> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.

> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication.

Wow. This is the opposite of how I feel. Mega-corporations should have their communications logged at a much higher level than a normal business. The things that have come out in court show how they manipulated their customers (advertisers). Regardless of how you feel about advertising a portion of those companies are small mom and pop shops trying to get by. If you have communications that can be used as evidence you're probably in the wrong.

It ends up as evidence when routine business operations are breaking the law. Everywhere I’ve worked hasn’t had an issue with this stuff being tracked and several places actively preferred when stuff was recorded. Most companies don’t have an issue with clear communication because they’re not worried about what’s being said will end up part of a criminal investigation.

So this is something that’s almost exclusively going to harm criminal organizations by making them less efficient.

That sounds like a win win.

I don't know, looking back in over two decades of my career in the industry, I can hardly think of any communication that, if it ended in evidence, would constitute any trouble. Sure, some would be embarrassing for me personally, revealing me asking stupid questions, making wrong decisions and being responsible for some failures, but that's life. There would be some commercial secrets, sure. But noting that I would need to work hard to conceal.

Maybe that's because I am a low level code monkey and communications in the higher spheres are full with nefarious plans about how to do illegal stuff and suppress competitors - but honestly I never observed anything close to a picture that you are painting.

"Google produced 13 times as many emails as the average company per employee did before it was a decade old, Kent Walker, Google's top lawyer, testified in the Epic trial. Google felt overwhelmed, he said, and it was clear to the company that things would only become worse if changes weren't made."

According to Google's own testimony this is a Google problem not a problem shared by the other average companies that produce 13 times less email per employee than Google.^1

A reasonable person might suggest that the company's employees try to produce less email (and instant messages) like other companies.

Instead, a crook might agree that the company destroy email (and instant messages), potential evidence, immediately after being created.

But Google does not do that by default for the public with Gmail and its instant message services. Maybe because the average user is not a crook.

1. Google probably has far more than 13 times the amount of storage capacity than the average company.

Destroying potential evidence at a company is what it is. It is not like there are multiple ways to interpret it. Google did it even after they knew they were being inestigated.

> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer

Just pick up the phone or meet in person and speak plainly.

Many of the senior mandatory corporate trainings I've been to, often led by lawyers, basically state that "e-mail is evidence-mail" and to watch what you send.

> in the current legal environment

Has somthing changed? The current legal environment seems to favor corporations and deep-pocketed litigants. The US Supreme Court keeps giving them more and more power, including free speech, freedom of religion, unlimted political donations, etc.

It's not journalists that have weaponized the law, it is corporations. The assertion that the overwhelmingly powerful are victims is awesome propaganda - attack the other side (with what you are guilty of), change the subject, etc.

With the likely coming war on journalism, I'm sure this will be a popular talking point. Maybe it's being previewed now?

> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.

Most orgs I've been at with this concern either on a large or silo'd level, will either change policies to fit, whether that be retention times for chat messages or guidelines to not record certain types of meetings/etc.

> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.

Mixed bag. Not every org will be OK with someone bringing up various regulations known in a recorded meeting, or even saying the potential number of impacted risk cases on a call raised with an issue in production. OTOH I've been at shops where I asked about the legality of something and it was thanked for being on the record (Thankfully that org was super-compliant and it was never about production, only design.)

This comment would make sense if all companies communicated like Google does, but they don’t. Most companies have remarkably open internal conversations.

> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication

Funny really that it was Eric Schmidt who said on the topic of privacy: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."

"... except if you're a corporate employee in a routine business conversation" – added Schmidt after some additional consideration.

Is something like Signal disappearing messages illegal?

I remember when Mark Cuban tried to make his CyberDust app.

having worked at a tech company subject to a “legal hold” just in case the government wanted to sue us in the future, i agree that it’s absolutely asinine. have to save every device, every file, every email, every chat, every document, forever, indefinitely? what does it even mean to “preserve a document”? can it be edited?

[dead]

As cheap as storage is, we're going to end up in a situation where every business with >100 employees is expected to have cameras and microphones recording and transcribing every conversation just in case people might be communicating outside email and chat.

