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.

> 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.

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.

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.

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.

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.

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.

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?

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.

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.

Are the employees personally liable though?

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.

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.

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].

[1] https://www.bloomberg.com/opinion/articles/2022-09-28/the-de...

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!

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.

But it's a vague nebula. Stuff like whistleblower protections, retention laws, 'piercing the corporate veil'....

Corporations are just groups of people. Unless you're accusing a company of being ran by AGI.

1: https://en.wikipedia.org/wiki/Corporate_personhood#In_the_Un...

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.

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.

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.

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.

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.

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 nothing can be done about it.

If there were huge "unfair" advantages to being incorporated, then surely "normal" businesses would simply pay the modest fee to incorporate.

So this is something that’s almost exclusively going to harm criminal organizations by making them less efficient.

That sounds like a win win.

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.

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.)

I remember when Mark Cuban tried to make his CyberDust app.

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.)

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?

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.

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.

As Eric Schmidt once remarked to us, if companies have something they don’t want journalists to know maybe they shouldn’t do it in the first place.

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.

Doesnt work well when the Judge and/or Jury doesnt understand the matters at hand

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).

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.

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?

[1] https://support.google.com/vault/answer/2990828?

Would humanity be better off? Or are people stupider when they are thinking out loud in front of recording devices?

How much do the lawyers deserve to know?

Nothing IMO. They can look at the company's actions. There's no need to invade the privacy of individual employees.

If they were trying to confiscate my personal mobile that I use for work I will never go along with that.

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.

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.

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.

People look at me like I have two heads when I tell them that my work devices are for work things and personal devices are for personal things.

There are very rare exceptions to this rule.

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.

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.

> 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.

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.

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.

Or we could do the opposite and have corporate whistleblowers like the boeing ones mysteriously die off while everyone just makes jokes about it.

All of these "radical transparency" and "radical honesty" practices are just justifications for being lackadaisical about the nuances of human relations.

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.

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.

No need to single out Google.

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.

> 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.

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 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!”

On the other hand, humans do not like being watched and documented constantly - I think it is a burden to society's mental well-being.

I would not want to be constantly recorded in my team staff meetings, in office or in zoom.

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.

Does that work legally though? If it's not only sent to the lawyer then you can't really claim that it's privileged information.

This is a free long term loan. It's almost like corporations pay for the laws to be like this.

While heavily pushing Gchat to corporate customers.

At least you can't accuse them of getting high on their own supply.