DOJ Alleges Google Destroyed Chat Messages It Was Required To Save During Antitrust Investigation (cnbc.com) 79
Google "systematically destroyed" instant message chats every 24 hours, violating federal rules to preserve potentially relevant communications for litigation, the Department of Justice alleged in a filing that became public on Thursday. From a report: As a result of Google's default to preserve chats for only 24 hours unless an employee opts to turn on history for the conversation, "for nearly four years, Google systematically destroyed an entire category of written communications every 24 hours," the department wrote in the filing.
According to the DOJ, Google should have adjusted its defaults in mid-2019 "when the company reasonably anticipated this litigation." Instead, it relied on individual employees to decide when chats were potentially relevant to future litigation, the department said. "Few, if any," did, according to DOJ. Meanwhile, investigators alleged, Google "falsely" told the government it had "'put a legal hold in place' that 'suspends auto-deletion.'" The government added that "at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications." The data deletion continued up until as recently as this month when the government indicated it would file a motion for sanctions and an evidentiary hearing, investigators allege. At that point, the DOJ said, Google committed to "permanently set to history on."
According to the DOJ, Google should have adjusted its defaults in mid-2019 "when the company reasonably anticipated this litigation." Instead, it relied on individual employees to decide when chats were potentially relevant to future litigation, the department said. "Few, if any," did, according to DOJ. Meanwhile, investigators alleged, Google "falsely" told the government it had "'put a legal hold in place' that 'suspends auto-deletion.'" The government added that "at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications." The data deletion continued up until as recently as this month when the government indicated it would file a motion for sanctions and an evidentiary hearing, investigators allege. At that point, the DOJ said, Google committed to "permanently set to history on."
And nothing will happen (Score:5, Insightful)
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Re:And nothing will happen (Score:5, Informative)
Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them?
Because destroying evidence isn't a crime? As the government alleged:
The government added that "at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications." The data deletion continued up until as recently as this month when the government indicated it would file a motion for sanctions and an evidentiary hearing, investigators allege. At that point, the DOJ said, Google committed to "permanently set to history on.
In other words, Google said it was doing what the was required to retain evidence, in this case chat logs, but deliberately did not do so until the DOJ filed for sanctions and wanting to see those logs. Only then did Google retain the evidence.
Destruction of evidence, or lying that one is preserving evidence when in fact you are not, does not sit well with judges.
Re:And nothing will happen (Score:5, Insightful)
I know it's in vogue to hate on google but "not saving chats" is not, by default a bad thing.
Except for the fact: a) the government had requested these chat logs and b) Google said they were retaining them. Until they were caught not retaining them at which point they started to retain them. In short, Google lied about what they were doing and knew there were lying. Once they were caught lying, they did what were they were told to do in the first place. Three years prior.
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knowing google these are probably the only chats they havent retianed, they probably have every single chat that has ever passed through there hangouts app by every person who ever used it archived and indexed for monetization
Re: And nothing will happen (Score:1)
Re:And nothing will happen (Score:4, Insightful)
So you're claiming that Google thinks their internal chats are not relevant? Gotta wonder why they would even have a chat system then.
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Google didn't consider chat "relevant" any more than they'd consider face to face conversation relevant.
That was dumb of Google. They should have. They did something illegal.
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That was dumb of Google. They should have. They did something illegal.
It depends. If the penalty for not complying with the order is less painful than the obvious anti-trust admissions they might provide during those four years, Google might just consider the potential fine as a business expense.
It's similar to speeding tickets and parking fines. If the fines for speeding and parking are not coupled with a potential loss of driving privilege, folks with more money than time will treat the ticket as an annoyance, not a deterrent.
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" If the penalty for not complying with the order is less painful than the obvious anti-trust admissions they might provide during those four years"
In civil procedure adverse inference may be permitted.
