Chats at google by default have 24 hours of chat history. (That is, after 24 hours, the chat history is delelted.) You can opt in to having 30 days of chat history instead. And when under a legal hold, Google continues to delete chats in the 24 hour history mode, but will not delete chats in the 30 day history mode.

That is, Google's theory here seems to be that if you have a policy to destroy certain letters and memos 24 hours after receiving or creating them, then you don't need to stop doing that and preserve them even if under a court ordered legal hold. But if your policy is to destroy certain documents 30 days after creating them, then you must stop deleting them and retain them if ordered by a court.

Which is....a.....theory!

I think it's fine for Google to have a policy to delete chats by default after 24 hours, and...probably fine for some executives to strongly prefer to use the 24 hour history mode by default just in case they get sued sometime in the next 30 days. What I don't understand is what argument exists for why you can delete relevant records after you're under a legal hold.

I guess there's a little complexity here in that Google seems to have called (and thought of) these chats as being off the record - that is, they weren't chats with recordings deleted automatically after 24 hours, they were chats that had no recordings and just happened to have chat history that stuck around for 24 hours. From a technical point of view, that's nonsense; the chat history is absolutely a recording, and slapping a label on top saying "off the record" doesn't change that. But eh, maybe it'll be more convincing to the judge.

I don't know what the aftermath of the DoJ action mentioned in the link was, but I hope they were sanctioned in some way for it, just like I hope they get sanctioned for what they're trying to do here.

https://www.oyez.org/cases/2022/21-1397

From listening to the oral arguments, the court didn't seem to think that just CC'ing a lawyer automatically made the full communication privileged.

> What if you were using a 3rd party chat with no history capability at all...where does that fall?

This somewhat gets to the heart of what Google was doing. There's two parts to this:

  1. There's always some amount of history with chat software as it's a async communication mechanism. Maybe it's minutes, hours, or days. But let's say there's no feature to retain messages for longer. If you're under a legal hold, are you obligated to retain these?
  2. Now let's say the software does also have a history feature but it's optional that you can switch on, but you default it to off for everyone. If you're under a legal hold, are you now obligated to turn it on? Or this is analogous to being forced to start recording phone calls.

> The loophole for face-to-face and telephone conversations is sort of interesting. I wonder if it remains because it historically wasn't historically practical to record...or solely because of eavesdropping/consent laws.

I think it's largely because you had to go out of your way to record a phone call. You generally needed to get an extra device, wire it up, get tapes, etc. In the modern era of video calls this is a built-in feature available at the click of a button. Which raises the question: if you're under a legal hold are you compelled to enable that by default?

Right...similar for plain old telephone calls now too. That is, many VOIP PBX systems have a simple way to enable recordings.

...

(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 reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Google has been accused of violating FRCP 37(e). USA and State AGs have moved for sanctions in another case against Google in DDC:

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

In the Epic case the court did not believe that the steps taken to preserve chats were reasonable.

"Consequently, on the record as a whole, the Court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. Fed. R. Civ. P. 37(e)."

https://archive.org/download/gov.uscourts.cand.364325/gov.us...

There is nothing reasonable about turning an existing system that was never designed to keep chats at all, to do on a whim, where would cause irreparable damage to the common offering both internally and externally.

Once is a pass, but 24 hours is not nearly an established window that a medium can/should be made arbitrarily compliant. It would be a large precedent.

Tell this to the crypto people.

Crypto: (Knowing they cannot comply with SEC regulations) "We are unclear whether SEC regulations apply to us."

SEC: "The regulations apply."

Crypto: "Unfair. We were not given advance notice."

SEC: "This constitutes notice."

Crypto: "SEC regulations do not apply to crypto." (Apparently they did know whether regulations applied to them.)

It's like the crypto people are 11 years old.

Technically, storing chat history from 24 hours isn't really any different than storing it for 30 days. Or 30 years. Either it's on disk somewhere or it isn't, and if it is, then you can just...not delete it. The option to not delete it may not be exposed in the 24 hour option, while it is in the 30 day option, but courts tend to be skeptical of arguments of the form "we have carefully engineered this machine not to have a button to make it follow the law, thus we are blameless".

And of course, even if it really is difficult (obviously it's not impossible given Google's resources and that this is a Google created tool!) to stop deleting the 24 hour chats, Google had other options. For example, they could make a good faith effort to ensure that critical chats took place in channels or group chats where the history setting was enabled. But instead it seems they made an effort to move chats away from there.

> where would cause irreparable damage to the common offering both internally and externally.

I think you'll find that "being able to comply with the law" is generally seen as a positive. It's actually a feature that Google touts quite highly in the contrext of Google Workspace. :)

Also note that this is something that was totally supported by their chat platform when history was enabled, and if you read the PDF, a constant theme is people upset because they were being forced to avoid newer features (like threads) because you couldn't make it delete chats that should be preserved if you were using threads. So rather than the legal system asking Google to damage their offering by adding a feature to it, we see Google asking staff to use a less capable offering because it was lacking the feature.

It is certainly possible that a court may find that what Google did here is okay; that they didn't have an obligation to either not delete relevant conversations that took place in the channels with extended history disabled or hold those conversations in channels with extended history enabled.

But...I wouldn't bet on it. And note that this also came up with the Musk/Twitter saga:

> In McCormick’s letter today, she says she believes Musk did use Signal. “I am forced to conclude that it is likely Defendant’s custodians permitted the automatic deletion of responsive Signal communications between them and possibly others, and that those communications are irretrievably lost,” she writes. Twitter has requested sanctions against Musk, but McCormick hasn’t decided on whether she’ll sanction him yet.

(Source: https://www.theverge.com/2022/10/5/23389568/musk-twitter-sig...)

