Epic Games, others accuse Sundar Pichai of violating retention obligations(fosspatents.com)
fosspatents.com
Epic Games, others accuse Sundar Pichai of violating retention obligations
http://www.fosspatents.com/2023/03/us-states-epic-games-others-accuse.html
197 comments
Matt Levine has talked a few times about the wild scope increase of records retention in finance over the past century or so in Money Stuff. Not exactly the same as a legal hold, but analogous for similar reasons (recording everything has become cheaper).
> We have talked before about the SEC’s probe into how the employees of big banks discussed their work in text messages and chat apps like WhatsApp on their personal cell phones. The SEC has collected big fines from the biggest banks because, it has said, these chats violated the SEC’s recordkeeping requirements.
...
> From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.
> ...
> It really is wild that the SEC’s official position is now that it is illegal to “use unofficial communications to do things like cut deals, win clients or make trades.” “Conduct their communications about business matters within only official channels”! Imagine if that was really the rule! You can’t have lunch with a client and talk about business, or have beers with your colleagues and gripe about work, because that does not create a searchable archive for the SEC to review.
> Of course the SEC does not entirely mean this. Yet. But in like five years, technology — and the SEC’s interpretation of the rules — will have advanced to the point that banks will get fined if their bankers talk about business with clients on the golf course.
https://www.bloomberg.com/opinion/articles/2023-02-02/the-se...
> We have talked before about the SEC’s probe into how the employees of big banks discussed their work in text messages and chat apps like WhatsApp on their personal cell phones. The SEC has collected big fines from the biggest banks because, it has said, these chats violated the SEC’s recordkeeping requirements.
...
> From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.
> ...
> It really is wild that the SEC’s official position is now that it is illegal to “use unofficial communications to do things like cut deals, win clients or make trades.” “Conduct their communications about business matters within only official channels”! Imagine if that was really the rule! You can’t have lunch with a client and talk about business, or have beers with your colleagues and gripe about work, because that does not create a searchable archive for the SEC to review.
> Of course the SEC does not entirely mean this. Yet. But in like five years, technology — and the SEC’s interpretation of the rules — will have advanced to the point that banks will get fined if their bankers talk about business with clients on the golf course.
https://www.bloomberg.com/opinion/articles/2023-02-02/the-se...
>> It really is wild that the SEC’s official position is now that it is illegal to “use unofficial communications to do things like cut deals, win clients or make trades.” “Conduct their communications about business matters within only official channels”! Imagine if that was really the rule! You can’t have lunch with a client and talk about business, or have beers with your colleagues and gripe about work, because that does not create a searchable archive for the SEC to review.
The alternative interpretation is that now that it has become technologically feasible to record and search such the breadth of these conversations, it’s now illegal to try and conduct business via a channel that is opaque to the regulators.
Does having informal conversations have any downside for the companies other than knowing that regulators can pull the conversations information when analyzing if the banks broke regulations? This data isn’t available to their competitors or anything, right?
If that’s the case then as a citizen I’m totally behind the SEC enforcing these kinds of decisions. I’d like to make it a formal rule if it’s not already.
The alternative interpretation is that now that it has become technologically feasible to record and search such the breadth of these conversations, it’s now illegal to try and conduct business via a channel that is opaque to the regulators.
Does having informal conversations have any downside for the companies other than knowing that regulators can pull the conversations information when analyzing if the banks broke regulations? This data isn’t available to their competitors or anything, right?
If that’s the case then as a citizen I’m totally behind the SEC enforcing these kinds of decisions. I’d like to make it a formal rule if it’s not already.
They don’t apply it to voice communication, and it’s very feasible to store them. Ever since the Nixon tapes in the 70s, the government has shied away from applying this requirement to audio for some reason, maybe because it would come back to bite them as it did for Nixon.
>It really is wild that the SEC’s official position is now that it is illegal to “use unofficial communications to do things like cut deals, win clients or make trades.” “Conduct their communications about business matters within only official channels”! Imagine if that was really the rule! You can’t have lunch with a client and talk about business, or have beers with your colleagues and gripe about work, because that does not create a searchable archive for the SEC to review.
If we were talking about pretty much almost any other sector, that would indeed be wild, but considering how often and how much the banking sector has shown that they are willing to break every rule imaginable, they can't really complain when the hammer falls down on them, can they ? Act like a mafia, get treated like a mafia.
If we were talking about pretty much almost any other sector, that would indeed be wild, but considering how often and how much the banking sector has shown that they are willing to break every rule imaginable, they can't really complain when the hammer falls down on them, can they ? Act like a mafia, get treated like a mafia.
If you apply it to any other sector, I think there aren’t rules and regulators that issue large fines to enforce them. Eg if there were a ‘big tech regulator’ that had rules on record keeping like in finance, this google thing would be resulting in some regulatory action and big fine. I think it’s interesting to wonder what other industries might look like with regulators that are more like financial regulators.
> the banking sector has shown that they are willing to break every rule imaginable
I think the visible outcome of the banking sector being subject to lots of fines for technical rule violations is less a symptom of the banking sector being uniquely bad and a more a symptom of (a) just having more rules and (b) being under more scrutiny than other sectors.
I think the visible outcome of the banking sector being subject to lots of fines for technical rule violations is less a symptom of the banking sector being uniquely bad and a more a symptom of (a) just having more rules and (b) being under more scrutiny than other sectors.
Makes me very curious what the judge had to say about that opinion because this all makes sense, and I can't imagine that "a billion dollars in fines" was not fought over in court regardless of what they thought the odds of winning were (almost a no-brainer to blow ¼ million on lawyers for a chance of reducing or striking a 1000 million fine).
For anyone interested in the language, it’s called Rule 17a4, and you can see it here: https://www.law.cornell.edu/cfr/text/17/240.17a-4
It’s got a long list of things to keep, some specific and some very general.
It’s pretty detailed in terms of what and how you need to retain records, which is useful to implement, but includes enough language like “or analogous..” to make it flexible to enforce.
It’s got a long list of things to keep, some specific and some very general.
It’s pretty detailed in terms of what and how you need to retain records, which is useful to implement, but includes enough language like “or analogous..” to make it flexible to enforce.
Not a lawyer, but have been in orgs that need to comply with these regs: phone calls are recorded, and meeting minutes are recorded - sometimes with full transcriptions. Anyone "caught" having official conversations in unofficial meetings gets a frowning.
Yes, there was (and still is) always going to be "off the books" conversations. In the UK we're seeing news of our politicians using WhatsApp as a back-channel for comms they don't want appearing in official records. Business is undoubtedly using such technology too.
Yes, there was (and still is) always going to be "off the books" conversations. In the UK we're seeing news of our politicians using WhatsApp as a back-channel for comms they don't want appearing in official records. Business is undoubtedly using such technology too.
just so you understand what the basic rules are; as an individual you cannot be forced to provide testimony against yourself (edit:) in a criminal case, but you can in a civil proceeding.
But your written records are fair game as evidence, including your personal diary.* The right not to testify is really more about "so there's no incentive to torture you" more than it is a civilized notion that "we are gentlemen, let's have a level playing field, my secrets against yours". Then in addition to that, there are also document retention laws for documents that seem like they will be pertinent in the future, court orders during litigation that are even more restrictive, and corporations held to higher standards (there isn't generally going to be evidence of a person lying to himself, but corporations inducing employees to lie is more directly in the crosshairs)
*from a quick search "Even if a diary doesn't contain relevant evidence, courts will usually allow the side requesting to see it to make that determination for themselves. Particularly in cases where a party is alleging physical or emotional injuries, diaries are rather helpful in understanding what a person has experienced due to their injury. If a party kept a diary before the injury occurred, it can also help to show the contrast between life prior to and after the injury."
But your written records are fair game as evidence, including your personal diary.* The right not to testify is really more about "so there's no incentive to torture you" more than it is a civilized notion that "we are gentlemen, let's have a level playing field, my secrets against yours". Then in addition to that, there are also document retention laws for documents that seem like they will be pertinent in the future, court orders during litigation that are even more restrictive, and corporations held to higher standards (there isn't generally going to be evidence of a person lying to himself, but corporations inducing employees to lie is more directly in the crosshairs)
*from a quick search "Even if a diary doesn't contain relevant evidence, courts will usually allow the side requesting to see it to make that determination for themselves. Particularly in cases where a party is alleging physical or emotional injuries, diaries are rather helpful in understanding what a person has experienced due to their injury. If a party kept a diary before the injury occurred, it can also help to show the contrast between life prior to and after the injury."
