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Well put another way - It's one thing to tell your employees not to break the law. That's good! It's another thing to tell your employees not to use a bunch

Well put another way - It's one thing to tell your employees not to break the law. That's good! It's another thing to tell your employees not to use a bunch of words while doing their job which implicate the firm in breaking laws they've been accused of breaking. It's almost like an admission of guilt or attempt to obfuscate. From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..". It's stupid and hubristic. Just like the other stuff that came out of GOOG execs sending emails telling people not to put stuff in emails, lol. Cmon guys.

shadowgovt 3y ago
That's certainly the legal theory that the DOJ is going to push. The counter argument that I'm sure Google will bring to the table is that (a) that advice was given in the context of helping engineers understand that legal definitions and vernacular definitions are different, and it is the nature of adversarial court systems that words they think they're using with one meeting can be taken out of context by an opponent in a court case, so think about what they are saying, and (b) all of the above is just facts and the government suppressing a corporation's right to state facts would be a clear and obvious violation of the First Amendment. But these are two legal arguments and it's hard to predict how the court will decide.
Closi 3y ago
Really good comparison! Imagine… “Rather than use words like ‘insider trading’ we should say ‘based on market research’”
blindriver 3y ago
> Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..". Well, I have. At a large well known tech company I used to work for, we were told not to use terms like "killing our competitors", "smoking them", etc. or any words that implied we had any dominance or monopoly in our industry. We even had a "War Room" undergo a name change. The reason is exactly the same as Google's, where they were worried about reporters using it to twist narratives or in discovery by lawyers who came across emails.
- prepend 3y ago
  Were you given training not to kill your competitors? Were you? I think my concern is that the important thing is not to do illegal things. If training focuses on just not sounding like you do illegal things instead of just not doing illegal things, that’s the problem.
  - derefr 3y ago
    I think the issue here is a corporate kind of mens rea. It’s seemingly fine under capitalism to incidentally kill your competitors in the process of making your customers happy. It’s not fine to set out with the explicit goal of killing your competitors. And so, any mention of your being aware that you’re killing your competitors, hints that you might be intentionally killing them while just feigning ignorance.
    - blindriver 3y ago
      Exactly this. Even though we were engaging in regular competition, us simply mentioning that we wanted to "kill them" or "wipe them out" could be falsely construed as us trying to use illegal means to do so, which we weren't. And that's the point. Lawyers can twist things written in emails to be whatever they want. People who say "if you're not doing anything illegal, then you have nothing to hide" has never been at the hands of a witch hunt. I have a friend who lived in the US on F1 and H1B for over 10 years and was banned from entering the US over jokes with her ex-bf about marrying for a green card.
      - eep_social 3y ago
        Yes. And discovery in these trials is performed via keyword matching so you have to assume that every email is going to end up on a giant projector screen in front of a jury who might not understand that Bob’s enthusiasm for destroying the competition is Bob’s quirky bombastic communication style rather than a business strategy.
        3y ago
caturopath 3y ago
