, which must be preserved if it is relevant. So to the extent you have a written conversation and don’t preserve it, you are violating the order. In other words, there is no way to have a WRITTEN off the record conversation
        vorpalhex 4y ago
        I am under a hold for all written records. A co-conspirator contacts me via email and I reply the following: "Please meet me under the sletchy bridge at 2am. Alone. Make sure nobody follows you. Don't wear a wire." Am I under a legal requirement to record in person meetings? No. Am I obviously attempting to avoid the hold? Yes. Guess what the legal charge is for attempting to avoid preserving records? You have not discovered some clever loophole.
  - gnicholas 4y ago
    When I was a corporate lawyer, I knew IP litigators who would workshop documents with clients in a transitory medium so there would be nothing to preserve. It was not seen as being inappropriate, just savvy.
    - jonstewart 4y ago
      When under a legal hold? And wouldn't it be privileged?
- kelnos 4y ago
  I think you misunderstand how the law works here, and how a judge will view Pichai's actions. The mere fact of having a text-based chat is itself a written record. Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. If they wanted to be truly off the record, they should have met in person or made a phone call.
  - yallpendantools 4y ago
    > Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. > "routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" Nah, I think that's too far. There are simply too many legitimate reasons for Google to turn history off. What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? You can only prove they had a sensitive conversation they wanted no record of, but you can't prove that that sensitive conversation is under the "legal hold" they were in. Even if all the context of the on-record chat seem to imply a crucial bit is coming up, you can't really prove the crucial bit did come up. It's all based on speculation. > If they wanted to be truly off the record, they should have met in person or made a phone call. So... `spichai: let's take this to an ephemeral chat` will be viewed negatively but `spichai: let's discuss this in person` is completely normal? I'm not buying it.
    - deleted 4y ago
      [deleted]
    - woodruffw 4y ago
      > What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? That's a matter for a court, or a court-appointed expert, to decide. You don't get to opt-out of discovery procedures by intuiting that the other party simply wouldn't be interested in what you have to say. (This raises all kinds of legitimate corporate IP concerns, which the courts have extensive experience handling.)
- jonstewart 4y ago
  This is a deliberate choice to create written records and not have them retained when under a legal hold. Good luck avoiding sanctions from the judge.
  - seanmcdirmid 4y ago
    There would be one heck of a ADA case if what you say is true. As long as you can only communicate in text and not voice or sign, you have no right to privacy.
    - ImPostingOnHN 4y ago
      * if you're under a retention order for precisely the records you appear to be trying to conceal
- justeleblanc 4y ago
  That's nonsense. Even if the system does not explicitly create something called a "record" by the developers of the app, the conversation is in a written form and stored somewhere (the server's RAM, or whatever). That's a record, however brief it is. If you destroy it, you've just destroyed a record. It's as simple as that.
  - teraflop 4y ago
    I wonder: if a meeting is held over Zoom (or whatever), and one participant turns on automatic captioning, does the resulting text that exists in their computer's memory constitute a "written record" that legally must be preserved?
    - kevinventullo 4y ago
      For that matter, why not the video itself?
    - cryptonector 4y ago
      Yes, automatic captioning is a problem. As long as the law deals with written records specially compared to voice calls, even automatic captioning is "written records". I've seen companies disable automatic captioning for this reason.
  - RHSeeger 4y ago
    How is that different from a VOIP call? The communication of the call is transformed into digital data. Are all VOIP calls considered recorded, and the fact that you didn't actually use the "save the recording" feature means that you broke law (if you're under a order not to destroy recordings)?
    - justeleblanc 4y ago
      The order is about written records.
      - 4y ago
TheSpiceIsLife 4y ago
> However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed There's no fundamental physical law proving this. There's no reason messaging shouldn't be considered ephemeral by default, and that recording a history of past messages is an optional extra. Programmatically what would you need to do? Not add the code that commits the message history to storage, and add a read on expiry feature. This tends to be how I configure all my online conversations if I have the option, obviously where I'm not intentionally posting in public with no delete option.
- lazyasciiart 4y ago
  This is a legal topic, and therefore the reason text messaging should not be considered ephemeral by default is that it has not been considered so. Fundamental physics or programming requirements have nothing to do with it.
  - TheSpiceIsLife 4y ago
    Do you mean to imply legal precedents are never overturned? Because that doesn't sound like an argument anyone would intentionally make.
    - lazyasciiart 4y ago
      > Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize. Assume good faith. I've always considered that to mean "assume basic sparks of intelligence", how about you?