Hoping you’re not a lawyer, or that you just in-artfully phrased that… because a person cannot be compelled to provide testimony against themself in (or relating to) an unadjudicated criminal matter pursuant to the 5th Amendment, but a person can absolutely be compelled to provide testimony against their interests in a civil matter so long as there are no possible criminal charges from whatever the testimony is. They can also be compelled to testify about a criminal offense that has been adjudicated. Case law has made it clear that the 5th Amendment is a narrow exception to the obligation to provide testimony to a court in civil matters. Also, invoking the 5th Amendment in a civil matter can, at times, be used against you, unlike in a criminal matter.
* this not legal advice and there lots of nuances to the 5th Amendment right to not testify.
* this not legal advice and there lots of nuances to the 5th Amendment right to not testify.
We have these weird evolving conventions.
We tend to increasingly use chat rather than email for contacting individuals or small groups about something. I guess I assume it's still all archived.
On the other hand, we don't really call people anymore. Certainly out of the blue. Much less talk in person.
But (I guess) if you want to have an off the record conversation you really need to have a call.
We tend to increasingly use chat rather than email for contacting individuals or small groups about something. I guess I assume it's still all archived.
On the other hand, we don't really call people anymore. Certainly out of the blue. Much less talk in person.
But (I guess) if you want to have an off the record conversation you really need to have a call.
Why are calls considered off the record? Wouldn't it be trivial for those to be logged too?
There are very strict federal and state laws around who can or cannot record phone calls and how admissible they are in court.
I know the not-so-strict laws in my jurisdiction, yet my servant of Google will never deign to permit my recording of any phone calls that go through its delicate body. If I wish to record a phone call, I'll need to put it on speaker and use a second device with mic to pick it up through an oxygen-rich fluid medium.
If anyone knows how to convince Android to change his mind, I'm "all ears", as they say.
* Android is obviously masculine gender, but I've named my phone "Kathryn". Hmm...
If anyone knows how to convince Android to change his mind, I'm "all ears", as they say.
* Android is obviously masculine gender, but I've named my phone "Kathryn". Hmm...
The laws that prohibit phone call recordings without consent is orthogonal to any evidence law that might prohibit their admission in a court case. The fact that they're phone calls has no bearing on admissibility AFAIK (please cite case law if you think I'm wrong).
IAAL, not providing legal advice etc.
IAAL, not providing legal advice etc.
Completely orthogonal to a business's employees' internal communication about that business.
New chat app idea: You "text" a locally running TTS model that uses your phone's modem to call the recipient and talks to the recpient, and replies (from another TTS model on the other side) are run through STT model and appear as text replies.
Yea, interesting, this is where we are.
But pushing this absurdity a bit further, what exactly makes it a voice call instead of a text chat? Either way, there are bits moving over wires.
Let's make a new "voice codec" that can trivially encode and decode to text (like Speak'n'spell phonemes) so that the bits on the wire technically represent some "audio data", but with much less overhead than the usual TTS.
But pushing this absurdity a bit further, what exactly makes it a voice call instead of a text chat? Either way, there are bits moving over wires.
Let's make a new "voice codec" that can trivially encode and decode to text (like Speak'n'spell phonemes) so that the bits on the wire technically represent some "audio data", but with much less overhead than the usual TTS.
The fact that calls occurred is sometimes logged in government. They're not typically recorded in general. (IANAL) Of course, if there were such a requirement, people would simply go to the next level of non-loggability.
Historically, written communications were recorded and had to be retained but other forms of communications did not. One of the things that's happened is relatively little of my professional communications is not recorded in some form these days.
Historically, written communications were recorded and had to be retained but other forms of communications did not. One of the things that's happened is relatively little of my professional communications is not recorded in some form these days.
It's kind of the swiss cheese model. People will slip up--it's very hard to conduct business in entirely off-the-record chats.
I like the recent example of a junior BP trader. He had an opportunity to meet a vice president of the company, and was trying to impress the VP with what the trader's team was doing. The VP responded along the lines of "Gosh, it's funny, what you're describing almost sounds like market manipulation, but it can't be, because I'm sure we wouldn't be doing that."
The junior BP trader then immediately called the senior trader on their office phone. All calls to the office phone are recorded. Throughout the call, the junior trader is persistently trying to ask if what they're doing is market manipulation, and the senior trader keeps cutting him off before he can complete a sentence.
Then the penny drops, the junior trader says, "Hey, I just remembered, I need to run," hangs up, and immediately calls the senior trader on his (unrecorded) cell phone.
_That_ call wasn't recorded, and when asked in court, neither the junior trader nor the senior trader could recall what they discussed.
The judge didn't seem to believe them. BP had to pay a bunch of $, and the junior trader now works somewhere else. :)
I like the recent example of a junior BP trader. He had an opportunity to meet a vice president of the company, and was trying to impress the VP with what the trader's team was doing. The VP responded along the lines of "Gosh, it's funny, what you're describing almost sounds like market manipulation, but it can't be, because I'm sure we wouldn't be doing that."
The junior BP trader then immediately called the senior trader on their office phone. All calls to the office phone are recorded. Throughout the call, the junior trader is persistently trying to ask if what they're doing is market manipulation, and the senior trader keeps cutting him off before he can complete a sentence.
Then the penny drops, the junior trader says, "Hey, I just remembered, I need to run," hangs up, and immediately calls the senior trader on his (unrecorded) cell phone.
_That_ call wasn't recorded, and when asked in court, neither the junior trader nor the senior trader could recall what they discussed.
The judge didn't seem to believe them. BP had to pay a bunch of $, and the junior trader now works somewhere else. :)
And I don't even have a business phone at this point. Nor does pretty much anyone I talk to. So any conversation (and a lot of texts) is over personal devices.
Perhaps it would be different at a financial firm.
Perhaps it would be different at a financial firm.
They’re considered off the record because the content of the call generally becomes hearsay inadmissible to prove the truth of what was said.
This is tangential, but relevant:
https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=...
https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=...
This headline is very misleading. He's not being accused of deleting them. He is being accused of not creating the chat records in the first place. Legally these are different things. There's no obligation to generate as much evidence as possible just in case one day you get sued by someone who might want it. Lit holds are just that, holds, you have to hold records you already have and not destroy them. The assumption in the system is that institutions generate records as a natural matter of course, and that's what the plaintiffs are being allowed to get access to. This complaint seems very likely to fail as a result, short of some sudden change in the standard understanding of record retention laws.
> He’s not being accused of deleting them. He is being accused of not creating the chat records in the first place.
Online chats exist as digital data ab initio, the issue is not creation (which had to happen for there to be a chat) but retention. The fact that the UI of a system may present things suggesting that “creating” a record is a separate act does not make it so.
Online chats exist as digital data ab initio, the issue is not creation (which had to happen for there to be a chat) but retention. The fact that the UI of a system may present things suggesting that “creating” a record is a separate act does not make it so.
It's perfectly possible to build a chat system that never creates any logs or recordings. Their chat system doesn't make recordings and then immediately delete them if you're chatting "off the record".
Now, plaintiffs lawyers will presumably try an argument like yours but if they succeed it's not obvious why it wouldn't immediately require all meetings of all employees to be videoed and recorded in perpetuity (as a company like Google always has hundreds of in flight lawsuits), nor is it obvious why that wouldn't extend to meetings where all the participants are in the same room and thus don't need a video call at all - perpetual 24/7 surveillance.
Now, plaintiffs lawyers will presumably try an argument like yours but if they succeed it's not obvious why it wouldn't immediately require all meetings of all employees to be videoed and recorded in perpetuity (as a company like Google always has hundreds of in flight lawsuits), nor is it obvious why that wouldn't extend to meetings where all the participants are in the same room and thus don't need a video call at all - perpetual 24/7 surveillance.
[deleted]
The law isn't consistent with how it treats communication, so it's sort of obvious why a change to how one sort of communication is treated wouldn't necessarily impact a different sort of communication.
You’re quibbling over the use of “creation” while ignoring the fact that “CEO deletes chats” is a very misleading headline.