Re:And nothing will happen (Score:4, Insightful)
There's another POV that chat is the same as real in-person conversation
That point of view is simply wrong. The two are different. An in-person conversation involves using one's mouth to speak and ears to hear, and the medium of communication is vibrations in the atmosphere (which are not naturally retained by anything). Text chat involves typing on a device to send an electronic message through any number of servers all of which naturally store data for various lengths of time, in order to display the message on a screen that one reads with one's eyes.
The two modes of communication are wildly different and the only thing they have in common is that messages are being sent between two people. Your point of view is very abstract to the point of being destructive of the differences which would be material to a legal investigation.
I can't blame you. This sort of thing happens to people who devote a lot of their cognitive attention to abstract thinking. It's easy to lose one's grip on the concrete foundations that underlie our day-to-day existence.
Re:And nothing will happen (Score:5, Informative)
Not particularly relevant since Google a.) Agreed to do it and b.) Told them they did it.
Re: And nothing will happen (Score:1)
Re:And nothing will happen (Score:5, Informative)
Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them?
You said "convict" and that isn't relevant here--this is not a criminal matter, and is not just related to government activities. The federal rules of civil procedure require a potential litigant to preserve evidence relevant to matters when they first become aware there may be litigation. Period, full stop.
So, to answer your question: yes. To do otherwise is known as "destroying evidence."
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Tampering with evidence can be a crime.
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Tampering with evidence can be a crime.
Sure. But the original quote related to preserving evidence "that may be used to convict them." The evidence being preserved was not going to result in anyone being "convicted" of anything.
Re:And nothing will happen (Score:4, Insightful)
Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them?
On one hand, that might be onerous for some. On the other, it would be basically nothing for Google, which already does tons of that as a business. On the gripping hand, if you've got a logging function and you expect to be investigated then it never looks good to not be using it.
Re:And nothing will happen (Score:4, Insightful)
Compressed chat message storage for google on their internal systems, even with the amount of employees they have, is utter chump change.
Re:And nothing will happen (Score:4, Informative)
Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them?
IANAL, but I can read the Federal Rules of Civil Procedure. Rule 37(e) requires this very thing. Intentional failure to do so (which is what Google will likely face since it lied about its retention actions) will convict you more easily than anything else, as the trial judge can instruct the jury to assume everything the opposing party says about the evidence is true. At this point, Google will not be allowed to rebut it. Even if the opposing party says something that is clearly untrue about the evidence, it will be entered into the court record as factually proven to be true, and Google can't do a damned thing about it.
Even if the evidence will lose your case, you will at least have the opportunity to argue against it if you follow preservation rules. The only time I can even imagine a Rule 37(e) violation being in your benefit is if you know the evidence will convict you, and the evidence will convict you in additional ways that the plaintiff doesn't know about (and can't find out about any other way). Like if the evidence proves you stole a thousand dollars from your neighbor, and the plaintiff is only seeking restoration of the money, but the evidence also proves you killed people. Then it's better to know you will absolute lose on the money issue, but that's the lessor of the two consequences you face.
Your world is CORPA and dead. (Score:1)
As Evil as Google has become I'm kind of on their side. Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them? If the DOJ really wants that shouldn't they have to foot the bill at least?
You are on the side of businesses destroying evidence knowingly? That is one hell of a world view.
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Should it really be the responsibility of private companies or individuals to pay storage, maintenance, backups etc for evidence that will be used to convict them?
The only alternative is that they immediately turn the evidence over. If you think that's less disruptive I see no problem with companies doing so instead, but most would probably prefer not to do that, especially given that maintaining chat logs is not an onerous burden for anyone (e.g. I used to have IRC, AIM, MSN, etc. chat logs that went back for decades, and they only took up a few MB in total), let alone Google.
Re:And nothing will happen (Score:4, Insightful)
Google will get a minor slap on the wrist, say I am sorry, and admit no fault.
You're probably right, but sometimes these things get serious. Last year, US investment banks ended up getting fined a collective $1.8B [computerworld.com] for not having copies of employee messages (including $200M for JP Morgan and Morgan Stanley).