Musk responded by folding and aggreeing to purchase Twitter after all. And although there were a number of factors there (his case was horrible) a decent chunk was his usage of automatically deleting Signal chats for communications he had an obligation to retain. And whether or not this was okay wasn't ever really an open question; the questions were whether it happened, and if so, what sort of penalties Musk would have to suffer.

> It would be a large precedent.

Not so much.

You cannot officially designate anything to be "off the record". That's just not a thing that the legal system recognises - the closest thing might be attorney-client privilege, and that's not relevant here, so none of your analysis applies.

> Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats?

No, there is no record to be kept.

> Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records?

Yes, the court order applies indiscriminately to all records no matter why or how they were made.

> Now assume that the programmer of the app made an error, and accidentally DATA is kept for 24 hours. As part of the error, the DATA is also automatically deleted after 24 hours.

What now?

You want there to be some kind of big tricky debate to be had about what kind of data is or isn’t a record. There is none. People know what a record is and when they encounter one. If you are storing something for a time, you have a record of it. It really is that simple.

Maybe the world is just more complicated than you'd like to admit.

No, it’s not at all what I’m saying.

What I’m saying is that if you are keeping records of what’s said for a time like most chat apps do then these records are indeed records and no amount of hypothetical distorting regarding RAM or amount of time or what not will change the fact that they are records and you will have to keep them if the court tell you to do so.

If you were using a P2P messaging app where no storage was done at all at any point then you would have no record. It’s not that complicated honestly. Just don’t keep records if you don’t want there to be records.

But ... its not that simple any more.

A lot of the time, apps will be hibernated/suspended to disk, and then restored from disk. So talking about ram and storage in context of devices its kind of hard. Even some browsers now "suspend" your tabs to ssd, and then resume when you click back to them. So it's kind of hard to say if something was never on the disk or not.

I guess you could go with intent, that either app intentionally stored something or not, but then again you also design apps with suspend in mind so not sure how this one would play out.

There's a massive difference in deleting records that did exists vs. records that never existed in the first place.

The former is deleting data, the second case isn't.

Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper.

Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day.

Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold.

You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.

There is the whole situation of people asking to switch to the no history mode, but that's not retroactively applied and it's really no different than sending an email that says "let's talk about this over the phone".

The real open question is whether Chats can have a temporary nature to them as they are inherently a written record. But there's also other situations where you can have a written record, for example, if someone uses auto-captions on a video call. They're very short-lived, but they did exist for some duration.

I am not sure why you are making this distinction when it doesn't exists.

Litigation hold also means stop all software automation that would result in destruction of record, doesn't matter how many people know about it. Case in point: that is what happens to their 30 days old chat. This is the same thing if you trigger a litigation hold on your office365 account or whatever.

And for the rest of your point: not only does the law not accept the "oh but I didn't know", for the obvious reason that then it's an easy out, but even if they did tolerate extreme exemple of it Google cannot in good faith claim lack of knowledge about THEIR OWN system, the litigation hold was not for those specific people who may or may not know it, it was for the company who is then in charge of ensuring their IT team does what the court ordered.

The real debate is about whether "off the record" text can exist at all, and if so, under what conditions/duration? Are captions on a video call a text record? Do those need to be retained?

> The real debate is about whether "off the record" text can exist at all, and if so, under what conditions/duration

This question makes no sense, as you what you are asking is "can i not make a record, when i make a record of something to transmit it to someone else"

> Are captions on a video call a text record? Do those need to be retained?

Yes and yes, of course. It's legally a record. Again, this questions makes very little sense legally.

So if Google has been sued about, let's say, how they negotiate Revenue Share Agreements (RSAs), then they need to 1) take active steps to ensure any records they have about RSAs are retained, including making sure they aren't caught by any document retention policies and 2) they need to preserve any future records that might be relevant. And they also need to do that if they can "reasonably anticipate" they might be sued, which means (at a minimum) that if someone sends them a formal note telling them that they're planning to sure about RSAs (or whatever) they need to start retaining evidence.

If all your communications are either unrecorded or are deleted after 24 hours, then when you get sued (or receive a notice indicating someone is preparing to sue) then:

1) You likely have almost no retained records you need to prevent being deleted.

2) And in fact you can very likely argue that it took you more than 24 hours to implement the legal hold, so actually all your existing recorded conversations will probably end up deleted.

3) But everything going forward will be covered. And since these lawsuits drag on for years, that's likely to be quite a lot of material. Unless you keep deleting most of them, of course. Which doesn't seem like a good plan, but I suppose we'll see how it works for Google.

The obligation to preserve electronically stored information, e.g., the Google chats, starts upon reasonable anticipation of litigation, e.g., when the DoJ announces it has initiated an investigation of the company and dozens of state AGs publicly announce plans to sue. That can be before a suit is filed and before a judge is assigned. No court order needed.

Another widely used "legal lifehack" of this kind is to just add "Attorney Privileged and Confidential" or something similar either to the first line of the email or to the subject and then (optionally) cc a member of legal team, thinking this will prevent the document being found and used in discovery. This won't work.

Attorney client privilege covers you providing facts to your legal team sufficient for them to give you some advice and them providing that advice.[2] You can't just tag any communication and think it is magically covered, and not all communications involving a lawyer are covered either. In an actual discovery (at least in the ones I have been involved in) there is a massive document production (including emails but every other kind of document also) and then the lawyers go into a conference to argue about what is and is not privileged. If you mark actually privileged conversations you can speed this process up because they don't need to sift through as much, but if you have marked a bunch of comms privileged that is not, all you are doing is making this process take longer (and thereby increasing your legal bill). Either way, you marking something (or not) doesn't actually affect whether it is privileged (or not).

[1] I can say from experience that "Mr Hunter, what do you think it means when it says here this was 'a complete clusterfuck'?" is not a fun question to have to answer to a roomful of lawyers but whatever.

[2] https://uk.practicallaw.thomsonreuters.com/7-506-8557?contex...