The document says he set his own relevant chats to delete after 24 hours. I think we are quibbling over what "delete" means. When he set them to auto delete after 24 hours he was essentially deleting them. It's like saying I've never deleted anything- I move files to my recycle bin and then my computer does what it does.
Slightly different. Google Chat logs aren't direct p2p, they are most definitely logged records. Otherwise the messages wouldn't still be there when you log out and back in. However, they are tagged to be ephemeral and self-destruct after 24h.
So how would the law here work? If I delete my chat logs it's illegal. But if I create a feature that helps me delete my chat logs, it's not?
Honestly I have no idea.
So how would the law here work? If I delete my chat logs it's illegal. But if I create a feature that helps me delete my chat logs, it's not?
Honestly I have no idea.
Phone calls also aren't direct p2p and can be trivially recorded, so that's irrelevant. Google Chat does not retain messages when history is off, according to their own documentation:
https://support.google.com/vault/answer/7657597?hl=en#zippy=...
"Not covered: history off"
If it turns out their documentation is wrong and off-the-record chats aren't actually off the record then yes, you will be correct. But where is the evidence that it's the case? Google Apps is used by hundreds of thousands of companies and it has a sophisticated infrastructure for implementing retention limits and legal holds. Why are people here assuming that all that work has been done by incompetents?
https://support.google.com/vault/answer/7657597?hl=en#zippy=...
"Not covered: history off"
If it turns out their documentation is wrong and off-the-record chats aren't actually off the record then yes, you will be correct. But where is the evidence that it's the case? Google Apps is used by hundreds of thousands of companies and it has a sophisticated infrastructure for implementing retention limits and legal holds. Why are people here assuming that all that work has been done by incompetents?
I don't understand why you're comparing to phone calls here when the post you're replying to starts with "Google Chat logs aren't direct p2p, they are most definitely logged records. Otherwise the messages wouldn't still be there when you log out and back in." which is simply not true for voice calls, which are synchronous. Chats are asynchronous and store history in the client so you can scroll back (even if history is eventually purged client side on a timer or when you exit), and if chat history is enabled on the server, they store it there too.
A better point of comparison would be voicemails, but I don't think we're talking about those.
A better point of comparison would be voicemails, but I don't think we're talking about those.
> Google Chat logs aren't direct p2p, they are most definitely logged records. Otherwise the messages wouldn't still be there when you log out and back in.
That's not how p2p works. Signal messages are not p2p but the server doesn't need to store them because the clients store what they've received. Same for pop3 email clients which talk to the email server (not p2p to the sender). Quite a few systems work this way that are not peer to peer. Not sure if you meant p2p literally or if it was a shorthand for systems that don't work like Telegram that store everything on the server forever (in which case I guess it must seem like I am just being pedantic, which I'm not trying to be).
That's not how p2p works. Signal messages are not p2p but the server doesn't need to store them because the clients store what they've received. Same for pop3 email clients which talk to the email server (not p2p to the sender). Quite a few systems work this way that are not peer to peer. Not sure if you meant p2p literally or if it was a shorthand for systems that don't work like Telegram that store everything on the server forever (in which case I guess it must seem like I am just being pedantic, which I'm not trying to be).
No you're right, I was slightly worried about the usage of p2p and was expecting someone to correct me. Apologies for using the wrong word.
I was referring to the fact that self-destruct messages in Google Chat can be seen within 24h regardless of which device you log in with, this means it has to have been stored server side.
I was referring to the fact that self-destruct messages in Google Chat can be seen within 24h regardless of which device you log in with, this means it has to have been stored server side.
Signal has multi-device self-destruct also, even to a few seconds, but that doesn't mean that you can't see it anymore on your laptop if the phone in your pocket fetched it and your laptop was rebooting. The message is (as I understand it) addressed to both devices, probably Signal doesn't even need to know whether the recipients are one account or whether it's a group chat, or that the message has a self-destruct timer set on it. The server just stores messages until the client for which it was intended has fetched them (with some maximum, I guess). Google's chat could work the same, but I'm not sure we can know that. The server software is probably not open source.
If the law tells you "if you delete any of your text communications relative to this case I will slap you" and you either:
* Make text communications and manually delete them after
* Make text communications through a channel that you yourself set to delete after
* Try to take the piss out of the law and say on your text communication "let's talk about this subject that I definitely have to record all my texts for in person so I don't have to send texts"
should you really be surprised when the law slaps the shit out of you ? If there's one thing it hates, it's being taken for a fool.
* Make text communications and manually delete them after
* Make text communications through a channel that you yourself set to delete after
* Try to take the piss out of the law and say on your text communication "let's talk about this subject that I definitely have to record all my texts for in person so I don't have to send texts"
should you really be surprised when the law slaps the shit out of you ? If there's one thing it hates, it's being taken for a fool.
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> The newly produced Chats reveal a company-wide culture of concealment coming from the very top, including CEO Sundar Pichai, who is a custodian in this case. In one Chat, Mr. Pichai began discussing a substantive topic, and then immediately wrote: “[redacted]” Then, nine seconds later, Mr. Pichai [redacted]. When asked under oath [redacted]"
Sounds like he deleted them to me.
Sounds like he deleted them to me.
You don't understand what you are talking about, yet you keep making more comments.
Chats in their messenger program are written records that need to be retained. Even in their magic "off the record mode", Google retained those messages for 24h.
Chats in their messenger program are written records that need to be retained. Even in their magic "off the record mode", Google retained those messages for 24h.
I see Florian's back.
For those who don't know, he's always been aggressively anti-google. Enough so that it became an issue in Oracle vs Google as to whether Oracle was paying him. In fact, they were: https://www.bbc.com/news/technology-19181172
You can judge for yourself whether he disclosed it properly.
If you go back and read his endless posts about how Google was going to lose and how Oracle was clearly in the right and ..., and then compare it to the case outcome, it shows you all you need to know.
In this case, it's pretty simple. If someone ordered Google to save specific people's chats, and they didn't, or their is a reasonable anticipation of litigation, they may get in trouble. Otherwise, they won't.
Epic's claims were ... not crazy at least.
The DOJ, at least what i read of them, were a little far out there in a number of cases They basically were claiming that because they started investigating Google 2019, Google should have saved the chats of 100k+ employees for 4 years.
For those who don't know, he's always been aggressively anti-google. Enough so that it became an issue in Oracle vs Google as to whether Oracle was paying him. In fact, they were: https://www.bbc.com/news/technology-19181172
You can judge for yourself whether he disclosed it properly.
If you go back and read his endless posts about how Google was going to lose and how Oracle was clearly in the right and ..., and then compare it to the case outcome, it shows you all you need to know.
In this case, it's pretty simple. If someone ordered Google to save specific people's chats, and they didn't, or their is a reasonable anticipation of litigation, they may get in trouble. Otherwise, they won't.
Epic's claims were ... not crazy at least.
The DOJ, at least what i read of them, were a little far out there in a number of cases They basically were claiming that because they started investigating Google 2019, Google should have saved the chats of 100k+ employees for 4 years.
Skip the article and read the briefs. I hadn't even noticed Florian was the author.
I read them before.
Epic's seemed reasonable.
DOJ seemed somewhat unhinged.
Or at least, fairly scattershot.
In any case, everyone in a case like this will always claim the other side should have disclosed something more, or ... So i take it all with a grain of salt.
In any case, everyone in a case like this will always claim the other side should have disclosed something more, or ... So i take it all with a grain of salt.
It’s worth noting that this is apparently deliberate behavior in Google’s legal hold mechanism:
https://support.google.com/vault/answer/7664657
> What data is protected by a hold
> Chat: On-the-record (history on) Google Chat messages.
…
> Holds override retention rules. If a retention rule is set to purge data at the end of the retention period, data on hold isn't purged until the hold is removed.
So Google build a system where, if you set it to delete data after a set time, that data will still be retained if subject to a legal hold, except for off-the-record chats.
This stinks. If I were a judge, I would not be impressed.
https://support.google.com/vault/answer/7664657
> What data is protected by a hold
> Chat: On-the-record (history on) Google Chat messages.
…
> Holds override retention rules. If a retention rule is set to purge data at the end of the retention period, data on hold isn't purged until the hold is removed.
So Google build a system where, if you set it to delete data after a set time, that data will still be retained if subject to a legal hold, except for off-the-record chats.