That was the SEC, though, and regulatory rather than legal. So it's hard to foretell how Google will be treated.
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Pfft. That's nothing. The Mormon Church got fined a whopping $1 million [cnn.com] for deliberately using a shell company to hide a $32 billion investment fund.
Read that again. Take all the time you want.
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They would have to see a conviction first. As the summary says, the DOJ wants Google to save chats the minute it "anticipates" legal action. Which is not how law works (except according to the current kangaroo DOJ), you need to get an order for discovery which means a judge has at least decided the merits of the case.
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As the summary says, the DOJ wants Google to save chats the minute it "anticipates" legal action. Which is not how law works....
That's exactly how law works in the U.S. IANAL, but I can read the Federal Rules of Civil Procedure. Look up Rule 37(e) in the Federal Rules of Civil procedure. It seems that "anticipation" is a judgement call from what I can find online, but Google is WAAAAAY past this point. They were absolutely certain of litigation, and they still destroyed evidence. The DoJ has a iron-clad claim.
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It is a civil case, so there is no 'conviction'. Second, it is exactly how the law works, and has nothing to do with the DOJ.
Federal Rules of Civil Procedure ...
TITLE V. DISCLOSURES AND DISCOVERY
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reason
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only upon finding that the party acted with the intent to deprive another party of the information’s
Again, DOJ needs to prove intent and that they were somehow obligated to make disclosures or cooperate in discovery on a case that did not exist yet.
The rules of civil procedure only apply if the court case has already started a civil procedure.
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Not even remotely true. Spoliation as a legal doctrine arises at least from the mid-1800s and was almost certainly passed to US legal doctrine through English common law.
https://legal-dictionary.thefr... [thefreedictionary.com]
SPOLIATION, torts. Destruction of a thing by the act of a stranger; as, the erasure or alteration of a writing by the act of a stranger, is called spoliation. This has not the effect to destroy its character or legal effect. 1 Greenl. Ev. Sec. 566. 2. By spoliation is also understood the total destruction of a thing; as, the spoliation of papers, by the captured party, is generally regarded as proof of. guilt, but in America it is open to explanation, except in certain cases where there is a vehement presumption of bad faith. 2 Wheat. 227, 241; 1 Dods. Adm. 480, 486. See Alteration.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
Given that this is related to the EG lawsuit, and Epic Games showed in court that employees were actively using the chat to discuss sensitive matters that should have been on the record, the doctrine of spoliation damn well applies.
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As you quote, spoliation happens once already captured. If you're routinely destroying papers (most companies do, daily, weekly, every year) and nobody in court has asked for them yet, you are not liable for that regular action.
Now, if they were already under a court order, that's different, but the summary makes it appear the DOJ just wants everybody to save papers just in case they may be interested to look at them sometime years or decades later.
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If you are routinely destroying papers then the minute you're sued/charged with a crime or think you will be sued/charged with a crime you are legally required to stop destroying any papers that could in any way possibly be relevant to the lawsuit/criminal charge. It doesn't matter if you are under a court order or not. Thus the bad faith exemption. In this case, the presumption of bad faith were the messages showing that people were specifically moving conversations to the chat so they could be destroyed.
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Yes, correct, that's what I said originally. Google hasn't yet been sued or charged with a crime by the DOJ though.
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Google will get a minor slap on the wrist, say I am sorry, and admit no fault.
That's more than the US Secret Service got for deleting all their texts.
DoJ so full of ***; (Score:1)
Of course the DoJ would "expect" Goog to have saved the most ephemeral of communications. Chat is usually considered more ephemeral than email. Suggesting chats should be logged and stored beyond 24hrs is just a way of the DOJ looking to coverup their own failings when it comes to the electronic world. I can't even get an option to have a chat log for support to a Corp, sent to me -- let alone even 1 hour later.