People love to demonize journalism, but who else will hold the powerful like Google to account? The meme of demonization comes from the powerful - 'enemy of the people', etc.

> journalists will happily take any comment, from any employee, from any context, and make it Crucial Evidence(TM) of impropriety...

I think that's more a problem of social media, where it seems true more often than not, and not professional media, which actually reviews evidence, corroborates, etc., and are subject to expensive lawsuits if they fail (e.g., Fox News has paid out something like a billion dollars over smearing the voting machine manufacturers).

It depends what you call 'professional', but I mean high-quality sources like NY Times, CBS News, etc. (Yes, you can find where they've been accused of failing, which of course will happen, and where they've actually failed - there's nothing perfect under the sun).

The targets of professional journalists' investigations will lie their asses off - until they are caught, and then they switch to a fall-back lie. They also use the tactic of attacking the messenger. They aren't under oath or required to answer questions.

I don't think that is true. I'm sure they are more concerned about legal consequences than PR, even if both are important.

The press comes in for a lot of hate from just about everybody. They must be doing something right.

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We’re not even allowed to add watchers to our legal Jira since our lawyers have told us it destroys privilege if there are multiple people in the discussion with the legal team. No chance if that’s true that a “cc:Lawyer” would provide any meaningful protection.

I'm a little skeptical of the article, because I know that it's not a legal shibboleth, and I think I learned it when working at Google quite a long time ago.

I suspect "put “attorney-client privileged” on documents" is only a policy in specific areas within Google due to poor leadership in those specific areas, and that's being magnified for clicks/outrage.

Yes, and it can actually backfire, by opening the floodgates to all communications. (As you lose all credibility after some point.) You are just betting nobody is going to keep digging.

I imagine that this is done to pollute the corpus. When lawyers do want to eventually wade through Google’s docs, if every doc says it's privileged, then they have to wonder: can that notice be ignored on this doc, or is it actually privileged? (This does hinge on “crying wolf” not invalidating the privilege of actually privileged documents.)

You see Google as an innocent victim?

> Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.

What is specific to Google is that they have monopolies, and it's illegal to use that power to kill the competition. One solution is for a manager or executive to say, 'no, we can't do that' instead of promoting the idea.

> It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation... That is deletes information.

Not at all. Obviously, Google's mission is to organize the world's public information. You don't want Google organizing your personal Gmail for the world to see, do you? So why would you expect Google to organize its own instant messages for the world to see?

> You have the DoJ and three judges looking at you with your pants down.

Judges disagree with each other. All the time. Investigations often don't even make it to trial because there isn't a good case in the end. And just because you have judges investigating you doesn't mean you're guilty. Presumption of innocence and all that, you know?

I was watching Kennedy's (RFKjr's daughter) interview with Tucker and she talked about her first day at work at C.I.A. and instructions on how to tag emails. She said there was a huge drop down and she was told to just set a default (which turns out is the highest possible security setting) "even for things like 'want to go get a coffee?'" Quite clever since that set of emails will be an enormous pile of mostly useless chit chat with other matter buried in the mess.

This isn't really a special case. Google provides similar retention policy settings to other organizations that use Google Workspace [1]. Any large organization that's a target of lawsuits will likely find them useful.

[1] https://support.google.com/vault/answer/2990828?

Did they not have the indef label at that time? In any case, at some point your collaborators will leave institutions and thus get a new email address. What happens then?

Good point. To add to that, I hazard a guess that the legal costs are about collecting everything for discovery, and not necessarily about them causing Google to lose legal cases.

> He said legal costs were increasing exponentially while the value of old email was only linear

Uh this sounds cool at first when you say it, but what does it actually mean? Can't he just say legal costs of keeping that email is more than the value of it. How did he derive exponential?

It's illegal to destroy evidence of a crime but it's not illegal to avoid creating evidence in the first place especially if you genuinely believe that you're not doing anything wrong. Generally speaking, companies are not obligated to preserve every chat forever just in case they get sued later on.