This stinks. If I were a judge, I would not be impressed.
I have no idea about the subject, so can somebody explain to me why can two people at a company talk to each other without turning on any recording device but can't do that legally using text? That is if my understanding is correct.
Lawyers, legislators, and courts are all old or old-fashioned people who use phones and in-person meetings a lot. So, conveniently, there is a special historical exemption for phone calls and in-person meetings.
It's more or less inertia. At some point the legal situation for each practice was evaluated and established and here we are.
Chats probably got rolled into rules established for email.
Chats probably got rolled into rules established for email.
> Chats probably got rolled into rules established for email.
And emails I think in turn got rolled into the rules established for "documents"?
And emails I think in turn got rolled into the rules established for "documents"?
Interoffice memoranda!
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Google goes out its way to move conversations to chat, and reduces retention periods of chat, even nuking chats with history enabled. Email and calendar is dumped after 18 months. Internal training strongly recommends face to face and video meetings for anything that might arouse suspicions of illegality. The best thing for Google, shareholders and the employees were if it were split up.
Sundar is not a leader, he is a substitute teacher. Clown show fueled by too much money.
Sundar is not a leader, he is a substitute teacher. Clown show fueled by too much money.
If you are making sch wild claims, atleast do it without an anonymous account. Otherwise your claims are just dubious.
Why can't they have a chat room w/o record keeping? Why can't I?
Phone call w/o recording, In person w/o recording, why can't there be a chat room w/o recording?
It seems absurd you wouldn't be allowed to do this because it's a "different medium". The flip side would be you must have a voice recording device on you at all times, 100%. Or, if I write a note in disappearing ink, it's illegal. It's not destruction of evidence when the medium itself is not setup for retention.
I'm not trying to defend Google vs Epic vs US - it just feels like we're willing to shoot ourselves in the foot w/ specific freedoms just to fight them.
Phone call w/o recording, In person w/o recording, why can't there be a chat room w/o recording?
It seems absurd you wouldn't be allowed to do this because it's a "different medium". The flip side would be you must have a voice recording device on you at all times, 100%. Or, if I write a note in disappearing ink, it's illegal. It's not destruction of evidence when the medium itself is not setup for retention.
I'm not trying to defend Google vs Epic vs US - it just feels like we're willing to shoot ourselves in the foot w/ specific freedoms just to fight them.
"Why can't they have a chat room w/o record keeping? Why can't I?"
It turns out when a company is big enough to generate billions in revenue yearly or has tens of thousands of employees, the laws governing it are different from the laws governing an individual! This may be difficult to reason about since Corporations Are People(tm) but we apply special rules to them because they have more power than a real person.
More seriously, one good reason to require reasonable record retention in big companies, is that if multiple employees at a company collude, they can do irreparable harm to others in a way that a single individual cannot.
Also note that in some cases as an individual you could also be compelled to retain records, like if you're under a subpoena, afaik.
It turns out when a company is big enough to generate billions in revenue yearly or has tens of thousands of employees, the laws governing it are different from the laws governing an individual! This may be difficult to reason about since Corporations Are People(tm) but we apply special rules to them because they have more power than a real person.
More seriously, one good reason to require reasonable record retention in big companies, is that if multiple employees at a company collude, they can do irreparable harm to others in a way that a single individual cannot.
Also note that in some cases as an individual you could also be compelled to retain records, like if you're under a subpoena, afaik.
> More seriously, one good reason to require reasonable record retention in big companies, is that if multiple employees at a company collude, they can do irreparable harm to others in a way that a single individual cannot.
This doesn't really address my concern. Why is it different to have a phone call or sitting in a meeting room, or a zoom meeting (with no recording) and doing the same thing vs doing it in chat that does not record?
Why is using snapchat as a company consider "evasive" and is punishable?
We're saying our freedom to have an unrecordable chat is worth giving up. A really similar fight is the encryption backdoors for chat.
This doesn't really address my concern. Why is it different to have a phone call or sitting in a meeting room, or a zoom meeting (with no recording) and doing the same thing vs doing it in chat that does not record?
Why is using snapchat as a company consider "evasive" and is punishable?
We're saying our freedom to have an unrecordable chat is worth giving up. A really similar fight is the encryption backdoors for chat.
Does an obligation to preserve electronic communication also mean that all communication has to be done electronically? Having sensitive conversations in person or on the phone – specifically so that they aren't preserved or leaked – is how most businesses (and governments and other institutions) operate. This is seen as conventional wisdom, not some nefarious plot.
No, there’s no obligation to memorialize everything in writing. But it’s a two way street. If a conversation is important enough, the parties also have incentives to write it down (to avoid recanting or conveniently forgetting or misunderstanding important terms).
In court, testimonial evidence is usually presented under oath, under penalty of perjury. If a company is subverting recording information by only discussing sensitive items in person, a good lawyer will put multiple witnesses on the stand, ask them all the same questions about the sensitive topic, then poke holes in the inconsistencies and see who cracks first on the witness stand. It might be hard to get someone to disclose the sensitive subject, but it’s rather easy to catch someone in a lie or a cover up. That’s usually good enough.
In court, testimonial evidence is usually presented under oath, under penalty of perjury. If a company is subverting recording information by only discussing sensitive items in person, a good lawyer will put multiple witnesses on the stand, ask them all the same questions about the sensitive topic, then poke holes in the inconsistencies and see who cracks first on the witness stand. It might be hard to get someone to disclose the sensitive subject, but it’s rather easy to catch someone in a lie or a cover up. That’s usually good enough.
No, there’s no obligation.
But not retaining records when under a legal hold can be very bad. The judge can impose sanctions/fines, and of course it can color the rest of the case and bias the jury against you.
But not retaining records when under a legal hold can be very bad. The judge can impose sanctions/fines, and of course it can color the rest of the case and bias the jury against you.
Interesting q. Like there’s an obligation to create electronic communication records.
Would going for a coffee or walking meeting be in bad faith?
Would going for a coffee or walking meeting be in bad faith?
I'm not sure which side I'm on actually. Do we really want to be able to give the governments the right to restrict our ability to not record things if they are done in chat (as opposed to encrypted phone call)?
I know that Sundar should be the ,,bad guy'' here, but I think this is a very different case from deleting past data selectively.
I know that Sundar should be the ,,bad guy'' here, but I think this is a very different case from deleting past data selectively.
It seems obvious to me that we shouldn't draw a special distinction between chats and emails. In practice most chat clients give you lots of email-like functionality unless you go out of your way to configure them not to - timestamped history, search, archival of attached images, etc. While chat is "realtime" it's often used asynchronously just like email, and it's possible to send emails in near realtime if you have notifications turned on.
I would personally hope that if someone is obligated to retain records, turning on an 'auto-delete' for any kind of record would be strongly discouraged, regardless of whether it's chats, emails, voicemails, etc. They could always just talk in person, then there's no recording to delete.
I would personally hope that if someone is obligated to retain records, turning on an 'auto-delete' for any kind of record would be strongly discouraged, regardless of whether it's chats, emails, voicemails, etc. They could always just talk in person, then there's no recording to delete.
Just remember that in times of WFH this means that employees working from home now have every single personal conversation, every sentence and every word recorded forever to be used against them in any HR or other legal case.
You've codified total workplace surveillance to the extent that makes Google look amateurish.
You've codified total workplace surveillance to the extent that makes Google look amateurish.
Workplace slack/chat has introduced an interesting change. Prior to this, these types of interactions would primarily happen in voice conversations: face to face, on the phone, maybe videoconference. And none of those media are generally retained or discoverable
The switch to chat has had the unplanned consequence of making every routine interaction recorded and discoverable. It makes sense that is causing some strange and unfortunate behavior on the part of execs. Every routine conversation with a colleague is now effectively happening on the witness stand.
I'm not saying Pichai was right to delete chats or avoid retention. I am just saying that discoverability of communications in the workplace has exploded as we transition to chat communications, and we need to figure out how that's going to work in the context of litigation
The switch to chat has had the unplanned consequence of making every routine interaction recorded and discoverable. It makes sense that is causing some strange and unfortunate behavior on the part of execs. Every routine conversation with a colleague is now effectively happening on the witness stand.
