Google Defends Auto-Deletion of Chats After US Alleged It Destroyed Evidence (arstechnica.com) 81
Google defended its use of "history-off chats" for many internal communications, denying the US government's allegation that it intentionally destroyed evidence needed in an antitrust case. The history-off setting causes messages to be automatically deleted within 24 hours. Ars Technica reports: The US government and 21 states last month asked a court to sanction Google for allegedly using the auto-delete function on chats to destroy evidence and accused Google of falsely telling the government that it suspended its auto-deletion practices on chats subject to a legal hold. Google opposed the motion for sanctions on Friday in a filing (PDF) in US District Court for the District of Columbia. Google said it uses a "tiered approach" for preserving chats. "When there is litigation, Google instructs employees on legal hold not to use messaging apps like Google Chat to discuss the subjects at issue in the litigation and, if they must, to switch their settings to 'history on' for chats regarding the subjects at issue in the litigation, so that any such messages are preserved," the Google filing said.
Google said the government plaintiffs "contend that the Federal Rules specifically mandate that Google should have applied a forced history on setting for all custodians for all chats created while the custodian was on legal hold, regardless of the possible relevance of the message to the litigation." But federal rules only require "reasonable steps to preserve" information, Google pointed out. "Google's vast preservation efforts here -- and specifically its methodology with respect to history-off chats -- were 'reasonable steps' under the Rule," Google argued. Google said the US and state attorneys general "have not been denied access to material information needed to prosecute these cases and they have offered no evidence that Google intentionally destroyed such evidence." Google also argued that the objections came too late, alleging that the government knew before litigation began "that there was a subset of chats not automatically retained." "Plaintiffs' motions are barred at the outset because they were on notice of Google's approach to chats for years, yet did not object until well after the close of discovery. Those tactics should not be countenanced," Google told the court.
Google said its November 2019 disclosures in an ESI (Electronically Stored Information) questionnaire "show that the distinction between 'on-the-record' and other chats was apparent to anyone who wanted to pursue the matter from the outset of DOJ's investigation. For instance, the ESI Questionnaire response specifies that chat 'messages are generally retained for a period of 30 days if they have been marked on-the-record, and potentially longer if on-the-record messages are on legal hold.'" Google also said, "it is no secret how Google's Chat product operates" because it's a publicly available product and the Google Chat website explains the history-off feature. The Justice Department's motion last month said things happened very differently. "Google systematically destroyed an entire category of written communications every 24 hours" for nearly four years, the government motion said, continuing [...].
Google said the government plaintiffs "contend that the Federal Rules specifically mandate that Google should have applied a forced history on setting for all custodians for all chats created while the custodian was on legal hold, regardless of the possible relevance of the message to the litigation." But federal rules only require "reasonable steps to preserve" information, Google pointed out. "Google's vast preservation efforts here -- and specifically its methodology with respect to history-off chats -- were 'reasonable steps' under the Rule," Google argued. Google said the US and state attorneys general "have not been denied access to material information needed to prosecute these cases and they have offered no evidence that Google intentionally destroyed such evidence." Google also argued that the objections came too late, alleging that the government knew before litigation began "that there was a subset of chats not automatically retained." "Plaintiffs' motions are barred at the outset because they were on notice of Google's approach to chats for years, yet did not object until well after the close of discovery. Those tactics should not be countenanced," Google told the court.
Google said its November 2019 disclosures in an ESI (Electronically Stored Information) questionnaire "show that the distinction between 'on-the-record' and other chats was apparent to anyone who wanted to pursue the matter from the outset of DOJ's investigation. For instance, the ESI Questionnaire response specifies that chat 'messages are generally retained for a period of 30 days if they have been marked on-the-record, and potentially longer if on-the-record messages are on legal hold.'" Google also said, "it is no secret how Google's Chat product operates" because it's a publicly available product and the Google Chat website explains the history-off feature. The Justice Department's motion last month said things happened very differently. "Google systematically destroyed an entire category of written communications every 24 hours" for nearly four years, the government motion said, continuing [...].
Who is Google? It needs to be a person. (Score:3)
Re:Who is Google? It needs to be a person. (Score:5, Funny)
Re:Who is Google? It needs to be a person. (Score:5, Insightful)
Who authorized the deletion?
Auto-deleting chats and even emails is a standard policy at many companies.
Companies are routinely subjected to discovery, and without auto-deletion policies, everything they say is public information, which makes those channels useless for informal conversations.
Companies have no obligation to do the prosecutors' job for them.