> The penalty they’re facing in now way accounts for the money they saved by concealing evidence, which basically means “keep doing it, it works!”

This is a free long term loan. It's almost like corporations pay for the laws to be like this.

>I personally saw the advice to cc a lawyer with a legal question in order to bring a conversation under attorney client privilege.

Does that work legally though? If it's not only sent to the lawyer then you can't really claim that it's privileged information.

Everything that happened around this time was so fishy. I completely lost trust on Google doing the right thing at this point as they were silencing people protesting against working with military/defense contractors.

>Gchat logs were specifically reduced company-wide explicitly to avoid court discovery

While heavily pushing Gchat to corporate customers.

At least you can't accuse them of getting high on their own supply.

> How much do the lawyers deserve to know?

Nothing IMO. They can look at the company's actions. There's no need to invade the privacy of individual employees.

If they were trying to confiscate my personal mobile that I use for work I will never go along with that.

Luckily I live in Europe where the atmosphere is far less litigious.

Better to just have a website for anonymous tip offs where you can download a private key and collect a fat reward if it ends up being used for a prosecution.

Or we could do the opposite and have corporate whistleblowers like the boeing ones mysteriously die off while everyone just makes jokes about it.

> every communication within a company could be recorded forever.

Within 15 years we will probably wear a necklace or other device that will record [at least the audio] of our entire lives. This will have a number of positive benefits (memory augmentation, etc.) but also as train data for AI.

you don't need to wonder, go and read up on the madness that is Bridgewater Associates

Yes, these are terrible policies, which has gotten Google in hot water during litigation. Overusing Attorney-Client Privilege is a good way to get it neutered/curtailed during a trial. Moreover, the company has an affirmative duty to preserve data. Leaving it up to individual employees to retain data risks adverse inferences about the lost data, sanctions, default rulings, and worse depending on the circumstances.

> It encouraged employees to put “attorney-client privileged” on documents and to always add a Google lawyer to the list of recipients, even if no legal questions were involved and the lawyer never responded.

> Companies anticipating litigation are required to preserve documents. But Google exempted instant messaging from automatic legal holds. If workers were involved in a lawsuit, it was up to them to turn their chat history on. From the evidence in the trials, few did.

At my previous company (a big semiconductor vendor) the legal dept made it clear that if you had a question, you did not ask them by text. You rang them, because that made it privileged. But they didn't try to escape from discovery of emails - they were retained.

Actually they wanted some retention, because for them a big thing was to have evidence of the date you invented something in case of patent litigation. Everyone was given a paper journal in which you were supposed to make notes, which I totally failed to do.

Indeed they make the world's information [0] accessible [1]!

[0] Excluding certain information

[1] After these paid messages

> definitely don't say "we will kill the competition!!" in email or chat

My first reaction when I went through this training was that the US legal system is completely absurd in the context of corporations, and can't result in anything but absurd outcomes, whether the litigation is successful or not.

There's quite literally a guidebook that says "don't say 'kill the competition', say 'we will make the best product' instead", etc. It's an obsession with words, and while I can understand how that's important in some civil cases, it's (a) trivial to conceal the coded speech to the point of cringe (see exhibit A: the TV show Billions, where the phrase "I am not uncertain" is used to somehow create plausible deniability), (b) you're gonna get a bunch of false positives from non-decision makers talking colloquially and sarcastically to each other and most importantly (c) it's completely meaningless anyway because intent means nothing to an amoral corporation. Wrongdoing by giant behemoths should be judged by what the company does, did they compete unfairly or not. Their nifty word-weaseling, or a random employee's clumsy lack thereof, should have no bearing on the case.

The fiduciary duty in law is just to not intentionally scam investors.

Then turning out not a profit is a risk they took investing and you have no duty to focus on their returns.

"Fiduciary duty" as people imagine applies to companies almost entirely doesn't exist.

Laws have always been weapons, they're the weapons the people use to protect themselves from corporations, and the weapons a society uses to ensure the health it its members.

> turn into PR nightmares

Shouldn't corruption be a PR nightmare?