> From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..". I got the same takeaway when I was at Google as when I was in the hedge fund space: be careful what you say, regulators and judges might not be very charitable. In both cases, the concept of something you say being in the New York Times was present for me. The Googlewide training and messaging when I was there did focus on not using anti-trust-triggering _language_ over the specific acts, but I don't think it's fair to interpret this as "Violate anti-trust regulations" but rather a recognition that the common fuck-up some random employee can make isn't to commit a material anti-trust violation, but to provide nasty evidence by writing a puffy email about "crushing the competition". Telling people to write emails about "making users happy" rather than "owning the market" is not telling people to behave badly. I don't know what you're doing in finance, but it's my understanding that folks who are actually involved in stuff where their job could look like insider trading probably do get subtler lines drawn than I ever sought (I was in systematic/program trading.) Places where doing my job well could be confused for something bad, e.g., tax optimization, we did discuss how to properly communicate in order to avoid misunderstanding if a regulator, court, or journalist ever read our communication.
- steveBK123 3y ago
  My experience is that funds & staff that do have exposure to opportunities for insider info because they talk to outsiders like (brokers, company execs & IR, research providers, etc) actually get even brighter lines & rigid boxes around them. For example - all emails to above go through compliance first & include a disclaimer that you are a market participant and do not wish to receive MNPI. Meetings with above have compliance sit in, etc. People are urged to self report if someone does volunteer something stupid to you that they shouldn't have, and then you sit out from trading it for some period, etc. They make it very clear that the upside/downside risk is asymmetric. Hey maybe you can cheat and make 10% more this year. Or you can go to prison for 10 years, lose your home, have your wife leave you, and never work in the industry again.
dataflow 3y ago
I can't speak to this particular situation, but your argument has "if you'll had nothing to hide then you would have nothing to fear" vibes. You don't seem to account for the possibility of a situation where an entity is not guilty, but gets in trouble anyway because of someone's words.
- steveBK123 3y ago
  No that's not it at all. If they are concerned about monopoly allegations, they should give anti-monopolistic-practices training to staff. Instead they are giving anti-monopolistic-language training to staff. You may not believe it, but no financial firm I've ever worked for gave me training on "don't use insider training language". All the training was emphatically that they did not want us to do it, it would destroy the company and destroy our lives explicitly. It was drilled into our heads with live talks, videos, handbooks, attestations, etc. This GOOG training seems to be like "how to pass a sobriety test" rather than "don't drunk drive".
  - jasonfarnon 3y ago
    Insider trading and anti-trust violations aren't comparable. It's pretty easy to tell someone not to trade on insider knowledge, and it's pretty easy for an employee with a little experience to tell when they are doing so. How do you tell employees not to engage in monopolistic behavior? Be less competitive? Don't push out products that too many people will like? I would say the basic issue is that anti-trust laws are entirely subjective, enforcement is usually politically motivated. Given this subjectivity, it makes more sense to care about appearances rather than some ill-defined "substance".
    - steveBK123 3y ago
      Anti trust isn't that opaque, it just hasn't been actively prosecuted for the last few decades. There's a ton of stuff that has been allowed to happen via consolidation, merger, or pure homegrown that simply hasn't been prosecuted because recent administrations had an alternate theory that monopolies are OK if it benefits consumers via lower prices. Tech gives out a lot of stuff free or where its cost is hard to directly measure. Tech also enjoyed bipartisan support for the last 20 years or so, but that has completely flipped over the last 4 years or so. We will likely see a lot of this stuff is no longer ignored.
1vuio0pswjnm7 3y ago
