Epic Games, others accuse Sundar Pichai of violating retention obligations

We tend to increasingly use chat rather than email for contacting individuals or small groups about something. I guess I assume it's still all archived.

On the other hand, we don't really call people anymore. Certainly out of the blue. Much less talk in person.

But (I guess) if you want to have an off the record conversation you really need to have a call.

Yes, there was (and still is) always going to be "off the books" conversations. In the UK we're seeing news of our politicians using WhatsApp as a back-channel for comms they don't want appearing in official records. Business is undoubtedly using such technology too.

> We have talked before about the SEC’s probe into how the employees of big banks discussed their work in text messages and chat apps like WhatsApp on their personal cell phones. The SEC has collected big fines from the biggest banks because, it has said, these chats violated the SEC’s recordkeeping requirements.

...

> From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.

> ...

> 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.

> Of course the SEC does not entirely mean this. Yet. But in like five years, technology — and the SEC’s interpretation of the rules — will have advanced to the point that banks will get fined if their bankers talk about business with clients on the golf course.

https://www.bloomberg.com/opinion/articles/2023-02-02/the-se...

But your written records are fair game as evidence, including your personal diary.* The right not to testify is really more about "so there's no incentive to torture you" more than it is a civilized notion that "we are gentlemen, let's have a level playing field, my secrets against yours". Then in addition to that, there are also document retention laws for documents that seem like they will be pertinent in the future, court orders during litigation that are even more restrictive, and corporations held to higher standards (there isn't generally going to be evidence of a person lying to himself, but corporations inducing employees to lie is more directly in the crosshairs)

*from a quick search "Even if a diary doesn't contain relevant evidence, courts will usually allow the side requesting to see it to make that determination for themselves. Particularly in cases where a party is alleging physical or emotional injuries, diaries are rather helpful in understanding what a person has experienced due to their injury. If a party kept a diary before the injury occurred, it can also help to show the contrast between life prior to and after the injury."

https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=...

Online chats exist as digital data ab initio, the issue is not creation (which had to happen for there to be a chat) but retention. The fact that the UI of a system may present things suggesting that “creating” a record is a separate act does not make it so.

So how would the law here work? If I delete my chat logs it's illegal. But if I create a feature that helps me delete my chat logs, it's not?

Honestly I have no idea.

Sounds like he deleted them to me.

Chats in their messenger program are written records that need to be retained. Even in their magic "off the record mode", Google retained those messages for 24h.

Chats probably got rolled into rules established for email.

It turns out when a company is big enough to generate billions in revenue yearly or has tens of thousands of employees, the laws governing it are different from the laws governing an individual! This may be difficult to reason about since Corporations Are People(tm) but we apply special rules to them because they have more power than a real person.

More seriously, one good reason to require reasonable record retention in big companies, is that if multiple employees at a company collude, they can do irreparable harm to others in a way that a single individual cannot.

Also note that in some cases as an individual you could also be compelled to retain records, like if you're under a subpoena, afaik.

But not retaining records when under a legal hold can be very bad. The judge can impose sanctions/fines, and of course it can color the rest of the case and bias the jury against you.

Would going for a coffee or walking meeting be in bad faith?

In court, testimonial evidence is usually presented under oath, under penalty of perjury. If a company is subverting recording information by only discussing sensitive items in person, a good lawyer will put multiple witnesses on the stand, ask them all the same questions about the sensitive topic, then poke holes in the inconsistencies and see who cracks first on the witness stand. It might be hard to get someone to disclose the sensitive subject, but it’s rather easy to catch someone in a lie or a cover up. That’s usually good enough.

I would personally hope that if someone is obligated to retain records, turning on an 'auto-delete' for any kind of record would be strongly discouraged, regardless of whether it's chats, emails, voicemails, etc. They could always just talk in person, then there's no recording to delete.

The 24-hour auto-deletion is just a default that can be easily disabled, which is what you would do in this scenario. After you disable it, none of the messages in that chat will get auto-deleted going forward.

That setting isn't buried deep in the menus either. You just right-click the chat for which you want to turn on history, and then left-click the "turn on chat history" button. You do it once for a given chat, and you never have to revisit it again, it will stay turned on until you intentionally turn it off.

It helps that when you open a chat with a new chat group/person, it displays in very large text in the center "Turn on chat history to prevent messages from being auto-deleted in 24 hours", so it is difficult to forget to do so either.

Around every corner there is a dialog which asks for permission to store extremely personal data, such as your GPS location or browsing history, indefinitely.

See how much Google values its users safety vs. its own safety...

"From the outside it appears very, very difficult to imagine that Google will get away with what it's done."

There is no law compelling you to write down every word, thought or discussion that takes place in the office. Google was subject to litigation holds. That means you can't destroy evidence if it might be relevant, it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? The author's inability to imagine Google's lawyers successfully making this argument reflects poorly on their imaginative skills, not Google.

Can you set longer limits or is it all ephemeral?

(We use Workplace at work that has infinite retention by default.)

This is some incredible Dark City shit!

That’s something that will arise out of a specific lawsuit, and will be an order from a judge that says the company is required to preserve documents and other evidence that pertain to the litigation.

So, not a general law that’s required all the time, but an order from a Judge in specific cases, that apply for the duration of the case.