Uber became a unicorn doing exactly this.

The underlying business model looked quite reasonable for investors who assumed they could eventually turn off subsidies and terrible to those who didn’t. But, you don’t need to convince every investor just enough investors to keep going.

It's always really funny/amazing that this exact process works flawlessly for EU politicians: https://www.reuters.com/world/europe/eus-von-der-leyen-cant-...

https://en.wikipedia.org/wiki/Wagatha_Christie

they'll exempt themselves

Organize the world's information, except if it might make us look bad.

This is the pennywise pound foolish leadership that has taken over.

Sometimes it's just nice just to be like "Oh what exactly did that person say/link a few days ago? Seemed relevant to what I'm working on, let me search the chat history..."

YMMV if the team is very small, very smart and everyone has a great memory or the problem domain is tidy.

And couldn't this just be circumvented by having an in-person meeting?

> 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. Indeed, 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. As the examples below make clear, Google destroyed innumerable Chats with the intent to deprive Plaintiffs and other litigants of the use of these documents in litigation

Note: that's the argument the plaintiff's lawyers are making, not the final word on the matter

This is not true anymore. The judge in the case determined that the DOJ was right.

See: https://news.ycombinator.com/item?id=35363095

EDIT: And the court in this case took a dim view of it as well: https://storage.courtlistener.com/recap/gov.uscourts.cand.37...

> At the heart of this dispute is a simple question: did Google do the right thing with respect to preserving Chat communications in this case? There is no doubt that Google was perfectly free to set up an internal IM service with any retention period of its choosing for employees to use for whatever purposes they liked. The overall propriety of Chat is not in issue here. What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties it was abundantly familiar with from countless prior cases. The record establishes that Google fell strikingly short on that score. Several aspects of Google’s conduct are troubling. As Rule 37 indicates, the duty to preserve relevant evidence is an unqualified obligation in all cases. The Court’s Standing Order for Civil Cases expressly spells out the expectation that “as soon as any party reasonably anticipates or knows of litigation, it will take the necessary, affirmative steps to preserve evidence related to the issues presented by the action, including, without limitation, interdiction of any document destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.” Google clearly had different intentions with respect to Chat, but it did not reveal those intentions with candor or directness to the Court or counsel for plaintiffs. Instead, Google falsely assured the Court in a case management statement in October 2020 that it had “taken appropriate steps to preserve all evidence relevant to the issues reasonably evident in this action,” without saying a word about Chats or its decision not to pause the 24-hour default deletion.

TBD whether using OTR exclusively (like having in-person real time meetings) for all chats would violate this. I guessing no, it's the choice to use OTR selectively by participants that causes problems.

They don’t have to perform additional recordings and minutes. But they exist, they can’t destroy it.

You have an obligation to proactively figure that out yourself. There is then oversight by the court.

> If we're going to play language games

Judges don't play that sort of language games

> turning the chat history off doesn't really destroy anything

What Google called off the record chats were 24 hour history chats. So the history was deleted after 24 hours, when it should have been preserved.

Ah, I missed that part, that's a very compelling argument. I disagree these are not language games though. The way the chat application was kept from preserving history is an implementation detail that doesn't reflect the action the user of the chat performed in the UI.

It sounds like the truth is whatever a human judge can be convinced into deciding is true.

I mean, that’s literally the judges job. It’s why they are called a judge. They make a judgement as to where the truth lies, and where the law lies (except for issues that are delegated to a jury, in which case the jury is responsible for determining the factual record).

But, yes, judges make judgements and a lot of the “well, technically” semantic games that people play will be met with an annoyed scowl and a negative opinion (but, critically not all semantic games; there are some semantic differences that are of critical importance to a judge)

If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...

Maybe? The line is more blurry here, but there are probably cases where it's more or less easy to make the distinction.

If data is recorded on a permanent medium, it can be arbitrarily retrieved, an explicit delete operation is needed to get rid of it, and this deletion can be scheduled to happen at an arbitrary time - that might easily be understood as "destroying evidence".

If you want asynchronous communication, you will need to produce records of some kind, which can be evidence. That's nothing new.

Maybe if you have a system where the information must be exchanged live and falls off a cliff immediately no matter if it was observed or not, say, like a video conferencing tool - I wonder how the courts see that. It gets much closer to an interesting edge case than something with a 24-hour retention policy.

That's not permanent.

If this would be detrimental to your case, perhaps stop doing shady shit.

That such cases can exist doesn't mean it's not clear-cut here.

In the vast majority of cases, two engineers will agree on the question "is this data persisted or ephemeral" and the fact that the line is blurry doesn't mean we can't know when it's been crossed.

An analogous real-world situation would be a meeting in a room where someone uses the whiteboard to draw some diagrams and erases it at the end. If we apply the same logic, you would be under obligation to take pictures of the whiteboard and send them to the court? Or even that you should record the whole meeting? Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.

Well that’s kind of the whole thing with discovery - the court is asking the company to disclose relevant information (some of which will be against the company). Companies here have different disclosure requirements to an ordinary individual.

And if new evidence is being created, that new evidence would be subject to the same data request.

> I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded.

Most corporate messaging apps have built in functionality to handle litigation holds. This is a requirement for legal compliance, so the company would have to train and brief employees on their legal responsibilities to not destroy evidence during the litigation.

See: https://learn.microsoft.com/en-us/microsoft-365/compliance/e... or https://slack.com/intl/en-gb/help/articles/4401830811795-Cre... or https://support.google.com/vault/answer/7657594?hl=en

Which conversations are subject to legal hold would be discussed in court.

The company must educate its employees because the company has obligations. A limited-liability corporation is a legal fiction granted extraordinary protections by a society. That corporation had damned well better be a good citizen of that society. If that means erring on the side of caution? Good.