Google is likely guilty as doodoo in many areas, but in this, the DoJ is attempting to cover t
Re:DoJ so full of ***; (Score:4, Insightful)
There is nothing intrinsic in "chat technology" that requires messages to be deleted after 24 hours. That's a corporate data retention policy. That being said, a corporation that was told to retain data would need to either respond with a clear a-priori explanation why they can't comply, or to change their retention policies.
Apparently Google employees were told to move some discussions to the chat channels explicitly because of that 24 hour retention policy, which a judge could well rule was an explicit attempt to avoid court ordered discovery. IANAL, but I suspect Google's defense here will be tough to argue.
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That's particularly true for VoIP or similar systems, including Google Voice...
Re: DoJ so full of ***; (Score:2)
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That's my understanding. And the question the court will have to decide is whether that "screw up" was accidental or deliberate and what penalty (if any) Google would pay for that.
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The judge, and a jury, can assume malice. And they're often right.
what is chat? Conversation? or archival material (Score:2)
Chat is conceptually closest to a conversation. You don't keep conversation logs around (unless they are phone calls). If google told employees to move things to chat to evade records rules, that's another point in Doj favor, but
by default, in other company situations, chats are ephemeral, If the Doj wanted them kept they shoulda said so.
Like I already said, I'm no Goog-fan-person, but I felt the DoJ was imprecise this case.
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You don't keep conversation logs around (unless they are phone calls)
I suspect that lawyers in particular do maintain logs of their conversations, for billing purposes if nothing else. I'm not suggesting that a company subject to a Discovery requirement would need to have all employees start keeping phone log records. But I am suggesting that companies might well have employees that do this as part of their normal job requirements.
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Chat records are routinely stored for lengthy periods for the conversants to refer to their own comments. They also frequently contain documents transmitted to other parties through the "upload" features. These chats are often preserved for years, precisely because they contain contractual agreements.
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If they are Chat logs of a legal firm or financial firm, then I would agree, but chat logs at a development company? or a Social-company or a search company? Not standard fair.
How many people would feel its normal for Google to keep end-user chat logs, or how about meta? How about ? Gets a bit iffy in such situations.
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Oh, yes, startups tend to store a lot of their institutional memory in their chat logs. Then, when the chat system is inevitably to suit the fancy of the new architect or new middle manager, it can become where skunkworks or tasks done behind the backs of middle manager are done, and the unwillingness of those "outsiders" to engage there conceals vital information. And yes, they wind up keeping the logs to figure how they did it 2 years ago.
Keep no backlog? (Score:3)
Unless it's not their backlog, but yours.
Anyone else see this trivial but crucial lesson? Take this advice from what is probably the biggest data collector in the world, in polar opposition to what Google wants you to do and do not keep all such backlog. Especially not on Google servers. Google knows firsthand how much evil ones backlog does: they built a global empire on yours.
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It would have been better for Google to not do illegal stuff in the first place.
The long discarded motto was "don't do evil". This is very different from "don't do illegal".
This sounds like Google did not feel like bugging everyone was what it wanted to do. They are now discussing whether it was illegal - fair enough. I do not feel that their (in)action was an evil.
Most stuff I do online outside work is so harmless and meaningless that I don't care and so "they" can record my social media and IM if they want. I also have a Telegram account as some of my friends are a bit more cautiou
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This sounds like Google did not feel like bugging everyone was what it wanted to do
What are you talking about. They literally had the records. They said they were not destroying them. Then they destroyed them. That's illegal.
Prison sentence? (Score:3)
So, doesn't destroying evidence on such a structural and premeditated scale carry a prison term? Especially considering how important the trial is?
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So, doesn't destroying evidence on such a structural and premeditated scale carry a prison term? Especially considering how important the trial is?
Here's the problem with that. Remember on Star Trek The Original Series when Kirk talked a few computers into destroying themselves? If you think your brain might possibly destroy itself from the logical conundrum I am about to present, please don't read any further.