"First, Google wants to withhold from the public internal emails from more than 10 and up to 15 years ago. See Sept. 1, 2023 Hrg Tr. at 62-63, 65. DCN is highly skeptical that communications over a decade old could possibly interfere with Googles competitive business today and in the future. These emails would instead inform the public and press about practices that led to the government filing suit. Second, Google wants to withhold from the public certain provisions of its standard agreements, including definitions contained in such agreements, many of which were signed more than ten years ago. Id. at 56, 65-69. These agreements and definitions are foundational to the publics understanding of how Google established its dominant market position. Third, Google wants to clear the courtroom during the overwhelming majority of Googles examination of Apple witnesses, which could span several days. Id. at 69-70. There is substantial public interest in Googles deal with Apple and the termination of the agreement. There does not appear to be any good reason to close the trial completely for this testimony other than to shield Google and Apple from potential embarrassment." https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.690.0.pdf https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.22...
marcosdumay 3y ago
On the other hand, the Law should care only if your actions broke it, and not what kind of things you told somebody. (And if you exploited your monopoly completely by chance and got a couple of billions out of it, too bad, you are guilty anyway.) But until we have that, people will keep studying what they can and can't say.
sdwr 3y ago
> From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Not to be paranoid, but that's also how a bank that wanted people to insider trade would act. The idea is, you see the people who got caught, learn what they get caught for, and carve the apple just a little bit less than they did. A principled (naive) person imbibes the meaning "Don't do bad stuff", and an ambitious (sociopathic) person learns how to do it and what gets caught.
Affric 3y ago
This is a cultural issue in tech: “Politicians and regulators are always playing catch up. They are so dumb. We are creating the future” - some tech bro They don’t take society seriously. They don’t take the law seriously. At best they aren’t thinking about what they are saying. At worst they feel they are justified. Treat the law seriously. Don’t break the law. If you do those two things you will not need to send memos around to get people to use phrases which regulators will grep your comms and transcripts for.
bryanrasmussen 3y ago
>From a bank/fund perspective From a consulted a bank perspective - I noticed that the examples were pretty darn intuitive that hey this is obviously illegal but for some reason they wanted to have people sit through a multiple choice form and 45 minute tutorial on banking ethics to make sure nobody did it, and also that one of the negative outcomes that was mentioned in breaking the code of ethics was that the bank would experience problems in the media that would make the whole thing which seemed like a good idea not worth it.
xmcqdpt2 3y ago
I'm in a bank tech division and the training is mostly just "here is what antitrust looks like, contact legal and compliance if you ever feel like this apply to you." My guess is that if you contact them, they'll tell you in person what not to write in emails.
takinola 3y ago
The steelman argument for this type of instruction is that employees routinely make legal pronouncements that they are not competent to make. Imagine a scenario where a PM or engineer writes down in a memo something like "Option #1 is a breach of antitrust regulations" or "This violates EU privacy regulations". These are often well meaning statements but the reality is most (all?) of the time these people have no idea what they are talking about (which EU privacy regulation? what are the elements of the antitrust law and how does the action implicate each one? etc). However, a statement like this is highly prejudicial to a court as it indicates fore-knowledge of wrongdoing especially if it is made by someone fairly senior in the organization (eg middle management and higher). The better option is to pose the assertion as a question directed to your lawyer. This has the benefit of (a) attorney client privilege so the document cannot be discovered in court and, more importantly, (b) getting someone who has the relevant expertise to weigh in on whether what you think is in fact true so you can base your decision making on facts and not random persons opinion of the law. NB: Imagine your legal team weighing in on whether you should design your architecture as a microservice or monolith. That is the equivalent level of hubris for a non-legal person weighing in on the legal implications of particular courses of action.