Can you guess who else routinely deletes chats? The government. Nobody wants to be the next Richard Nixon.
Re: Who is Google? It needs to be a person. (Score:2)
Comment removed (Score:4, Insightful)
Re: (Score:2)
Or maybe it's a much more relaxed workplace culture, because people know that chat messages are quickly forgotten, the same as in-person conversations. That's a good thing when you have a lot of people working remote.
The other reason to do it is that if you don't, people will just create their own side channels to talk on anyway.
Re: (Score:3)
Not long ago a business could avoid being found at fault for not maintaining 'ephemeral' communications, (and chats and instant messages fit that description well) if, and really only if, this was their regular and established practice. Some communications, email particularly, would be expected to be retained, and of course documents generally would be expected to be retained also.
I've worked within that regime, and we were expected to not retain discussion or informal messages. We also were expected to ret
Re: (Score:2)
Re: (Score:2)
Technically correct, but I've never seen a company have a retention policy that sets retention at less than 3 months, let alone 24 hours.
Oh I don't doubt there are some exceptions, but I bet pretty much every company with a less-than-3 month retention policy has a shady workplace culture.
As explained to me by an attorney, deletion policies, as you point out, are perfectly legal. Until you are subject to a legal action, you are not required to preserve records and can follow a prescribed policy. Once legal action occurs, you can’t still delete them and claim you are following policy. Our attorney said if we suspected legal action would occur, such as when we got word the sheriff was about to serve a papers for a lawsuit and we bagged ass before he got there, collect relevant records
Re: (Score:2)
The well hated company I worked for had a 1 week retention policy.
all Emails: 1 week; no local backups possible, "save as" disabled in outlook; only way to archive an email was to take a screenshot.
all Chats: 1 week;
Re: (Score:2)
Holy cow, that's utterly draconian. Is this a publically-well-hated company that you can tell us about?
Re: (Score:2)
Given they were using Outlook... I'm betting Microsoft.
Re: (Score:1)
Re: (Score:2)
Auto-deleting chats and even emails is a standard policy at many companies.
Yes, and most of those policies came about because they want to avoid presenting that evidence in lawsuits.
Re: (Score:3, Insightful)
And that's why the government explicitly requested preserving all future chats at some point. Google agreed to the request, yet lied and deleted the chats despite the demand.
It's not the auto-deletion policy before the request that they're on the hook for, it's that the auto-deletion policy continued afterwards.
Re: (Score:2)
Can you guess who else routinely deletes chats? The government. Nobody wants to be the next Richard Nixon.
Partially correct. If you're referring to "chats" like in instant messages then they are treated the same as phone conversations and only documented when relevant to a litigation subject.
If you are referring to chats as email, then those are saved forever. That was one of the reasons Sec of State Clinton got into trouble for hosting her own email server that wasn't backed up to a permanent archive like all gov't email is supposed to be. It's also the reason that using personal or non-gov't email accounts
Re:Who is Google? It needs to be a person. (Score:5, Insightful)
Hillary didn't get in trouble. The DoJ went in front of cameras and essentially said, "Hillary is a bad girl and did bad things but no one cares, especially us, so stfu, move on".
Others have had their careers destroyed and jailed for far less.
Re: Who is Google? It needs to be a person. (Score:2)
The Trump and Bush administrations also did the same thing. They didn't prosecute the people in the Bush administration or Trump administration for it either.
But, yes, if these things were done even 1 layer lower, they'd have their careers ended at a minimum, and maybe even jail
Re: (Score:2)
Hillary didn't get in trouble. The DoJ went in front of cameras and essentially said, "Hillary is a bad girl and did bad things but no one cares, especially us, so stfu, move on".
What they actually said was "Hillary violated policies, and may have committed crimes, but we have insufficient evidence to prove that she committed crimes." The emails they had shows mishandling of classified information, but not criminal mishandling. The emails that were deleted may have contained evidence of crimes, but they were deleted, and the mere deletion was a violation of policy, but not a crime.
Re: (Score:2)
https://www.vox.com/2016/9/8/12846988/colin-powell-hillary-clinton-email
Doesn't absolve her of the infraction but goes to show that it was common practice.
Re: (Score:2)
No, sorry.
When he did it a number of policies were not in place.
When she did it, they were.
And -all- mishandling of classified information is a crime. There is no such thing as an infraction or misdemeanor mishandling of classified information. Nor does intent or being reaaaally soorrrry matter.
I have worked in a secure environment and had clearance and document handling training etc etc. There is zero wiggle room.