1) The Supreme Court told us that corporations are people and their ability to contribute infinity dollars to political campaigns must be preserved because they have free speech rights just as important as those of flesh and blood human
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Nice little rant, but the actual fact is that this is a civil, not criminal, matter. Nobody is going to jail for destroying evidence in a civil case, no matter who they are. The punishment for destruction of evidence in a civil case can be that the judge instructs the jury to assume that the destroyed evidence contained exactly what the opposite party claims it did. Alternatively, the judge can just issue summary judgement and not even go to a jury.
In other words, the punishment for destroying evidence i
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https://www.gorelick-law.com/d... [gorelick-law.com]
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Yeah, but this is a federal case [pagepate.com].
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"when the company reasonably anticipated" (Score:1)
"when the company reasonably anticipated this litigation."
This makes it sound like they didn't actually have a court order but rather something along the line of a suggestion.
If they chose not to follow that suggestion what's the problem?
If you want them to do something give them an order to do it, otherwise they're free to say, "No thanks."
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They are indeed free to say "no thanks". However, as it is a civil procedure, the judge is free to instruct the jury 'you know all those chats that defendant failed to protect? You can assume every one of them was against their case'.
Re: "when the company reasonably anticipated" (Score:2)
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Nope. The actual wording of the rule is "If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it".
Deliberate destruction is not required, failing to take reasonable steps to preserve it is sufficient.
Re: "when the company reasonably anticipated" (Score:2)
Read the federal rules of Civil procedure. You will find that if the court determines a party failed to preserve electronic records in anticipation of litigation the court may a) assume the records were unfavorable to the party, b) instruct the jury to assume the records were unfavorable to the party, or c) issue a summary judgment against the party.
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Google to the rescue, this explains all legislating from the bench bullshit this originates from.
https://www.perkinscoie.com/im... [perkinscoie.com]
This bit I found especially lovely :
The standard for reasonable anticipation of litigation is an
objective one. If a reasonable person would have expected
litigation, a party’s duty to preserve generally is triggered
Objectively bullshit.
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But it *identifies* as objective! And it's due all the courtesies and consideration earned by Google'ss female employees for "identifying" as engineers.
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If you are doing something illegal or possibly tort worthy, and you know or given your position should know you are doing something illegal or possibly tort worthy, you have an obligation to keep any records intact. There was an ONGOING lawsuit at the time(2019) regarding Google's actions, which means they DAMN WELL KNEW they should be retaining all documents including chat messages
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That was a mistake on my part, the lawsuit was launched in 2020. The messages showing they were actively shifting discussions on matters possibly tort-worthy from email to chat for the specific reason of deletion were from 2019.
Now we care? (Score:3, Interesting)
So after countless stories of wiped phones, lost text messages, ignored subpoenas, and blatantly destroyed evidence coming from the state- NOW we suddenly take this shit seriously when it's private business?
At what point do us little people get to laugh at the system and do what we please like big business and politicians get to do?
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NOW we suddenly take this shit seriously when it's private business?
At what point do us little people get to laugh at the system and do what we please like big business and politicians get to do?
I'm confused, are you saying we are holding private business accountable, or not? You seem to be saying both things here.
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I'm saying it looks like state and big business ignore the rules and make-it-up as they go while private citizens like you and I are held to the absolute highest standard and punished brutally when we fail to toe the line.
Like I said, I want to know what point do us little people get to laugh at the system and do what we please like big business and politicians get to do?
Why stop at messages? (Score:2)
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A person has to be responsible (Score:2)
In some cases a court, or Congress, will direct a person to be in charge of securing evidence or general information. And it's not some request that you can later nit-pick on, the court, or Congress, will have directed you to notify them if you have any questions, need resources, or if people subordinate to you aren't cooperating.
That's what was needed here, and the duty could have been spread to several people, telling them to work together, with the court to be told if anyone looked like they weren't doin