I'm not saying Pichai was right to delete chats or avoid retention. I am just saying that discoverability of communications in the workplace has exploded as we transition to chat communications, and we need to figure out how that's going to work in the context of litigation
If you destroy evidence civil procedure allows the court to consider the evidence to have been as detrimental as possible to your case. It often means you automatically lose.
That’s for us plebes anyway, how that translates to these megacorps the “justice” system is there to serve I’m not sure.
That’s for us plebes anyway, how that translates to these megacorps the “justice” system is there to serve I’m not sure.
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That’s a huge fuckup. If you’re going to be an evil corporation destroying evidence then why are you even using electronic communication in the first place.
I don’t see how they can possibly win if they’re that openly destroying records.
I don’t see how they can possibly win if they’re that openly destroying records.
Google inconveniences the entire company by defaulting to 24hrs chat retention so they can avoid sharing sensitive info in litigation (frustrating countless employees who would have needed to refer to the chat message from yesterday about simple CLI commands/instructions etc) while getting hit by a lawsuit for intentionally purging history. Classic Google.
You seem to be assuming Google will lose. Seems more likely that they will win and the article author is wrong when he says
"From the outside it appears very, very difficult to imagine that Google will get away with what it's done."
There is no law compelling you to write down every word, thought or discussion that takes place in the office. Google was subject to litigation holds. That means you can't destroy evidence if it might be relevant, it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? The author's inability to imagine Google's lawyers successfully making this argument reflects poorly on their imaginative skills, not Google.
"From the outside it appears very, very difficult to imagine that Google will get away with what it's done."
There is no law compelling you to write down every word, thought or discussion that takes place in the office. Google was subject to litigation holds. That means you can't destroy evidence if it might be relevant, it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? The author's inability to imagine Google's lawyers successfully making this argument reflects poorly on their imaginative skills, not Google.
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."
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.
"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.
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.
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.
If you are under a retention order, yes, you can get in trouble.
Epic has some reasonable arguments there when i read it. I thought actually some of this was already resolved in Epic's favor, and some in Google's, and they were only trying to figure out sanctions or something. It's a complex case (well set of cases, really) so i don't remember all of the state. I think it's that their is one in DC where they are trying to decide on the motion, and one in California where they are trying to decide on the penalty.
The DOJ's argument, meanwhile, or at least part of it, was not about retention but about reasonable anticipation of litigation and coverage.
They basically were arguing (again, in part), that since they started investigation in 2019, Google should have saved all chats from all employees since then.
That particular argument seems unlikely to fly. A more targeted argument might stand a better chance, but when they argue crazy things, it doesn't help convince a judge that the rest of your argument has merit.
These sorts of arguments always get thrown around anyway. In litigation this large, everyone claims everyone should have disclosed something more, or saved something, or ...
Sometimes they win, sometimes they lose.
That doesn't mean if someone did something wrong they shouldn't get sanctioned, but like I said, it's not uncommon.
It actually used to be worse. Before some rule changes about 2 decades ago, people used to end up spending more time arguing about sanctioning each other than the actual case took, and trying to get money for it.
It's more reasonable now, but yeah.
Epic has some reasonable arguments there when i read it. I thought actually some of this was already resolved in Epic's favor, and some in Google's, and they were only trying to figure out sanctions or something. It's a complex case (well set of cases, really) so i don't remember all of the state. I think it's that their is one in DC where they are trying to decide on the motion, and one in California where they are trying to decide on the penalty.
The DOJ's argument, meanwhile, or at least part of it, was not about retention but about reasonable anticipation of litigation and coverage.
They basically were arguing (again, in part), that since they started investigation in 2019, Google should have saved all chats from all employees since then.
That particular argument seems unlikely to fly. A more targeted argument might stand a better chance, but when they argue crazy things, it doesn't help convince a judge that the rest of your argument has merit.
These sorts of arguments always get thrown around anyway. In litigation this large, everyone claims everyone should have disclosed something more, or saved something, or ...
Sometimes they win, sometimes they lose.
That doesn't mean if someone did something wrong they shouldn't get sanctioned, but like I said, it's not uncommon.
It actually used to be worse. Before some rule changes about 2 decades ago, people used to end up spending more time arguing about sanctioning each other than the actual case took, and trying to get money for it.
It's more reasonable now, but yeah.
> The mere fact of having a text-based chat is itself a written record.
But it doesn't mean it was a "recorded" record, in the same way that having a conversation over the phone necessarily means it was recorded. Sure, in both cases there is "a recording" because the communication needs to be recorded in order to send it. But there's not a "recording" in the sense that it was saved somewhere to be available later.
In what way is an unrecorded text conversation different than in unrecorded voice conversation?
But it doesn't mean it was a "recorded" record, in the same way that having a conversation over the phone necessarily means it was recorded. Sure, in both cases there is "a recording" because the communication needs to be recorded in order to send it. But there's not a "recording" in the sense that it was saved somewhere to be available later.
In what way is an unrecorded text conversation different than in unrecorded voice conversation?
There's no such thing as an "unrecorded" text conversation, since it has to persist for some time on some media for longer than an ephemeral period in order for its intended recipients to receive the communication. The same is not true for voice or video.
No, the same is true. There are various buffers holding voice and video frames that are stored, and then erased/overwritten many times over the course of the conversation.
> for longer than an ephemeral period
Reading comprehension is an essential skill in litigation and in legal practice in general.
Reading comprehension is an essential skill in litigation and in legal practice in general.
Wait, because it goes through a computer it has to be retained? Then why wouldn’t that apply to voice as well as text, so all phone conversations (which definitely go through computers these days) have to be retained as well? Or is text some sort of sacred thing that has to be recorded and stored forever, while voice and video calls are somehow exempt from that requirement? Where does American law point out special status for text and not for other signals?
The law hasn't completely caught up with technology here, but in general, "records" refer to written documents since that's how businesses have traditionally communicated when it comes to decisionmaking. In the eyes of many judges, text chat is viewed as merely a less formal, more spontaneous, and append-only version of writings, and therefore records. Also, for chat to work, it has to persist beyond when it was written for some amount of time so that people can see it.
Voice and video, on the other hand, don't share that property: once said or viewed, you either heard the message, or you didn't. It is not ordinarily recorded or stored for any length of time. Of course, if a court ordered you to create voice or video recordings of video or audioconferences, you might be forced to comply. (I'm not sure what the law is here, but in a civil case, if the opposing party paid for the storage, the court might be more inclined to issue such an order, as long as it's not unduly burdensome.)
Voice and video, on the other hand, don't share that property: once said or viewed, you either heard the message, or you didn't. It is not ordinarily recorded or stored for any length of time. Of course, if a court ordered you to create voice or video recordings of video or audioconferences, you might be forced to comply. (I'm not sure what the law is here, but in a civil case, if the opposing party paid for the storage, the court might be more inclined to issue such an order, as long as it's not unduly burdensome.)
> 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.
> "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.
> 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.)
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.)
But in this case, an "irrelevant topic" can range from something exclusively Google's business (like details of a new product) to something uber-mundane or even personal.
So, really, unless the legal hold on Google is a blanket, encompassing order to preserve all internal comms, I find it difficult to be objectively certain they are at fault here.
So, really, unless the legal hold on Google is a blanket, encompassing order to preserve all internal comms, I find it difficult to be objectively certain they are at fault here.
I think you're extending this too far, beyond the facts available: it sounds like a few companies have identified a specific policy within Google, one that seems to exist primarily to render discovery impossible.
They're not asking a court to impose onerous or abnormal preservation mechanisms, as evidenced by no other company of Google's size or scope deleting all messages every 24 hours.
They're not asking a court to impose onerous or abnormal preservation mechanisms, as evidenced by no other company of Google's size or scope deleting all messages every 24 hours.
Caveat: I did not read the embedded pdfs but I did read the article, and nothing there even alludes to anything like a retention policy.
Even the wording of the accusation does not even imply a policy:
> 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
Routinely opted is not a policy. A policy is formal, not an option you routinely take.
I'll wager even the best lawyers will be hard-pressed to prove this routine is primarily to render discovery impossible. In fact, on face value alone it will be hard to objectively prove any purpose to this, unless more info/evidence/data/witnesses come up.