She should be in jail and Powell should be in jail next to her if his off site email had cl
Selective amnesia (Score:5, Insightful)
Isn't it funny how people have to fight Google for the right to be forgotten [theguardian.com] but Google affords itself the right not to record potentially inconvenient proof?
Re: (Score:2, Insightful)
That's what struck me the most. They KNOW how invasive and dangerous it is to be tracked because that's what they do to everyone else and they know exactly how powerful that is.
It takes a demon to know one. That company needs to be broken up.
Re: (Score:2)
Slashdot needs a "Recursively funny" moderation option. (Can of worms.)
"It's automated" is not a valid defense (Score:5, Insightful)
When your company is involved in a litigation, you have a responsibility to CHANGE YOUR AUTOMATION so it won't automatically destroy evidence. "Ooopsie! We knew evidence will be automatically destroyed and we just did nothing about it, that's not intentional!" is not a defence.
Google executives should sit in jail for contempt of courts until that sink in.
Re: (Score:2, Insightful)
Re:"It's automated" is not a valid defense (Score:5, Informative)
Re: (Score:3)
IANAL and from what I know willful destruction of evidence is a crime. But "promising not to" and then doing it anyway is almost certainly irrelevant from a legal stand-point in the absence of a binding agreement or court order.
If they were ordered by the court, as part of discovery, to provide certain information and THEN deleted it, then that is certainly at least one crime .. if not also contempt of court. But a company that has a blanket auto-destruct policy of 3 months seems to me like a grey area. The
Re: (Score:2)
Not true. This is a civil case. The actual requirement is that you take steps to PRESERVE electronically stored information. This is in the Federal Rules of Civil Procedure - no court order required. If you fail to preserve the information, and the court finds that you did so to deprive the opposing party of the information (like, by saying you will preserve it but don't actually do it), then the court can instruct the jury to assume that the missing information was unfavorable to the party that deleted
Re: (Score:3)
Only chats relevant to the lawsuit need to be retained. That is up to staff working on such products. It would be fooling to disable default retention for the entire company.
We get emails saying: this is our lawsuit, if you have any communications regarding 'specfic keywords mentioned in the lawsuit', make sure you keep them.
Re: (Score:2)
Only chats relevant to the lawsuit need to be retained.
I'd change "lawsuit" to "potential litigation" here, but otherwise, yes, that's true.
That is up to staff working on such products. It would be fooling to disable default retention for the entire company.
We get emails saying: this is our lawsuit, if you have any communications regarding 'specfic keywords mentioned in the lawsuit', make sure you keep them.
You can play things that way, sure... but here's the problem. If your employee makes an "honest mistake" and "forgets" to preserve something, you've destroyed evidence. Even if your employee makes an actual honest mistake and forgets to preserve something, you've destroyed evidence. You don't get to say "whoops, my bad" here.
A wise organization would not leave it in the hands of specific employees. They would, by poli
Re: (Score:3)
It's even worse than that. Destroying evidence is just a charge that can be fought. What your destroyed evidence is can hurt you plenty.
The Fifth applies in criminal cases. Case law mea
Re: (Score:3)
Destroying evidence is just a charge. That's relatively minor,
It can get you up to 20 years in jail, depending on the circumstances: https://www.pagepate.com/exper... [pagepate.com]
Re: (Score:2)
But it's a charge, that the prosecution will have to prove and you can fight with lawyers in a court.
Negative inference is potentially far more damaging because it flips the script - you have to prove that the information you deleted was not relevant (this is basically impossible) while the other side basically can get away with saying "the information that was deleted would've proved this".
It's literally
Re: (Score:2)
Re: (Score:2)
Only reference to the Supreme Court... Different can of worms.
Re: (Score:2)
Your answer is the best kind of incorrect, technically incorrect. It depends on the lawsut, to whether all conversations between specific people have to be preserved, or if all conversations about specific topcs have to be preserved.
With that being said, there is no reason that Google could not have enabled full retention for all conversations.
Re: (Score:3)
So... they should go back in time and turn off the 24 hour auto-deletion of instant messages after they get served litigation papers?
That's not what is being complained about here. As soon as litigation occurs all subjects of the litigation need to be put under legal hold from *that point forward*. Google is saying that forcing the change of the deletion setting is not reasonable, and asking individual employees to preserve just some chats is.
I completely disagree with Google by the way. I've been subject to legal hold a few times. Our IT force policies on us. I get a nice emails saying retention policy in both Outlook and Onedrive has c
Re: (Score:2)
So... they should go back in time and turn off the 24 hour auto-deletion of instant messages after they get served litigation papers?