Are you literally appointed by the Pope? Part of the process of canonisation?

Ultimately, the courts do, but if something is possibly related you’re supposed to preserve it.

> turning the chat history off doesn't really destroy anything

IANAL but courts tend to view all written conversions the same way. Turning off chat history is viewed the same as throwing away all the mail you receive, and both are very much frowned upon when the court has specifically asked you not to. These rules are set through longstanding precedent.

You are expected to act in good faith as an executive or legal officer of a publicly-traded company.

If messages are being deleted 1 day after being sent, despite being subject to a litigation hold, that’s… going to often make judges mad.

Presumably this does not apply to audio-visual real time communication as you're not transmitting entire messages but fragments in real time that don't convey any information by themselves. Sending back and forth recorded audio messages OTOH would presumably produce potential evidence. Sending each letter as it is typed presumably would not.

That said, usually these things are ruled based on the spirit of the law as much as the letter of the law so trying to game this by working around technicalities would likely be considered ... bad.

Also, if you destroy evidence that may be under litigation hold, the judge will instruct the jury to infer that what you deleted was harmful to your case.

Not a lawyer, but I have helped implement record management systems, and a requirement is always support for legal holds.

If the reg affairs or legal people were told "oh, yeah, we're deleting all these company records even if they have holds" they'd have strokes. Or quit. Or both.

because i'm in agreement with the grandparent comment that why is the topic subject to legal holds vs just having a meeting in person? Are in person meetings rquired to have a voice recorder present? it seems like a weird legal precedent.

In the court's eyes, it's analogous to writing notes to each other, only to burn them the next day.

The way this is worded there's no record, so there's no "slated for deletion"?

I guess the question becomes, if it exists inside computer memory, is that legally equivalent to "writing down piece of paper" and thusly is considered destroying evidence?

If I write something in disappearing ink (let's say it perfectly disappears), it's not destroying evidence? is it?

For argument's sake, let's say it's not. It's a tunneled connection and all stops in between are only acting as relays.

Is it still wiping it then if it only exists in memory and then gets garbage collected? is that destroying evidence?... maybe...?

It sounds like you are looking for the laws “that requires google to hold the data for this particular topic.”

They let you change collection settings and delete your data.

It’s a lot better than most companies do.

However, these are not people that can merely speculate; they live at the bottom of the rabbit hole.

Imagine you work for a company that has records about you with enough depth and granularity to have already calculated (with fp64 precision) everything you will ever do and contribute in your life (i.e. is your actual future cost/benefit ratio, not an estimated value, favorable enough to allow you to continue exist).

Would you NOT make at least some sort of effort to stop "the algorithm" from consuming you? Would you just keep feeding "the algorithm" pieces of yourself until it eats enough of your being that it becomes you?

It seems they've decided to save themselves by not saving their chats. I'm not a lawyer or anything, yet I'm getting a vibe like this kind of stuff prolly looks "kinda legally bad." Law things like this happen because there simply isn't time to waste worried about looking "kinda legally bad." It's natural to prioritize taking care of higher magnitude existential threats like getting processed by "the algorithm."

According to [1], "The DOJ maintains Google should have suspended its auto-delete practices by 2019, when it was clear litigation was coming."

I found more details in [2] on the legal topic of evidence spoliation that might be interesting, though I'm not a lawyer and don't know what which law(s) are relevant in this case.

> And couldn't this just be circumvented by having an in-person meeting?

Yes, but there's presumably a difference between deleting evidence vs. not having it in the first place.

[1] https://gizmodo.com/google-employee-chats-deleted-evidence-j...

[2] https://www.americanbar.org/content/dam/aba-cms-dotorg/produ...

In the article it seems Google's "history off" feature isn't really history-off so much as it simply auto-deletes after 24h. If the chats were never logged, would they have avoided this?

Also how far does the law go regarding deletion - I mean if a message was stored in memory and then released/garbage collected does that still count as "deleting evidence"? Because if so, then virtually any means of electronic communication might be counted as "deleting evidence". For example a voip call audio buffer that gets deleted.

(Just thinking out loud, not that I would ever want to circumvent the law)

The key word is "reasonable", which is what the court must decide happened here. OTOH deliberately enabling "history off" doesn't sound like a reasonable steps to preserve records under legal hold. Having said that, I wonder if it also means voip/video calls must be recorded, especially if the feature is available in whatever app they use. Further, even if they use a purpose built "off the record" app, deliberately choosing to use such an app could be argued as failure to reasonably preserve records, if a regular history-preserving app is available. So I think the answer to my first question could be a no.

Mail, messages, chat, ticketing systems…phone calls are definitely an outlier in my world. Even face to face is rare.

I don’t know about that. Not producing evidence and destroying evidence are very different actions, even though the intent (of not leaving evidence) is similar.

In the US, moving conversations from a recorded to an unrecorded medium would likely be covered under the 5th. Having conversations on a recorded medium then destroying the record, not so much.

Hmm, so what if the chat said “let’s continue this discussion in the conference room”?

here I present you a case for the perils of remote work

The problem with Google Chat in this context is that even history-off Chats are kept for at least 24 hours before being destroyed (I’ve sometimes seen longer due to caching), so a record is created and then destroyed. That isn’t allowed when an obligation to preserve the record exists.

I admit I don’t know whether something like un-logged IRC would be allowed, but at the very least, any IRC clients that do log the history even for the purpose of displaying it locally after a crash and restart would themselves create a discoverable record subject to any applicable preservation obligation.

If you mean that remote workers are more likely to use Google Chat for sensitive information topics than in-person workers, yes, that could be an example of a peril of remote work. But, from the perspective of society rather than the company, making it harder for companies to hide misbehavior is actually an advantage of remote work.

Disclosure: I have worked for Google in the past, but not for more than 8 years now, and I have no inside knowledge of or connection to anything discussed in the submitted PDF.