The text that follows my quote
> they did so even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation.
makes assumptions that you can only speculate on, not prove. Sure, they were discussing topics covered by the litigation and then pivoted to private chat within nine seconds. Does it follow that the part of the conversation they moved off-record (and hence we are not privy to) is also definitely covered by litigation and could affect the outcome of the trial? Not necessarily (although likely, alas courts don't settle for likely).
Even the wording of the accusation does not even imply a policy:
> 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
Routinely opted is not a policy. A policy is formal, not an option you routinely take.
I'll wager even the best lawyers will be hard-pressed to prove this routine is primarily to render discovery impossible. In fact, on face value alone it will be hard to objectively prove any purpose to this, unless more info/evidence/data/witnesses come up.
The text that follows my quote
> they did so even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation.
makes assumptions that you can only speculate on, not prove. Sure, they were discussing topics covered by the litigation and then pivoted to private chat within nine seconds. Does it follow that the part of the conversation they moved off-record (and hence we are not privy to) is also definitely covered by litigation and could affect the outcome of the trial? Not necessarily (although likely, alas courts don't settle for likely).
We are not talking about an ordinary situation. We’re talking about a situation where Google has been placed under a retention order because of a lawsuit.
This is not gonna work out well for Google at all because this kind of BS really pisses judges off and also looks really bad to juries if it makes it that far.
This is not gonna work out well for Google at all because this kind of BS really pisses judges off and also looks really bad to juries if it makes it that far.
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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.
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)?
The order is about written records.
And the argument seems to be that, if you have a series of 1s and 0s on disk or in memory at some point (because the information was transferred from one computer to another), then it counts as a written record. I'm trying to understand exactly what the difference is. Not in an "I'm trying to pedantic my way around the rule", but in a "these two things are the same; data representing communication between two or more people" way.
> then it counts as a written record
Nope. Just like a drawing made by depositing graphite on paper isn't drawing, even though writing letters by depositing graphite on paper is.
> Not in an "I'm trying to pedantic my way around the rule", but in a "these two things are the same; data representing communication between two or more people" way.
I don't see the difference.
Nope. Just like a drawing made by depositing graphite on paper isn't drawing, even though writing letters by depositing graphite on paper is.
> Not in an "I'm trying to pedantic my way around the rule", but in a "these two things are the same; data representing communication between two or more people" way.
I don't see the difference.
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?
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.
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.
For that matter, why not the video itself?
Like phone calls, UDP packets carrying voice and video, those are all records also. A chat message packet seems to somehow be more special than a video or audio frame. That’s a bit weird to me.
Basically, you are saying that you can’t have a private conversation under a retention order unless computers aren’t involved.
Basically, you are saying that you can’t have a private conversation under a retention order unless computers aren’t involved.
The order is about written records.
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.
"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.
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.
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.
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.
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.
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.
> 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.
This is simply materially wrong. Like it's not even close. It's literally contra the basic language of law.
> This thread is a mess because it hits on one of the fundamental ideological divisions between left and right.
While there is a value split traditionally nobody has some weird legal positivist view of the law where we can only take things super literally.
> Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.
I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold. The lawyer response here would have probably been to group this under a priviledged meeting.
This is simply materially wrong. Like it's not even close. It's literally contra the basic language of law.
> This thread is a mess because it hits on one of the fundamental ideological divisions between left and right.
While there is a value split traditionally nobody has some weird legal positivist view of the law where we can only take things super literally.
> Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.
I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold. The lawyer response here would have probably been to group this under a priviledged meeting.
>> While there is a value split traditionally nobody has some weird legal positivist view of the law where we can only take things super literally.
No? I thought that was one of the primary legal divisions within the Supreme Court? The textualists vs the "living constitution" people?
>> I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold
I promise you they did, because that feature was added specifically due to complaints by lawyers about chats being retained! And as you say, try talking to a lawyer over email and you'll get one answer: "let's take this to a phone call". Lawyers love moving conversations to non-recorded media.
No? I thought that was one of the primary legal divisions within the Supreme Court? The textualists vs the "living constitution" people?
>> I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold
I promise you they did, because that feature was added specifically due to complaints by lawyers about chats being retained! And as you say, try talking to a lawyer over email and you'll get one answer: "let's take this to a phone call". Lawyers love moving conversations to non-recorded media.
The Federal Rules of Evidence define a "writing" as consist[ing] of letters, words, numbers, or their equivalent set down in any form. The litigation hold most likely defined the writings that should be retained similarly. "Any form" is purposefully chosen in the definition to capture as much as possible. Typically such terms are defined broadly under the reasoning that the court wants to preserve most evidence for trial. The parties can make arguments later as to whether a document is privileged or not.
It's not about talking, it's about written records. When you're under a legal hold, you better not delete written records.
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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?
Uh, the deliberate choice to move from a text-based conversation that records history, to a text-based conversation that doesn’t record history seems like about as bright a line as you could cross.
I was assuming that choice was made before the hold order.
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…
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?
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.
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.
Your analogy uses loaded terms (co-conspirator) and makes use of biased character portrayals (alone by a sketchy bridge at 2AM, don't wear a wire).
Even in this case, unless the court issued an order that forbids physical meet-up/contact between the accused, I don't see anything the court can hold against them. Meeting at a bridge at 2AM is not a crime, and doesn't mean they are avoiding anything other than other people.
Even in this case, unless the court issued an order that forbids physical meet-up/contact between the accused, I don't see anything the court can hold against them. Meeting at a bridge at 2AM is not a crime, and doesn't mean they are avoiding anything other than other people.
like the poster you are responding to, I can obviously see something the court can hold against them, so it seems maybe your inability to see it is more a reflection of you than the situation
perhaps it bears repeating that judges aren't robots and can see someone obviously trying to evade an order and impose sanctions accordingly
oh, the topic totally changed once you moved to a history free chat? got any proof? no? that's too bad, seems the judge'll have to assume the most likely scenario in their judgement
perhaps it bears repeating that judges aren't robots and can see someone obviously trying to evade an order and impose sanctions accordingly
oh, the topic totally changed once you moved to a history free chat? got any proof? no? that's too bad, seems the judge'll have to assume the most likely scenario in their judgement
What if they have a video conference with you and hold up a piece of paper with written text on it. Do you now need to have recorded your meeting?
That depends, are you doing this for the purpose of obviously attempting to get around a court order?
If so, then that would be illegal to do what you are suggesting.
Judges to not take kindly to 'clever' programmer loopholes. If you do that, you are just going to go to jail.
If so, then that would be illegal to do what you are suggesting.
Judges to not take kindly to 'clever' programmer loopholes. If you do that, you are just going to go to jail.
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
Ah, I see. Thanks.
> 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.
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.
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.
When under a legal hold? And wouldn't it be privileged?
What. That's exactly how court works?
How else do you think people and companies get away with doing a lot of bad things.
How else do you think people and companies get away with doing a lot of bad things.
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.
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.
* if you're under a retention order for precisely the records you appear to be trying to conceal
> 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.
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.
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.
Do you mean to imply legal precedents are never overturned?
Because that doesn't sound like an argument anyone would intentionally make.
Because that doesn't sound like an argument anyone would intentionally make.
> 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?
I've always considered that to mean "assume basic sparks of intelligence", how about you?
The plaintiff is arguing that GOOG is guilty of intentional spoliation of evidence, and that execs deliberately moving conversations to ephemeral channels demonstrates mens rea; if the judge agrees, they can instruct the jury (or trier of fact) that any missing evidence should be construed through the lens of “adverse inference” — in other words, assume that the missing evidence is, in fact, prejudicial to the defense’s case. This is … not something you want in a litigation, needless to say.
So, yeah, you can delete evidence that you know could be relevant to any future litigation, it’s just that if a judge finds out about it you’re going to get hit hard over it.
So, yeah, you can delete evidence that you know could be relevant to any future litigation, it’s just that if a judge finds out about it you’re going to get hit hard over it.
Why are you referring to the company using its ticker symbol? Do you specifically want to make a difference between classes of stock? I don't see how that's relevant.
> it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work?
We're talking about Google. This is exactly what they do. It works very well too.
Google suddenly finding in itself the will to forget information about people after lawsuits started coming? One would have to be naive to believe it's not deliberate destruction of evidence. If Google gets away with this, it only reflects poorly on the "justice" system which actually believed such shenanigans.
We're talking about Google. This is exactly what they do. It works very well too.