It doesn't work that way. The duty to preserve attaches when there is a reasonable belief that litigation could result. There is no need to actually be served anything. If a competitor approaches you and says, "hey, we believe that $APP infringes upon our IP" or DOJ starts making noises about something, or something similar, that is when your existing retention policies need to be modified.
Re: (Score:2)
The duty to preserve attaches when there is a reasonable belief that litigation could result.
Who pays the cost of storing preserved data? Does civil procedure recognize a concept of an undue cost?
Re: (Score:2)
Who pays the cost of storing preserved data?
The party that reasonably believes that litigation is possible. You pay for your own stuff.
Does civil procedure recognize a concept of an undue cost?
Certainly not in this context. "Not destroying evidence" is a duty.
I suppose that if the evidence in question was something absurd, like the carcass of a blue whale, you'd be able to claim that preserving it in the event of future litigation was "unduly burdensome." But failing to preserve the communication of a relatively small number of people which likely amounts to, at most, a few GB (or, hell, let's go crazy a
Re: (Score:1)
No. It's too late to undo the damage, so it's up to the court to come up with a remedy. Some common remedies for destroying evidence include:
If this were minor, it would probably be limited to fines or being held in contempt. Since i
Re: (Score:3)
Re: (Score:3)
Re: (Score:2)
...Google executives should sit in jail for contempt of courts until that sink in.
Why bother? They'll spend the time scheming on how to make it more profitable next time by changing a few variables.
Yea, right. (Score:2)
Re: (Score:1)
2. At the left, click Data & privacy.
3. Under "History settings," click an activity or history setting you want to auto-delete.
4. Click Auto-delete.
5. Click the button for how long you want
Re: (Score:3)
I've brought this up before. Based on past experience (running into a Google calendar bug), I suspect Google's "delete my stuff" may very well just mean "don't show it to me anymore".
Re: (Score:2)
The most probable is that Google really deletes your data, but not data others have on you.
For example, if you have an email conversation using Gmail and decide to clear your inbox, Google will still have everything unless the other party does the same.
What I wonder about however is about cold storage (tapes). We know Google uses tape backups, at one time Google lost email from thousands of Gmail accounts because of a bug, and they had to restore them from tape. So while removing specific data from running
Re: (Score:2)
You seriously believe that Google actually deletes data about individuals when using their provided system or just hides it from you?
We're talking tracking data not email your recipient has a copy of.
Re: (Score:2)
You seriously believe that Google actually deletes data about individuals when using their provided system or just hides it from you?
Why wouldn't they? Unless there is a technical reason like the tape backups I mentioned. Few people actually want their data removed, most don't care, and many actually get useful features in exchange. I, for instance, make heavy use of location history, and I like the kind of content YouTube recommends me much more than what I get when I hide my identity. A minority will erase their data, Google can afford it, just like they can afford people who use ad blockers. And not actually complying is more likely t
Re: (Score:1)
You seriously believe that Google actually deletes data about individuals when using their provided system or just hides it from you?
I do seriously believe they delete it. Why wouldn't they? The value of a single user's data is negligible. The cost of a lawsuit for holding data they reported deleted is potentially expensive. It's in their best interest to do so. The majority of users probably don't know or care that they can delete their data, and Google gets to look good for making managing your data retention easy. It's win-win for them.
Re: (Score:2)
Because they are arrogant scumbags with a history from day one of having absolute disrespect for everyone else's privacy?
They don't care about lawsuits. Companies have a budget for Legal and just expect to have payouts no matter how they behave. But if a few million people delete their data for real that's real money they lose when they can't resell it to advertisers and government.
Short version: Google is run by scumbags who don't give a shit, just like most corporations.
Google may have provided the tool (Score:3)
But so did Microsoft, who provided the OS the user ran the browser on that allowed the user to turn it off. So did Dell (or whichever vendor) who provided the hardware, not to mention the individual vendors Dell bought the hardware from to assemble. Should we include the vendor of the mouse used to click the history setting off? Maybe and landlord or real estate agency that Google used to get the building the user was working in?
I'm with Google on this one. The history tool is a generic tool not specifically intended to delete chats rather than preserve them for legal relevant issues. Google provided guidance to employees on how to use the feature properly to preserve chats that legally needed to be preserved, and that guidance was in line with what the plaintiffs want. As far as I can tell the plaintiffs provide no actual evidence Google intended anything differently, only accusations. And has others have said... it's the individual user at fault here. Either you name them, or find evidence Google ordered them to delete chats.