This logic gets absurd when you push it to the limits. For instance, any sort of VOIP call would imply deletion, since the voice packets have to be buffered in memory for it to be decoded and played back. At least with respect to copyright law, the interpretation is reasonable. For instance, intermediary routers that copy packets as they pass through do not commit copyright infringement. pictures/videos that get cached on your device also doesn't count as copyright infringement.

Judges won’t push the logic to its limits. They’ll look for a reasonable line, and give an annoyed look to people who go off on a technical “well actually VOIP packets are briefly in memory and then deleted, so it’s the same thing”.

Judges recognize that arguments that are reasonable and logical in some domains aren’t perfectly generalizable to all cases. They’ll just (if it’s relevant to the case) make a ruling on whether transistory packets count as recording, and create a litigation hold (they’d almost certainly decide it doesn’t) and move on with their lives.

- Eliot Spitzer to CNN Money, an updated version of a much older saying by Martin Lomasney

Where would you draw the line?

Telling another human to deliver a verbal message only within the next 24 hours is okay. Training a parrot to do it is okay. Programming a robot to do the same is okay? Programming a computer to do that is not?

Is it okay if it's a one hour delay? Four hours? Until it detects that the user has read it? Until the user manually marks it as read (does that count as explicit deletion)? If it's stored in RAM? On an HDD? On an SSD in swap? On ticker tape?

In the USA there is practically no recourse users have if SAAS/PAAS simply decides to keep this data and not tell you about it. Google won't be investigated or punished, and you'll never get anyone on the phone to yell at about it. Taking them to court is like throwing money into a well. The truth is, if they decide to do it in secret you'd probably never even find out about it.

Google is large enough to design its own hardware/firmware. They could probably implement this without many of their own internal teams being aware of it.

There’s a general obligation to preserve records pertaining to the subject of actual ot reasonably anticipated litigation, and chats are records.

In one internal email sent in July 2018, a McKinsey executive appears to acknowledge the growing legal risk faced by Purdue Pharma over its opioid business.

"It probably makes sense to have a quick conversation with the risk committee to see if we should be doing anything other that [sic] eliminating all our documents and emails," McKinsey senior partner Martin Elling wrote in an email sent to another executive at the company. "As things get tougher here someone might turn to us."

Gah that is so incredible dumb and the fact that he didn't check himself before hitting 'send' is just perfect. Nothing like a bit of hubris to go with the mindset of a criminal. It makes you wonder what 'anything other' referred to.

At the HFT firm, the attitude was, "we're constantly being sued (by the SEC and others), so we treat all of our records like they're under litigation holds, just in case the SEC claims they wanted them, even the off-topic slack channels."

At Google, the attitude was, "we're constantly getting sued, so we treat all of our records as being as ephemeral as possible so we can avoid having a record of what we're doing."

What made them strange, other than the fact you didn't know who they were?

The guy who handled the regulators wore button-down shirts when they were around, and any traders/engineers who had to talk to them often were told to wear a button-down, but that was it.

People from "real Wall Street" who joined usually had a phase of dressing up before they adopted full casual dress. One person lasted months before showing up in a t-shirt. I kind of assumed that they were all buying new wardrobes during that period, but there may have been a culture shock of sorts.

For some reason this question is geeking me out, what sort of answer were you expecting?

Levine’s article makes a great point:

“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 spirit of the latter crosses a line of showing deliberate contempt for the legal process. Doing it in writing seems just as ill advised as discussing sensitive information in writing.

Honestly, it's getting a bit insane I think.

If we cannot communicate digitally in private and we cannot communicate physically in close vicinity to a car or a building, the only place left is in a remote forest.

As we have seen with Tesla engineers having access to videos inside cars (how can this even be legal) and we saw the 21 year old who leaked the secret Pentagon data, it's not that there has to be a decision by lawyers or government agencies that the data has to be provided. Any devops or admin can access this kind of data and spread as they like.

And how come Tesla and the Pentagon has no precautions in place to stop this kind if abuse?

It's really quite crazy on many levels.

To me it looks like a clearly-defined line between text and real-time voice/video. What the user experiences, not the technical background.

Ie it would have been perfectly fine for google to ban text chats, and just use calls/meetings; even with the same software. As inefficient and unpleasant as it would be.

megcampbell@google.com: "it needs to be history off"

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

schramm@google.com: "should we have history off for this?"

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

margaretlam@google.com: "Hi Tim, if OK, can I ask you to turn history off :)"

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

margaretlam@google.com: [interesting exchange with another employee who is trying to follow the rules]

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

Paraphrasing: "What policy? I'm on multiple legal holds as well. I ignore them every day [smileyface] But if you want to follow the rules, I'll respect your decision. I'll just communicate with the others off the record. I only included you for optics reasons."

Some would say that company culture starts at the top. Here's the 50-year-old CEO:

https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

What kind of legal guidance were these people getting? When I worked at a big corp, we had regular meetings with legal that were reminders of how to treat sensitive subjects and it was taken very seriously.

Exactly.

When 'fix' means ensure conversations that are already under current legal hold are destroyed, it's clear what legal guidance and training are.

I hope the court nails their execs to the wall for pulling shit like this as a matter of corporate policy.

The kind that looked at the Microsoft anti-trust lawsuits in the 90s, and instead of saying, I dunno, "let's not try and gain and wield illegal monopoly powers" but "let's delete all the evidence of us gaining and wielding illegal monopoly power".

The internal legal guidance they've been getting for this case is likely exactly the same as their internal legal guidance for everything else.

eg "completely full of shit" that they're complying with things

Seems like a bad internal culture, maybe stemming from their weird self belief and exceptionalism because "we're smarter than everyone else"?