revelio 4y ago

Exactly, which is why this headline is misleading and the complaint will probably fail. It says: "Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" So what? That isn't deleting chat records, it's opting not to create them in the first place. Unless there was some unusually specific court order telling them they were mandated to generate new evidence specifically to convenience the plaintiffs, or the judges decide to create new obligations via case law, Google will simply point out that they aren't under any obligation to forcibly record every employee conversation about a topic from the moment a lawsuit is filed that might involve that topic. Their obligation only extends to letting plaintiffs do discovery over whatever documentary evidence was already created.

vorpalhex 4y ago
The reason why we have a human court system is that Judges don't have to be naive readers. The justice system doesn't do the: "Oh darn! You got me in a technicality! Not recording isn't the same as deleting!" Instead the judge is going to ask if it was obvious the information was required to be preserved and if it was, then why Google did not preserve it. "Ah but there was nothing to preserve because..." is not a clever retort, it's a fast track to a contempt charge. If you are under a hold, you are under a hold.
- revelio 4y ago
  Justice systems routinely let people off on a technicality and this is far from being a technicality. Think through what you're proposing here - that the moment someone files a lawsuit against you (on any topic of their choosing regardless of how broad) you can no longer talk about that topic in person with anyone, but instead must do all conversations in recorded media? That's not a minor change to the law, creating a new obligation here would fundamentally alter the nature of all corporate communication in America and mandate vast new compliance infrastructures.
  - kelnos 4y ago
    When people get "let off on a technicality", that usually means that some kind of legal process was not followed correctly by the prosecution that invalidates their case. It does not mean that someone disregarding the spirit of the law can do whatever they want. I don't think this is completely open-and-shut, but a judge could absolutely hold someone in contempt for something like disabling chat logging when under a legal retention hold, especially if the normal state of things is that chat logging is turned on.
    - revelio 4y ago
      This thread is a mess because it hits on one of the fundamental ideological divisions between left and right. The left much prefers the idea of wise justices who do whatever they feel yields the "fairest" outcome in any given situation, with written law being more like suggestions than rules. The right prefers the idea of a neutral judicial branch that simply applies the law as written, even if it appears to yield suboptimal outcomes in any given case. For better or worse the USA implements the right wing view. There isn't any such thing as "spirit of the law", there's only law, and judges are relatively restrained when it comes to the creative invention of new law by (mis)reading existing law. In some parts of the world that isn't the case. The EU is notorious for writing ultra-vague laws and then allowing the ECJ to "discover" interpretations nobody had even suggested might exist at all, even if it radically reshapes society overnight. Note that FOSS Patents is written by a German guy so his expectations are calibrated based on the more left wing European courts. But this case is being held in the USA, so it seems reasonable to expect that not to happen here and for the law to be applied as is conventionally understood. Regardless of whether you like this or not, it's clearly untrue that it's "very difficult to imagine that Google will get away with what it's done" - that is hyperbole. Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.
- Teandw 4y ago
  What. That's exactly how court works? How else do you think people and companies get away with doing a lot of bad things.
- AlexCoventry 4y ago
  Are there bright lines about when you have to take explicit steps to record a conversation, if you're under a hold? For instance, I assume you usually don't have to record a verbal conversation? If that's the case, what's the practical difference between that and a conversation over a text-based system which defaults to not recording you? Just your presumed intent to abuse the system to work around the hold?
  - kelnos 4y ago
    > text-based system which defaults to not recording I believe the default is to record, though, no? Presumably disabling recording in that case could be seen as an attempt to circumvent a legal retention hold.
  - balderdash 4y ago
    I believe it’s that the courts order is along the lines of “all written communications, notes, documents, [etc.] pertaining to the matter [xxx] at hand must be preserved.” In this case, chat communications would fall under that order, and therefore steps need to be taken to ensure their preservation…
    - yallpendantools 4y ago
      But how can you say the conversation that happened off-record does pertain to the matter at hand? How can you preserve something that was not created in the first place?
      - balderdash 4y ago
        You’re missing the point - by typing the conversation, it is a written conversation, which must be preserved if it is relevant. So to the extent you have a written conversation and don’t preserve it, you are violating the order. In other words, there is no way to have a WRITTEN off the record conversation