Re: (Score:2)
As far as I can tell the plaintiffs provide no actual evidence Google intended anything differently, only accusations.
Have you actually read the legal filings?
Re: (Score:3)
But so did Microsoft, who provided the OS the user ran the browser on that allowed the user to turn it off.
If Microsoft became aware that it may be drawn into this litigation, it would have a duty to preserve evidence relevant to it.
So did Dell (or whichever vendor) who provided the hardware, not to mention the individual vendors Dell bought the hardware from to assemble.
Second verse, same as the first. If Dell became aware that it may be drawn into this litigation, it would have a duty to preserve evidence relevant to it. If its subcontractors became aware that they may be drawn into this litigation, they would have a duty to preserve evidence relevant to it.
Should we include the vendor of the mouse used to click the history setting off?
If Logitech or whoever became aware that it may be drawn into this litigation, they would
Re: (Score:2)
Intent is irrelevant.
They are a trillion dollar corporation. They can figure out how to do data retention of chats and emails they agreed to retain.
A tool for Sexual (and other forms of) Harassment (Score:4, Insightful)
This "tool" conveniently makes it increasingly difficult to prove Title IX discrimination.
Is it intentional?
Yeah, it is, because it saves Alphabet a shit ton of money in lawsuits.
Re: (Score:3)
No it doesn't. History is a setting for the receiver, not controlled by the sender, and as evident in TFS not controlled centrally by Google. If you're being harassed or discriminated against, and you voluntarily don't archive the evidence then we should apply another discrimination: getting rid of stupid people.
Re: (Score:2)
Not true for all apps. It's been a while but iirc corporate edition slack puts retention, backup, etc entirely in the hands of corporate admins. As a regular drone the options don't even exist. I had to screenshot everything at one company on my way out to cma on some shit that was going on.
Re: (Score:2)
It's been a while but iirc corporate edition slack puts retention, backup, etc entirely in the hands of corporate admins. As a regular drone the options don't even exist. I had to screenshot everything at one company on my way out to cma on some shit that was going on.
You're very kind. Unless I were the direct defendant in the legal suit I would have very much said it's not my job to preserve records, get the admins to do it.
Re: (Score:2)
I was preserving for my sake, not theirs. :-)
Pretty sure the corporate admins weren't going to send me a copy of all my chat records without a subpoena.
Re: (Score:2)
This "tool" conveniently makes it increasingly difficult to prove Title IX discrimination.
Unless you're suggesting that Google isn't, say, offering educational reimbursement opportunities, or training, to its employees equally regardless of their sex (which is about the only conceivable nexus I can come up with between "Google" and "Title IX"), you are shockingly mistaken on what Title IX is.
Re: (Score:2)
If I had to stretch it, I'd imagine the nexus as not offering the training needed for career advancement based on sex, or offering this training preferentially to employees based on willingness to grant intimate favors.
seriously they leave it up to employee to enable? (Score:2)
Re: (Score:2)
"It's a publicly available product" isn't much of a defense to "promised they were retaining chat messages but didn't."
Sounds like Google... (Score:3)
is using gobbledygoogle to get out of punishment.
Get a warrant for a wire tap (Score:1)
24 hours max should be the default storage for all electronic communications. If you want it, get a judge to sign a warrant like the old telecom days.
Re: Get a warrant for a wire tap (Score:1)
And your own recording device that Google doesn't have access to. Just like telcos. If you can't handle that, then it isn't your evidence, it's hearsay because it can be manipulated.
Re: (Score:3)
You are expected to retain all relevant communications if you even think it is likely that you will be investigated. Literally.
In this case Google was explicitly instructed to do so, so there is zero confusion. They willfully broke the law.
Two options, in theory (Score:2)
1) Google willfully destroyed evidence so they could pretend plausible deniability. Whoever proposed and approved that plan should go to prison for it.
2) Google negligently destroyed evidence so they could pretend plausible deniability. Whoever was responsible for preserving it should go to prison for that.
In this reality though, the worst-case outcome for Google will be a fine amounting to 3-5 seconds worth of profit (which will be appealed ad infinitum and never paid), and everyone involved will skate wit
Re: (Score:2)
One of my companies did something really stupid with customer data / privacy. Millions of people's "everything they have online" at serious risk / stolen and C levels refused to take it seriously.
After a few years of the government pestering the corporate lawyers, the company paid a 250k fine. Case closed. A huge success for the public! Justice was served for a few fucked people per penny.