Either way, when Google claims things like "We're fully compliant with GDPR, or [other legislation/requirements here]", the documented examples above is why many people don't believe them in the slightest.

https://ia601707.us.archive.org/28/items/gov.uscourts.cand.3...

jsinouye@google.com: "Hi, please use this chat for ops/policy/BD/escalations issues that need faster response. Please note: I would like to keep history off. Members are Shie, Camille, Dan, Court, Sherry, Jintae, Ash, Jami, me."

https://ia801707.us.archive.org/28/items/gov.uscourts.cand.3...

I worked at one shop that if you said "call my cell" in a slack to someone, you'd get a call from compliance within days ask to explain why you did this, what the conversation was about, why it wasn't on a work phone.. and to never, ever, ever do it again... because you know we are watching, so we will find you.

In fact, many Zoom conversations are expressly forbidden from being recorded at many financial firms. Again, that’s because no one is using zoom to make trades so there isn’t a requirement to record them and financial firms also don’t want to have to pay to keep things stored just so some lawyer can hit them with discovery.

A big current issue is when you use written correspondence that is not part of a system of record. See Finra Regulatory Notice 17-18 for details on that.

Because trading conversations have to be recorded (legally). It's easy for corporate policy to say "we don't record Zooms, (therefore) you cannot trade over Zoom". It's also easy to say "we record all text communications, (therefore) you can trade over text". Meanwhile, the phone rules predated any other modern form of communication so they have the complexity of "sometimes record and trade, sometimes don't" grandfathered in.

The point of the regulation isn’t to cover every conceivable alternative. The point is to specify what avenue you can use to accomplish a task in a regulated manner

During yearly compliance training one thing that was stressed was not to mark anything A/C Priv unless it actually was. They made sure to call out that including someone from legal in an email chain does not make it A/C Priv and not to try anything like that. At the time I thought it was silly that the training went over such obvious things as "don't commit white collar crimes" in essence but apparently that's not how they do things at Google. I just can't wrap my head around why any of the many different people involved could ever look at what they were doing and think "yes, this is fine, I should continue this behavior". WTAF.

If you are allowed to be off the record only in person, this seems like the perfect commercial real estate subsidy program from the federal government.

The penalties are so stiff for a lot of infractions, there is far less attempts to workaround the letter of the rules than you would immediately expect.

There's also classes of in-person meetings with externals that you need pre-approval permission to attend and to write up what was discussed after the fact.

Like people at asset management firms attending a dinner with a broker.

Another example, at a hedge fund I worked, emails, meetings or phone calls to public companies required pre-approval from compliance, and for them to be on the email or call. The emails would also require a preface reminding the moron on the other side that you are a hedge fund and they should not provide you with any material non-public info.

It wasn’t about regulation, but protectionism. If you want to do business with us, you need to hire people to deal with us - people we approve of, or no access.

This was in an unregulated industry, with strong protectionist instincts (Hollywoods movie industry).

Couldn’t these sorts of “in person only” rules also be a protectionist gatekeeping technique?

Which gives you an idea of the level of monitoring they are doing to tie that together probably automatically given how quickly I was called. And this was almost 10 years ago.

I'm also old enough to recall the little background hum & beep the bank landlines used to make when you were on a recorded line.

Seems like it might be time.

Desantis just tried to push through a law that said you have to register with the state if you report on politicians. Do you like that proposed law?

Do you want the government to have access to all communications between you and your coworkers? Do you want to be questioned every time that you tell a coworker over Slack “maybe we should talk about this at lunch?”

It amazes me that people want the only organization that has a “monopoly on violence” to have more power.

There's currently an investigation going on about how one particular former President may have broken the reporting law. But for that law, his "catch-and-bury" agreement to keep unpalatable stories about him out of the public eye was perfectly legal.

So yes, I do want the organization with a monopoly on violence to have more power of oversight of people with power through money. Especially as long as who has control of those levers changes with the frequency it does.

Are you one of those people in power? Because the scenario that someone said was that I financial firms that are highly regulated was that if any employee said on chat to a friend at work, “hey give me call on my cellphone and let’s talk about where we are going after work”, you could be talked to by legal.

You are saying that you want an increase by the surveillance state. Have people learned nothing about how the government abuses power from the “War on $x”?

Sure. I was there; I remember. I think it was a waste of time but ultimately harmless; it resulted in a few (private, moneyed) corporations deciding not to sell some music that the government had mandated be labeled (which, to be clear, is a wide power the government has; perhaps overused here, but it's no a violation of anyone's rights that they make companies put the ingredient lists on food). Then the Internet happened and that whole thing became irrelevant.

Florida is a great example to study these money-power-vs-political-power effects, because were the tables reversed people currently supporting Disney would be horrified. Imagine it was Rupert Murdoch and Fox World with an ultra-right-white-national enclave utterly immune to legal oversight, and the duly-elected Democratic government trying impotently to reign them in. Much as I like the result of Disney;s pushback, the means are deeply disquieting and speak to a completely-dysfunctional corporate-power-vs-state-power relationship that is ripe for abuse. And the wheels of corporate power turn glacially relative to government power; DeSantis, barring a state constitutional amendment, is gone in 2024 as a state governor, but Rupert Murdoch was CEO of News Corp / Fox for 36 years.

I'm not 100% for corporate power or 100% for government power. I'm for balancing and pitting the two against each other because they're both effective tools for checking the worst abuses of the other. And make no mistake: when it comes to the FAANGs, what we're seeing is patterns of abuse that need to be reigned in. Requirements for auditing and oversight can be overdone, but in practice, in 2023, the tech sector has been allowed to run with a laissez-faire attitude for decades and has become a vital piece of the modern societal fabric; as a general principle, anything that vital to daily human experience for most citizens needs government oversight to ensure its legal compliance before it becomes Standard Oil or Bell Telephone or Microsoft or Fox Media or, indeed, Disney... Something unanswerable to all but itself.