shadowgovt 3y ago

That's certainly the legal theory that the DOJ is going to push. The counter argument that I'm sure Google will bring to the table is that (a) that advice was given in the context of helping engineers understand that legal definitions and vernacular definitions are different, and it is the nature of adversarial court systems that words they think they're using with one meeting can be taken out of context by an opponent in a court case, so think about what they are saying, and (b) all of the above is just facts and the government suppressing a corporation's right to state facts would be a clear and obvious violation of the First Amendment. But these are two legal arguments and it's hard to predict how the court will decide.

Closi 3y ago

Really good comparison! Imagine… “Rather than use words like ‘insider trading’ we should say ‘based on market research’”

blindriver 3y ago

> Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..". Well, I have. At a large well known tech company I used to work for, we were told not to use terms like "killing our competitors", "smoking them", etc. or any words that implied we had any dominance or monopoly in our industry. We even had a "War Room" undergo a name change. The reason is exactly the same as Google's, where they were worried about reporters using it to twist narratives or in discovery by lawyers who came across emails.

prepend 3y ago
Were you given training not to kill your competitors? Were you? I think my concern is that the important thing is not to do illegal things. If training focuses on just not sounding like you do illegal things instead of just not doing illegal things, that’s the problem.
- derefr 3y ago
  I think the issue here is a corporate kind of mens rea. It’s seemingly fine under capitalism to incidentally kill your competitors in the process of making your customers happy. It’s not fine to set out with the explicit goal of killing your competitors. And so, any mention of your being aware that you’re killing your competitors, hints that you might be intentionally killing them while just feigning ignorance.
  - blindriver 3y ago
    Exactly this. Even though we were engaging in regular competition, us simply mentioning that we wanted to "kill them" or "wipe them out" could be falsely construed as us trying to use illegal means to do so, which we weren't. And that's the point. Lawyers can twist things written in emails to be whatever they want. People who say "if you're not doing anything illegal, then you have nothing to hide" has never been at the hands of a witch hunt. I have a friend who lived in the US on F1 and H1B for over 10 years and was banned from entering the US over jokes with her ex-bf about marrying for a green card.
    - eep_social 3y ago
      Yes. And discovery in these trials is performed via keyword matching so you have to assume that every email is going to end up on a giant projector screen in front of a jury who might not understand that Bob’s enthusiasm for destroying the competition is Bob’s quirky bombastic communication style rather than a business strategy.
      - 3y ago

caturopath 3y ago

> From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..". I got the same takeaway when I was at Google as when I was in the hedge fund space: be careful what you say, regulators and judges might not be very charitable. In both cases, the concept of something you say being in the New York Times was present for me. The Googlewide training and messaging when I was there did focus on not using anti-trust-triggering _language_ over the specific acts, but I don't think it's fair to interpret this as "Violate anti-trust regulations" but rather a recognition that the common fuck-up some random employee can make isn't to commit a material anti-trust violation, but to provide nasty evidence by writing a puffy email about "crushing the competition". Telling people to write emails about "making users happy" rather than "owning the market" is not telling people to behave badly. I don't know what you're doing in finance, but it's my understanding that folks who are actually involved in stuff where their job could look like insider trading probably do get subtler lines drawn than I ever sought (I was in systematic/program trading.) Places where doing my job well could be confused for something bad, e.g., tax optimization, we did discuss how to properly communicate in order to avoid misunderstanding if a regulator, court, or journalist ever read our communication.

steveBK123 3y ago
My experience is that funds & staff that do have exposure to opportunities for insider info because they talk to outsiders like (brokers, company execs & IR, research providers, etc) actually get even brighter lines & rigid boxes around them. For example - all emails to above go through compliance first & include a disclaimer that you are a market participant and do not wish to receive MNPI. Meetings with above have compliance sit in, etc. People are urged to self report if someone does volunteer something stupid to you that they shouldn't have, and then you sit out from trading it for some period, etc. They make it very clear that the upside/downside risk is asymmetric. Hey maybe you can cheat and make 10% more this year. Or you can go to prison for 10 years, lose your home, have your wife leave you, and never work in the industry again.

dataflow 3y ago

I can't speak to this particular situation, but your argument has "if you'll had nothing to hide then you would have nothing to fear" vibes. You don't seem to account for the possibility of a situation where an entity is not guilty, but gets in trouble anyway because of someone's words.

steveBK123 3y ago
No that's not it at all. If they are concerned about monopoly allegations, they should give anti-monopolistic-practices training to staff. Instead they are giving anti-monopolistic-language training to staff. You may not believe it, but no financial firm I've ever worked for gave me training on "don't use insider training language". All the training was emphatically that they did not want us to do it, it would destroy the company and destroy our lives explicitly. It was drilled into our heads with live talks, videos, handbooks, attestations, etc. This GOOG training seems to be like "how to pass a sobriety test" rather than "don't drunk drive".
- jasonfarnon 3y ago
  Insider trading and anti-trust violations aren't comparable. It's pretty easy to tell someone not to trade on insider knowledge, and it's pretty easy for an employee with a little experience to tell when they are doing so. How do you tell employees not to engage in monopolistic behavior? Be less competitive? Don't push out products that too many people will like? I would say the basic issue is that anti-trust laws are entirely subjective, enforcement is usually politically motivated. Given this subjectivity, it makes more sense to care about appearances rather than some ill-defined "substance".
  - steveBK123 3y ago
    Anti trust isn't that opaque, it just hasn't been actively prosecuted for the last few decades. There's a ton of stuff that has been allowed to happen via consolidation, merger, or pure homegrown that simply hasn't been prosecuted because recent administrations had an alternate theory that monopolies are OK if it benefits consumers via lower prices. Tech gives out a lot of stuff free or where its cost is hard to directly measure. Tech also enjoyed bipartisan support for the last 20 years or so, but that has completely flipped over the last 4 years or so. We will likely see a lot of this stuff is no longer ignored.

