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Google CEO: “can we change the setting of this group to history-off” [pdf]

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Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#251

Post by dtdynasty »

siliconc0w wrote: post #215

Ironically at google's scale(size and global timezone footprint) the inefficiency this default setting creates likely burns millions every day from work that gets blocked or knowledge that isn't discoverable. Organize the world's information, except if it might make us look bad. This is the pennywise pound foolish leadership that has taken over.

It changes the expectation of the team though. Since teams know they expire in 24 hours they are forced to extract the important information and document them somewhere else. I've been on remote teams where they explicitly do it so members are forced to document in a structured way.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#252

Post by seanhunter »

It's always really funny/amazing that seemingly smart people think that the legal system can be "hacked" by doing cheap stuff like deleting history. It's going to come out and it's going to look bad. In an actual case that I was involved in, the other party was an ex-lawyer and had a rigorous practise of not keeping records in case something bad was discovered. I on the other hand had (terrifyingly, in retrospect) meticulous notes. I figured if I don't do anything bad my notes will be fine. When it came to the actual case my notes meant our side prevailed on every material question of fact because they had literally nothing to back their theories up with. Some of the notes were a bit embarrassing to be crossexamined about because they were my personal take on meetings and conversations etc[1] but it 100% reinforced my basic idea: act with integrity and don't be afraid of the record.

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...

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#253

Post by Closi »

glerk wrote: post #243
polotics wrote: post #232

Earlier quoted context omitted.

I am getting the feeling you are being disingenuous: a record is a record, a records that gets deleted after 24 hours was still a record. This is a truth based only on the meaning of the word "record". The chat application was not kept from preserving history, it was designed to actively delete history after 24 hours If there is a court order to not delete history, then the application was designed to do the opposite…

I admit I am playing the devil's advocate, but not trying to be disingenuous. The intention behind an ephemeral chat application is to allow private communication without creating a record. From the end user's perspective, the messages are thought to be self-destructing objects that are kept just long enough to be read by their recipient. The way this is achieved in practice is an implementation detail that end users…

> 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.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#254

Post by seanhunter »

zootboy wrote: post #236
Paul-Craft wrote: post #223

Earlier quoted context omitted.

This is just Google up to their old tricks again. They used to have an internal practice to add company lawyers to emails in order to try and make them privileged and undiscoverable: https://archive.is/1Bwgs 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.

There was a recent supreme court case where they discussed this exact practice: 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.

Yup, as per my note in another thread this does not work and it's pretty dumb to think it will work. Privilege covers you providing facts so they can give advice and them giving advice. It doesn't cover anything else and adding a lawyer to a thread like that is just sketchy and looks evasive.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#255

Post by largeluke »

master_crab wrote: post #131
steveBK123 wrote: post #71

Earlier quoted context omitted.

Yeah, FAANG gang has no idea the level of surveillance and record keeping that bank/fund/wall st tech is under. 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…

No. You are allowed to communicate by voice and it isn’t recorded and compliance will allow it. However it depends what you are doing. If you are trading, it better be on a recorded line. See FINRA Regulatory Notice 20-16 for reference. 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 requir…

You're entirely correct but I think GP was referring to personal cell: phone doesn't need to be recorded (if not trading), but you can't use your personal cell. Anything work-related must be on firm systems.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#256

Post by seanhunter »

Paul-Craft wrote: post #226
pyuser583 wrote: post #222

Earlier quoted context omitted.

Google has been getting a lot better. They let you change collection settings and delete your data. It’s a lot better than most companies do.

How do you know they actually honor your requests? What about any of your data that's gone into training one of their ML models? You can't just delete the effects of training data from your model weights.

True although in the EU at least I'm pretty sure that retention of the effect of some data after aggregation is ok as long as the originating data is deleted and the aggregation is such that the original data couldn't be reverse-engineered afterwards. So that would cover use of your data in an ML training set. They would need to remove it from the set for future trainings but the weights of existing models wouldn't need to be altered. That's my understanding anyway.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#257

Post by hnbad »

atian wrote: post #227
1vuio0pswjnm7 wrote: post #218

Earlier quoted context omitted.

FRCP 37 ... (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…

> a party failed to take reasonable steps to preserve it 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 preced…

So what you're saying is that it's evidence of illegal intent to use these systems for any conversations that a company could reasonably be expected to keep more permanent records of otherwise? Because as far as I'm aware the usual answer to "we can't make this technology comply with the laws and regulations for doing these things" is "then you can't use that technology for doing those things".

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#258

Post by hnbad »

glerk wrote: post #69
rawgabbit wrote: post #35

Earlier quoted context omitted.

Not a lawyer. When a legal hold is issued, the company is instructed not to destroy potential evidence related to the case. They don’t have to perform additional recordings and minutes. But they exist, they can’t destroy it.

Who gets to decide what is "potential evidence"? If we're going to play language games, turning the chat history off doesn't really destroy anything, just prevents the paper trail from being created.

IANAL but my reading is that by transmitting chat messages you are generating potential evidence so discarding those is destruction of that potential evidence.

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.

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#259

Post by [deleted] »

gorgoiler wrote: post #248
seraphsf wrote: post #244

Earlier quoted context omitted.

Today, we use instant messaging like we use voice conversation - especially for people who work remotely. Banning the use of ephemeral IM is sort of like saying “you need to record all of your discussions, no matter how trivial”. 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…

There’s a difference between avoiding discovery by tacitly moving conversations offline versus saying that you are doing so, in writing, in a discoverable channel, specifically to avoid discovery. 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.

[deleted]

Re: Google CEO: “can we change the setting of this group to history-off” [pdf]

#260

Post by DesiLurker »

hgsgm wrote: post #153
ocdtrekkie wrote: post #135

Earlier quoted context omitted.

Heh, well aware. The MADA and AFA are insane reads, especially when you realize they apply to over half the mobile phones on the planet . It's one of those things they keep confidential not because they have any real trade secrets, but because they're flagrantly illegal and they want to keep government officials from seeing them.

Yeah, imagine if Apple banned their manufacturing and sales partners from selling devices with forks of the iOS open source project too. Or if Microsoft banned Windows forks.

yeah its not nearly the same thing. Google is built on the opensource OS called AOSP (android open source project), then they have all the proprietary google stuff on top of it. they use sleazy legal tactics to force anyone using the AOSP variant on any device to not be allowed to ship with any google service. mind you the AOSP is completely legal and developed under the guise of create open platform and supporting community. this is nowhere like microsoft banning reactos or apple banning .. well pretty much everything outside of their walled garden.
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