This era of existence is marked by humanity trying to forge a path between a 1984 future and a Brave New World future. There are no simple answers for power allocation.

So you think it is okay that the government trampled on the free speech rights of rappers who were talking about police corruption and there experience years before the internet became ubiquitous where anyone could get it out?

> Imagine it was Rupert Murdoch and Fox World with an armor, always taste no and the duly-elected Democratic government trying impotently to reign them in

And the government only tried to “rein them in” by punishing them after they spoke out.

> when it comes to the FAANGs, what we're seeing is patterns of abuse that need to be reigned in.

Well the difference is that no corporation has ever stopped me because I “looked suspicious” because I was walking through my own neighborhood that I looked like I didn’t belong. Nor does it have qualified immunity to get away with doing almost anything. I have agency to not be under the auspices of any corporation - especially a search engine. I don’t have that power under the government. There is no balance on government power except not to give it anymore than absolutely necessary.

I’ve never had to worry about my son being harassed by any corporation just for driving down the street.

And do you think the government is just going to be happy with surveiling employees?

Did they though? I mean, to be clear, I'm sure they tried. But both back then and now, the songs were easy to get and is still easy to get. If anything, the whole affair Streisand Effected the hell out of them.

I think the story's a good example of a failed attempt at abuse of power because the system of checks and balances worked (it would have failed harder but for a single, powerful, monolithic corporation agreeing with the goal and de-stocking the product from its shelves).

> Well the difference is that no corporation has ever stopped me because I “looked suspicious” because I was walking through my own neighborhood that I looked like I didn’t belong

No; they merely cut access to your account because you look suspicious, such as having pictures in your private Drive account that their algorithm decided were child pornography, locking up or deleting all data you had hosted by them, with no recourse and no hope of retrieval. Google's within their rights to cut an account, but there's no arguing there's a difference in kind of the experience someone online has if they have a Google account vs. being banned from having one. It's not nearly as bad as government abuse of power; it's really quite bad, and only government has the authority to make it better because the corporations are otherwise unaccountable.

> Nor does it have qualified immunity

Who backstops the terms of service violation system? When Google demonetizes trans-friendly or trans-inclusive content because their inscrutable TOS and algorithm decide such content is "sexually explicit" (read: offends the sensibilities of schoolboards and advertisers), who has the power to say that's not what that term means? Nobody. I guess with YouTube, we can always take our business to its competitor, doesnt-exist.com.

> I have agency to not be under the auspices of any corporation

Yes; you have the digital equivalent of the freedom to live in a van down by the river, banished from the nice neighborhoods. Vive Liberte.

(To be clear, I don't have concrete answers here. There are no easy answers; it's a complicated problem. But that means the answer also isn't as easy as "Government already has too much power." Perhaps it currently has too much of the wrong kind of power, and not enough of the right kind).

In the 1980s how did you produce or distribute music without the internet and computers that could produce music? The police arrested NWA at a concert for rapping “Fuck the police”.

> No; they merely cut access to your account because you look suspicious, such as having pictures in your private Drive account that their algorithm decided were child pornography, locking up or deleting all data you had hosted by them, with no recourse and no hope of retrieval.

I can and do have multiple backups of my media (Google Drive, iCloud, Amazon Drive, and they are stored using a separate account in AWS S3 Glacier. Are you really comparing losing some pictures and data with losing your freedom or being harassed by a cop?

> Yes; you have the digital equivalent of the freedom to live in a van down by the river, banished from the nice neighborhoods. Vive Liberte.

Yes guess how hard it is to live a good life after getting arrested because you got on the wrong side of an overzealous Justice system? Or got shot by a trigger happy cop?

I agree with you that the monopoly on violence requires more scrutiny than the soft-power of money. My argument is that certainly doesn't imply no government oversight, nor does it imply we don't have enough government oversight right now. Especially of corporations - your argument appears to be government power is dangerous to use because it can be abused vs. individuals and vs. music acts; can you think of an example where too much government oversight of corporate process has led to improper deprivation of liberties (jail time and the like)?

We can acknowledge government power is abused against individuals while still asserting it is the most effective tool against corporate overreach and should be wielded as such.

No comparing government power and the harm they can inflict (taking away your freedom) to corporate power (they can take away pictures of little Johny) are night and day. I can live my whole life without dealing with Google.

> can you think of an example where too much government oversight of corporate process has led to improper deprivation of liberties (jail time and the like)?

In a very realistic scenario that someone said happens in highly regulated industries is that if you ever tell a friend on a company communication channel to call you even if it’s something personal you will be called by lawyers.

States are trying to pass laws where social media companies have to verify your identity and your age before you can post.

Government is trying to have back doors to all of your chat.

Government is arresting people based on their chat messages where they are talking about using pills that facilitate abortion between grown people?

Do I need to go on?

Is it worth having the government intrude in your life to protect your pictures of little Johny?

So what? So you have to explain that you didn't violate the auditing laws? That's hardly a huge burden. Don't use corporate assets for personal communication, problem solved.

> Government is trying to have back doors to all of your chat

And they shouldn't. But the point is: for most users who haven't bothered to set up something like IRC, corporations already do. And you continue to harp on the ways that government can impact personal civil liberties when I am still talking about the ways government can restrict corporations from using unchecked power to make people's lives hell. For the purposes of this discussion, chat logs and abortion are irrelevant. Unless you think the personal right to have an abortion is somehow analogous to the corporate right to, what, Dodge tax law? Use dark money to fund a candidate like DeSantis getting into office?

If you're concerned about government overreach and a resulting threat to personal civil liberties, the best defense we have against it is strengthening and enforcing existing corporate auditing law. Because everything you're concerned about regarding civil liberties gets exponentially worse when corporations can buy politicians.

Government and corporate power aligning behind a common goal is on the road to fascism. I'm advocating for setting those power bases against each other.