      - vorpalhex 4y ago
        I am under a hold for all written records. A co-conspirator contacts me via email and I reply the following: "Please meet me under the sletchy bridge at 2am. Alone. Make sure nobody follows you. Don't wear a wire." Am I under a legal requirement to record in person meetings? No. Am I obviously attempting to avoid the hold? Yes. Guess what the legal charge is for attempting to avoid preserving records? You have not discovered some clever loophole.
- gnicholas 4y ago
  When I was a corporate lawyer, I knew IP litigators who would workshop documents with clients in a transitory medium so there would be nothing to preserve. It was not seen as being inappropriate, just savvy.
  - jonstewart 4y ago
    When under a legal hold? And wouldn't it be privileged?
kelnos 4y ago
I think you misunderstand how the law works here, and how a judge will view Pichai's actions. The mere fact of having a text-based chat is itself a written record. Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. If they wanted to be truly off the record, they should have met in person or made a phone call.
- yallpendantools 4y ago
  > Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. > "routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" Nah, I think that's too far. There are simply too many legitimate reasons for Google to turn history off. What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? You can only prove they had a sensitive conversation they wanted no record of, but you can't prove that that sensitive conversation is under the "legal hold" they were in. Even if all the context of the on-record chat seem to imply a crucial bit is coming up, you can't really prove the crucial bit did come up. It's all based on speculation. > If they wanted to be truly off the record, they should have met in person or made a phone call. So... `spichai: let's take this to an ephemeral chat` will be viewed negatively but `spichai: let's discuss this in person` is completely normal? I'm not buying it.
  - deleted 4y ago
    [deleted]
  - woodruffw 4y ago
    > What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? That's a matter for a court, or a court-appointed expert, to decide. You don't get to opt-out of discovery procedures by intuiting that the other party simply wouldn't be interested in what you have to say. (This raises all kinds of legitimate corporate IP concerns, which the courts have extensive experience handling.)
jonstewart 4y ago
This is a deliberate choice to create written records and not have them retained when under a legal hold. Good luck avoiding sanctions from the judge.
- seanmcdirmid 4y ago
  There would be one heck of a ADA case if what you say is true. As long as you can only communicate in text and not voice or sign, you have no right to privacy.
  - ImPostingOnHN 4y ago
    * if you're under a retention order for precisely the records you appear to be trying to conceal
justeleblanc 4y ago
That's nonsense. Even if the system does not explicitly create something called a "record" by the developers of the app, the conversation is in a written form and stored somewhere (the server's RAM, or whatever). That's a record, however brief it is. If you destroy it, you've just destroyed a record. It's as simple as that.
- teraflop 4y ago
  I wonder: if a meeting is held over Zoom (or whatever), and one participant turns on automatic captioning, does the resulting text that exists in their computer's memory constitute a "written record" that legally must be preserved?
  - kevinventullo 4y ago
    For that matter, why not the video itself?
  - cryptonector 4y ago
    Yes, automatic captioning is a problem. As long as the law deals with written records specially compared to voice calls, even automatic captioning is "written records". I've seen companies disable automatic captioning for this reason.
- RHSeeger 4y ago
  How is that different from a VOIP call? The communication of the call is transformed into digital data. Are all VOIP calls considered recorded, and the fact that you didn't actually use the "save the recording" feature means that you broke law (if you're under a order not to destroy recordings)?
  - justeleblanc 4y ago
    The order is about written records.
    - 4y ago

TheSpiceIsLife 4y ago

> However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed There's no fundamental physical law proving this. There's no reason messaging shouldn't be considered ephemeral by default, and that recording a history of past messages is an optional extra. Programmatically what would you need to do? Not add the code that commits the message history to storage, and add a read on expiry feature. This tends to be how I configure all my online conversations if I have the option, obviously where I'm not intentionally posting in public with no delete option.

lazyasciiart 4y ago
This is a legal topic, and therefore the reason text messaging should not be considered ephemeral by default is that it has not been considered so. Fundamental physics or programming requirements have nothing to do with it.
- TheSpiceIsLife 4y ago
  Do you mean to imply legal precedents are never overturned? Because that doesn't sound like an argument anyone would intentionally make.
  - lazyasciiart 4y ago
    > Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize. Assume good faith. I've always considered that to mean "assume basic sparks of intelligence", how about you?