1vuio0pswjnm7 3y ago

"First, Google wants to withhold from the public internal emails from more than 10 and up to 15 years ago. See Sept. 1, 2023 Hrg Tr. at 62-63, 65. DCN is highly skeptical that communications over a decade old could possibly interfere with Googles competitive business today and in the future. These emails would instead inform the public and press about practices that led to the government filing suit. Second, Google wants to withhold from the public certain provisions of its standard agreements, including definitions contained in such agreements, many of which were signed more than ten years ago. Id. at 56, 65-69. These agreements and definitions are foundational to the publics understanding of how Google established its dominant market position. Third, Google wants to clear the courtroom during the overwhelming majority of Googles examination of Apple witnesses, which could span several days. Id. at 69-70. There is substantial public interest in Googles deal with Apple and the termination of the agreement. There does not appear to be any good reason to close the trial completely for this testimony other than to shield Google and Apple from potential embarrassment." https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.690.0.pdf https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.22...

marcosdumay 3y ago

On the other hand, the Law should care only if your actions broke it, and not what kind of things you told somebody. (And if you exploited your monopoly completely by chance and got a couple of billions out of it, too bad, you are guilty anyway.) But until we have that, people will keep studying what they can and can't say.

sdwr 3y ago

> From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Not to be paranoid, but that's also how a bank that wanted people to insider trade would act. The idea is, you see the people who got caught, learn what they get caught for, and carve the apple just a little bit less than they did. A principled (naive) person imbibes the meaning "Don't do bad stuff", and an ambitious (sociopathic) person learns how to do it and what gets caught.

Affric 3y ago

This is a cultural issue in tech: “Politicians and regulators are always playing catch up. They are so dumb. We are creating the future” - some tech bro They don’t take society seriously. They don’t take the law seriously. At best they aren’t thinking about what they are saying. At worst they feel they are justified. Treat the law seriously. Don’t break the law. If you do those two things you will not need to send memos around to get people to use phrases which regulators will grep your comms and transcripts for.

bryanrasmussen 3y ago

>From a bank/fund perspective From a consulted a bank perspective - I noticed that the examples were pretty darn intuitive that hey this is obviously illegal but for some reason they wanted to have people sit through a multiple choice form and 45 minute tutorial on banking ethics to make sure nobody did it, and also that one of the negative outcomes that was mentioned in breaking the code of ethics was that the bank would experience problems in the media that would make the whole thing which seemed like a good idea not worth it.

xmcqdpt2 3y ago

I'm in a bank tech division and the training is mostly just "here is what antitrust looks like, contact legal and compliance if you ever feel like this apply to you." My guess is that if you contact them, they'll tell you in person what not to write in emails.

takinola 3y ago

The steelman argument for this type of instruction is that employees routinely make legal pronouncements that they are not competent to make. Imagine a scenario where a PM or engineer writes down in a memo something like "Option #1 is a breach of antitrust regulations" or "This violates EU privacy regulations". These are often well meaning statements but the reality is most (all?) of the time these people have no idea what they are talking about (which EU privacy regulation? what are the elements of the antitrust law and how does the action implicate each one? etc). However, a statement like this is highly prejudicial to a court as it indicates fore-knowledge of wrongdoing especially if it is made by someone fairly senior in the organization (eg middle management and higher). The better option is to pose the assertion as a question directed to your lawyer. This has the benefit of (a) attorney client privilege so the document cannot be discovered in court and, more importantly, (b) getting someone who has the relevant expertise to weigh in on whether what you think is in fact true so you can base your decision making on facts and not random persons opinion of the law. NB: Imagine your legal team weighing in on whether you should design your architecture as a microservice or monolith. That is the equivalent level of hubris for a non-legal person weighing in on the legal implications of particular courses of action.