So are you okay with the government subpoenaing your private phone communications because they think when you asked your coworker to call you on your personal phone to talk about where you wanted to go out drinking?

Fascism is when the government controls every area of your life and of corporations. Do you think giving the government more control of the private sector will lessen the chance of fascism?

You keep bringing it back to personal civil liberty because you don't have an answer to the question "So why is more government oversight of corporations bad?"

I actually have no problem with such a subpoena being attempted (it is part of the regular process of investigating a crime), but I have a problem with a court rubber-stamping it. I have no problem with the corporation I'm working for being obligated to track and furnish similar records for any corporate assets I use, and to be obligated to ask questions if they catch wind that I might be trying to skirt auditing law by pushing conversations that should be legally audited private. Catch the difference?

> Fascism is when the government controls every area of your life and of corporations. Do you think giving the government more control of the private sector will lessen the chance of fascism?

I actually do because the definition you gave is not actually what fascism is.

Fascism is a political movement emphasizing extreme nationalism, a supremacy mythos of that nation, and the militarism necessary to support such an inherently unstable structure. Among its tools can be usurpation of corporations. But tight control of corporations is also a hallmark of socialism and communism, among other structures. You may as well say its wrong to breathe air because fascists do that too.

A healthy democracy reigns in the excesses of an unfettered corporate sector. Those excesses, left unchecked, can (not will, but can) result in, among other things, fascist-leaning private company owners throwing in the power of their corporations behind like-minded politicians and building the machine that facilitates a Mussolini or Hitler rising to power. Mussolini, in particular, was funded by Italian industrialists.

I just gave you a real example of where corporate oversight leads to giving the government access to your personal communications.

> I actually have no problem with such a subpoena being attempted (it is part of the regular process of investigating a crime), but I have a problem with a court rubber-stamping it.

Have you not been paying attention to what the government has been doing in the name of the War on Drugs, the War on Crime and the War on Terrorism?

> Fascism is a political movement emphasizing extreme nationalism

Have you not been paying attention to what’s been happening since 2016?

> A healthy democracy reigns in the excesses of an unfettered corporate sector

Exactly what power are you afraid that Google can have over you compared to the government?

There were an awful lot of people concerned about the time they colluded to depress wages (https://www.latimes.com/business/technology/la-fi-tn-tech-jo...).

And the people they fired to break unions (https://www.bbc.com/news/technology-55173063).

And they're currently under investigation for monopolizing digital ad tech (https://www.justice.gov/opa/pr/justice-department-sues-googl...).

Let's assume, ad argumento, that they have monopolized digital ad tech, meaning other digital advertisers are excluded and almost all the ads you see are single-source.

Gosh, it sure would suck if fascists gained control of that single source, wouldn't it? And as we've seen, we can't trust that won't happen just because they nailed up "Don't be evil" above the door (and then it fell off later).

We should probably enforce the laws that are in place to keep a market diverse and healthy.

... I think I see your position though. You're concerned, given current political climate, that increased government oversight could give fascists more power. I echo that concern... Except that I believe we got here because fascists recognized that nobody was watching the tech henhouse and weaponized that. We had an awful lot of tech firms thinking they were bigger than political concerns and should be a world apart from government oversight right up until they realized they aided and abetted those who organized Jan 6th, then... Oops.

[0]: https://en.wikipedia.org/wiki/Libor_scandal

[1]: https://www.businessinsider.com/read-the-bloomberg-chats-tha...

CDO credit ratings were a perverse incentive race to the bottom in terms of quality, because it was issuer-paid.

The ratings agencies essentially bid on future business with the banks by issuing rosier ratings than their competitors.

Also, they paid billions in fine settlements after the fact.

The record keeping likely contributed to them being able to piece together the agencies becoming more and more lenient, and the internal dialogue between analysts & sales.

Yet this remains unchanged.

Anyway, some structure was put in place by the government settlements. For example in Moodys government they agreed to:

* Separation of Moody’s commercial and credit rating functions by excluding analytical personnel from any commercial related discussions and excluding personnel responsible for commercial functions from determining credit ratings or developing rating methodologies;

* Changes to ensure that specified personnel are not compensated on the basis of the company’s financial performance;

and a few other things

The separation of concerns seems similar to the Dotcom implosion era settlements to how equity research could be paid, and that they had to be firewalls off from the parts of the bank bidding on equity/debt/loan offerings with the companies that research reports were being written on.

Probably the biggest outcome was that the market now understood credit rating agencies are barely worth the bytes they are recorded in, and they are taken with large grains of salt now.

So far from perfect, but also far from the narrative of "nothing changed".. like much in life.

Only half-joking. I really wish I knew how this works.

This is in addition to all email and slack/IM messages.

Route it all through VoIP and record it there?

Maybe theres some bank-compliance phone vendor that operates its own MVNO and does the recording for you?

here's something like that - https://www.teleware.com/products/mobile-voice-recording/

Banks aren’t creating a super secret MVNO to comply with regulations and the telcos aren’t cutting breaks for a bank or a 3rd party spy network. I’d imagine saving all employees cellphone calls for 7 years is a very expensive project.

[1] https://ai.googleblog.com/2021/02/lyra-new-very-low-bitrate-...

There's many areas in which tech competes directly with, or has attempted to build shadow parallel systems to other more regulated industries - payments, exchanges, various medical plays, media, etc.

If we are just talking about the USA, then I think both Apple and Google had to partner with entities in the financial industries to do payments, they didn't just bypass regulation in those industries. Then there is Stripe and Square (erm, whatever Square is called now), I'm not sure what regulations they fall under.

now, when i hear someone say disrupt, i immediately assume they are cutting corners on whatever regulation that is needed to gain a leg up over the incumbent companies following the regulations.

Getting a paypal/google/whatever account flagged is basically the death of that account.