Google suddenly finding in itself the will to forget information about people after lawsuits started coming? One would have to be naive to believe it's not deliberate destruction of evidence. If Google gets away with this, it only reflects poorly on the "justice" system which actually believed such shenanigans.
I don't make such assumptions and have no understanding of what's right or wrong legally. I speak as a xoogler who hated Chat (featurewise) + retention policy and found it to exacerbate Google's sluggishness in shipping.
Why do you think Google is more likely to prevail? Why do you think your opinion is more informed than that of an experienced legal analyst? What are your bona fides?
At any rate, if a court says you have to retain copies of communications, that includes chat communications; and if you have a retention policy that would ordinarily expire them, you're then required to disable expiry if the communications are subject to the order until the order has been rescinded. That's the law, and you ignore it at your peril.
At any rate, if a court says you have to retain copies of communications, that includes chat communications; and if you have a retention policy that would ordinarily expire them, you're then required to disable expiry if the communications are subject to the order until the order has been rescinded. That's the law, and you ignore it at your peril.
revelio(1)
> How would that even work?
Hypothetically speaking, it could require at least retaining and backing up the text of every chat and e-mail produced.
For a FANG company, a year of chats or emails should trivially fit on a consumer-grade hard-drive. This isn't a technically difficult problem.
No, that doesn't capture every bit of communication in a company, but it's a very low bar that the government ought to require.
It also raises the difficulty bar for hiding bad behaviour. If keeping bad behaviour off the record requires in-person meetings, and synchronous phone calls, it makes the people engaging in it dramatically less efficient.
Hypothetically speaking, it could require at least retaining and backing up the text of every chat and e-mail produced.
For a FANG company, a year of chats or emails should trivially fit on a consumer-grade hard-drive. This isn't a technically difficult problem.
No, that doesn't capture every bit of communication in a company, but it's a very low bar that the government ought to require.
It also raises the difficulty bar for hiding bad behaviour. If keeping bad behaviour off the record requires in-person meetings, and synchronous phone calls, it makes the people engaging in it dramatically less efficient.
I was taking the referenced chat conversation in the post to have occurred after the legal hold was put in place. It seems far more devious to explicitly avoid records in places that would otherwise have records when a court has already said "you need to have records". I'm not a lawyer and don't know the context that well, though, so this may be incorrect understanding on my part.
Whether it seems devious or not to you, has no bearing on whether it's legal. The court does not say "you need to create records on this topic going forward". It says "you need to retain records you already created on this topic".
One thing that may confuse people is that some industries like finance are subject to regulations that force them to create records of employee conversations even if normally they wouldn't and even if there's no pending lawsuit. But those are industry specific rules governing specific activities like trading, not a general legal concept that'd have applied to Google.
One thing that may confuse people is that some industries like finance are subject to regulations that force them to create records of employee conversations even if normally they wouldn't and even if there's no pending lawsuit. But those are industry specific rules governing specific activities like trading, not a general legal concept that'd have applied to Google.
And yet, it's legal to make a phone call and discuss these matters for hours. Lawyers talk on the phone all the time, for exactly this reason.
You could require transcripts and recordings of all conversations, just in case something pertains to litigation. But this is an obviously bad move from privacy, ethical, and efficiency view points.
The question is whether we want to allow written media which have equal footing / similar properties to phone calls.
You could require transcripts and recordings of all conversations, just in case something pertains to litigation. But this is an obviously bad move from privacy, ethical, and efficiency view points.
The question is whether we want to allow written media which have equal footing / similar properties to phone calls.
The point the parent seems to make is that Google makes communication a hassle within the company with this policy. It would seem that a lot of "this is how you do that thing" information would be lost etc.
It seems to be nearly at the point of "To avoid being held responsible for what we do, we make it a point to not actually know what we're doing"...
It seems to be nearly at the point of "To avoid being held responsible for what we do, we make it a point to not actually know what we're doing"...
Since it's the US government suing them, I'm pretty sure this case will be decided in part by public opinion.
This sounds like a great feature. I'm not a big fan of the future we are heading towards where every conversation you ever have is logged, audited, and scanned forever. Chats should be temporary. If you were there in the moment, you hear it. If it's important to remember, you write it down on your notepad.
Sure, but 24 hours is too short. It's a huge annoyance for day to day work when you interact with a large number of people and often forget to increase the retention window. Even then chats aren't kept much longer.
> frustrating countless employees who would have needed to refer to the chat message from yesterday about simple CLI commands/instructions etc
The 24-hour auto-deletion is just a default that can be easily disabled, which is what you would do in this scenario. After you disable it, none of the messages in that chat will get auto-deleted going forward.
That setting isn't buried deep in the menus either. You just right-click the chat for which you want to turn on history, and then left-click the "turn on chat history" button. You do it once for a given chat, and you never have to revisit it again, it will stay turned on until you intentionally turn it off.
It helps that when you open a chat with a new chat group/person, it displays in very large text in the center "Turn on chat history to prevent messages from being auto-deleted in 24 hours", so it is difficult to forget to do so either.
The 24-hour auto-deletion is just a default that can be easily disabled, which is what you would do in this scenario. After you disable it, none of the messages in that chat will get auto-deleted going forward.
That setting isn't buried deep in the menus either. You just right-click the chat for which you want to turn on history, and then left-click the "turn on chat history" button. You do it once for a given chat, and you never have to revisit it again, it will stay turned on until you intentionally turn it off.
It helps that when you open a chat with a new chat group/person, it displays in very large text in the center "Turn on chat history to prevent messages from being auto-deleted in 24 hours", so it is difficult to forget to do so either.
My response is here: https://news.ycombinator.com/item?id=35225339
Even extending this to a month for DMs is short enough. 6 months for group chats is better but not very satisfactory if one wants to refer to older chats.
Even extending this to a month for DMs is short enough. 6 months for group chats is better but not very satisfactory if one wants to refer to older chats.
What about the employees seemingly being told to make the chat private and the chat abruptly ending?
> What about the employees seemingly being told to make the chat private and the chat abruptly ending?
If someone was told to make the chat private, that's a different story, and I wouldn't feel good about it either.
Luckily, never heard anyone ask me to disable chat history, and my chat history has always been enabled with everyone (including group chats). Everyone is aware of it too, because it tells everyone in the chat when someone enables it.
If someone was told to make the chat private, that's a different story, and I wouldn't feel good about it either.
Luckily, never heard anyone ask me to disable chat history, and my chat history has always been enabled with everyone (including group chats). Everyone is aware of it too, because it tells everyone in the chat when someone enables it.
Google employees created a [redacted] Chat with history on. The Google Play Operations Program Manager Lead quickly warned the group: “[redacted]” The Lead Project Manager for Google Photos asked: “[redacted]” The on-the-record portion of the Chat abruptly ended.
Thanks for clarifying the situation.
In that specific scenario, I agree with the common sentiment of the thread. My original comment definitely was not referring to that type of a situation, so I can totally see now why it got (totally understandably) downvoted.
In that specific scenario, I agree with the common sentiment of the thread. My original comment definitely was not referring to that type of a situation, so I can totally see now why it got (totally understandably) downvoted.
This is not limited to Google. It’s a tactic used to frustrate the overly excitable Plaintiff bar who enjoys asking for overbroad discovery of records. It has been so pervasive that companies have designed record retention policies more limited than even they want because it cost them so much to go preserve, collect, process, review, and produce in litigation.
Why do you say they enjoy it and it's overbroad? Any discovery can be disputed in front of a judge anyway.
The 24h limit is quite the contrast to what happens when you, as a customer, use their products:
Around every corner there is a dialog which asks for permission to store extremely personal data, such as your GPS location or browsing history, indefinitely.
See how much Google values its users safety vs. its own safety...
Around every corner there is a dialog which asks for permission to store extremely personal data, such as your GPS location or browsing history, indefinitely.
See how much Google values its users safety vs. its own safety...
If you click the button to delete that data, though, it is actually deleted.
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Is it though? Who knows how Google has crafted their language and legal loopholes to "technically" delete your data in one way while retaining it in another? And that doesn't even get into things like PRISM.
PRISM was a web portal that the NSA used to serve NSLs, FISA court orders, and other requests for information to tech firms.
It wasn't an all-seeing eye of Sauron that had full access to their backends.
It wasn't an all-seeing eye of Sauron that had full access to their backends.
Your characterization is not accurate. Please reference the government slides themselves:
https://nsa.gov1.info/dni/prism.html
https://nsa.gov1.info/dni/prism.html
Nothing in those slides contradicts me.
The PRISM vs Upstream slide makes it very clear that PRISM requests are done through the front door, because PRISM-to-vendor communication is 'laundered' through the FBI.
The PRISM vs Upstream slide makes it very clear that PRISM requests are done through the front door, because PRISM-to-vendor communication is 'laundered' through the FBI.
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Retaining data that you said you had deleted is a major liability, especially now with GDPR.
I don't live in Europe.
The last few big companies I worked for did this automatic chat deletion as a standard practice created by the authors. Microsoft even did this for email a long time ago when I was there. The lawyers tell them to do it as a defense mechanism. It's really common now.
Let me get this straight... the company whose stated mission is "to organize & make universally accessible & useful all the world's information" deletes their own information every night?
This is some incredible Dark City shit!
This is some incredible Dark City shit!
Googly Googler perchance?
Can you set longer limits or is it all ephemeral?
(We use Workplace at work that has infinite retention by default.)
Can you set longer limits or is it all ephemeral?
(We use Workplace at work that has infinite retention by default.)
I am a Xoogler. You can change the default to being a month for 1-1 chats, and 6 months for channels. That's still pretty low if you ask me. One has to be remember to copy paste useful messages over to your own personal notes. Ofc, as a lowly unknown IC, none of these messages are remotely what a judge might care about, in fact I would be flattered if they did.
I am a bit lost here, and I am by no means an expert in US corporate law. Is there a law that company's CEO should always record all their conversations? What about phone calls? In-person meetings?
There is no general requirement. But, the article refers to a “litigation hold”.
That’s something that will arise out of a specific lawsuit, and will be an order from a judge that says the company is required to preserve documents and other evidence that pertain to the litigation.
So, not a general law that’s required all the time, but an order from a Judge in specific cases, that apply for the duration of the case.
That’s something that will arise out of a specific lawsuit, and will be an order from a judge that says the company is required to preserve documents and other evidence that pertain to the litigation.
So, not a general law that’s required all the time, but an order from a Judge in specific cases, that apply for the duration of the case.
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What is Epic Games' stake in this?
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Oopsie. Is he under a legal hold generally or specifically?
Many other big companies do that, unfortunately.
Plague vs. Cholera
everyone knows laws dont apply to The Klepts
Florian Mueller (“FOSSPatents”) prominently shilled for Oracle, back during the Google v Oracle case days. That's when Oracle were trying to destroy the right to create an open source, clean room reimplementation of an API. He doesn't give a shit about FOSS.
Do not trust.
Do not trust.
Florian and the Federal Circuit were right. The Supreme Court ruling was pure legislating from the bench, and opens up a Pandora's box that may undermine the meaningfulness of copyright itself. If the design of an API is not creative expression, what exactly is?
> Florian and the Federal Circuit were right. The Supreme Court ruling was pure legislating from the bench, and opens up a Pandora’s box that may undermine the meaningfulness of copyright itself. If the design of an API is not creative expression
The Supreme Court did not overrule the Federal Circuit on whether APIs are creative expression and thus subject to copyright, so why are you accusing them of legislating from the bench for doing so? They skipped over that issue, assumed (for the sake of other analysis) that the Federal Circuit got it right, concluded that Google’s use of the presumed-copyright-protected APIs was nonetheless Fair Use as a matter of law.
This was pretty deliberately an effort to preserve the broader copyright eligibility issue so as to allow it to be more fully developed by the lower courts; it is the kind of issue the Supreme Court generally wouldn’t take up without a circuit split or a case that was both important and required reaching that point to decide. Having another out in a case where there was no circuit split and not even a clear answer from the responsible circuit (the Federal Circuit was supposed to apply Ninth Circuit law as binding precedent in this case, and, being generous to the Federal Circuit, the question presented is distinct enough that it isn’t perfectly clear that they did that well) made it a prime case for kicking the can down the road. Which they did, leaving the Federal Circuit decision in place, but not actually binding on any other court the way it would have been if there hadn’t been patent issues and the Ninth Circuit had ruled on the issue.
The Supreme Court did not overrule the Federal Circuit on whether APIs are creative expression and thus subject to copyright, so why are you accusing them of legislating from the bench for doing so? They skipped over that issue, assumed (for the sake of other analysis) that the Federal Circuit got it right, concluded that Google’s use of the presumed-copyright-protected APIs was nonetheless Fair Use as a matter of law.
This was pretty deliberately an effort to preserve the broader copyright eligibility issue so as to allow it to be more fully developed by the lower courts; it is the kind of issue the Supreme Court generally wouldn’t take up without a circuit split or a case that was both important and required reaching that point to decide. Having another out in a case where there was no circuit split and not even a clear answer from the responsible circuit (the Federal Circuit was supposed to apply Ninth Circuit law as binding precedent in this case, and, being generous to the Federal Circuit, the question presented is distinct enough that it isn’t perfectly clear that they did that well) made it a prime case for kicking the can down the road. Which they did, leaving the Federal Circuit decision in place, but not actually binding on any other court the way it would have been if there hadn’t been patent issues and the Ninth Circuit had ruled on the issue.
> The Supreme Court did not overrule the Federal Circuit on whether APIs are creative expression and thus subject to copyright, so why are you accusing them of legislating from the bench for doing so?
Because if Google's appropriation of Oracle's API IP without a license is fair use, what uses of an API would be protected by copyright?
Because if Google's appropriation of Oracle's API IP without a license is fair use, what uses of an API would be protected by copyright?
> Because if Google's appropriation of Oracle's API IP without a license is fair use, what uses of an API would be protected by copyright?
Well, copying the implementing code of the API rather than only the declarations, or copying the declarations for a purpose that was not supporting an implementation for a very different underlying platform constraints could be distinguished on grounds central to the core of the Supreme Court decision. The former would very likely fail Fair Use analysis without some new factor not presebt in Google v. Oracle, the latter is less certain. (And any of the other points of the fair use analysis could be basis for distinction, the analysis is complex and doesn’t boil down to a short, simple rule.)
Well, copying the implementing code of the API rather than only the declarations, or copying the declarations for a purpose that was not supporting an implementation for a very different underlying platform constraints could be distinguished on grounds central to the core of the Supreme Court decision. The former would very likely fail Fair Use analysis without some new factor not presebt in Google v. Oracle, the latter is less certain. (And any of the other points of the fair use analysis could be basis for distinction, the analysis is complex and doesn’t boil down to a short, simple rule.)
None?
The Supreme Court and the Federal Appeals Court moved the situation from APIs not being copyrightable to their copyrightable but not being usable in the monopoly-enforcement fashion that the copyright-holders generally intend.
So there!
This kind of silliness isn't without precedent. Font shapes and expressions can't be copyrighted but font names can be. And that's worth something to the font creator.
The Supreme Court and the Federal Appeals Court moved the situation from APIs not being copyrightable to their copyrightable but not being usable in the monopoly-enforcement fashion that the copyright-holders generally intend.
So there!
This kind of silliness isn't without precedent. Font shapes and expressions can't be copyrighted but font names can be. And that's worth something to the font creator.
> Font shapes and expressions can’t be copyrighted but font names can be.
Font programs can be copyrighted, and font names can be trademarked (not copyrighted.)
Font programs can be copyrighted, and font names can be trademarked (not copyrighted.)
Florian has a record as a shill going back twenty years to the old sco-vs-IBM lawsuit (EDIT: where preventing the us of copyrighted an API was also thrown as I recall).
He's not necessarily wrong or stupid on a given claim. It's just that if he says something, you can bet someone paid him to say it.
The name of his blog is kind of funny. Maybe it's short for "screwing Free and Open Source Software using PATENTS"
He's not necessarily wrong or stupid on a given claim. It's just that if he says something, you can bet someone paid him to say it.
The name of his blog is kind of funny. Maybe it's short for "screwing Free and Open Source Software using PATENTS"
I've just seen some law cases over the past 10 years or so where I think it's very easy to take informal conversation out of context. For a person like the CEO of Google, where tons of folks would be deliberately looking to frame any utterance in the worst possible light, I can understand wanting separate channels for informal discussion vs. official decisions/communications.