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Comment by jeffbee | Hacker News Reader

Legal sanctions for spoliation are not always as satisfying as you are probably imagining.

Putting aside whatever predisposition you have about Google and this case, I do find it troubling that American jurisprudence is headed for a future where there is no such thing as going off the record, if you are using a chat app. Nobody thinks you have to record and preserve face-to-face communications, but apparently people want it to be that you always have to record and preserve them if there was some intermediate device used to do it, other than by voice. In the WFH era this bothers me.

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> no such thing as going off the record

Hard agree. I have personal bias in this case, but it’s crazy to me that sentiment on off the record chat in these threads has been so heavily weighted towards normalizing the idea that everything should be recorded. I would be horrified if certain of my Slack DMs end up in discovery at my current job. I have to admit that sometimes I just need to blow off some steam to my teammate who sits two states over, and we communicate on Slack or Zoom, both of which are automatically recorded and preserved for at least a short time. Bob in procurement is not a literal gnome-fucking-shit-smear-artist but sometimes I do feel that way. My barber doesn’t know Bob but my teammate sat in the same meeting where we got a raw deal so we bond over the experience by saying stupid things in a Slack DM conversation. Under the developing regime this kind of casual talk on company systems is a risk for both myself and my employer if it ends up getting keyword matched during discovery. Not sure where a reasonable line is but it does seem like the grey area needs urgent attention before tech turns into finance.

That's not a developing regime, it's been the norm since email.

But we are talking about messaging which has greatly displaced face to face conversation while email is flat or shrinking over the same time period.

>But we are talking about messaging which has greatly displaced face to face conversation while email is flat or shrinking over the same time period.

That's irrelevant, IMHO.

If an exchange is recorded, then it's fair game for legal discovery.

I'll give you some (modified[0]) 25+ year-old advice that's just as relevant today to messaging/collaboration apps as it was to email: If you wouldn't want to see it on the front page of the NYT/WaPo/FoxNews/HN/Reddit/Twitter/Facebook/Instagram/tiktok/BBC/Deutsche Welle/YouTube/etc., then don't put it in any recorded form.

And that goes triple for anything shared on platforms you don't own and physically control -- especially those owned/controlled by your employer.

You might just as well just wear a GoPro 24/7 and livestream the feed everywhere.

I'd add that in a professional setting, anything that might even be tangentially related might well be subject to discovery in the event of a lawsuit.

Don't like it? Get the laws changed. And good luck with that. You're gonna need it.

[0] The original advice referenced "local newspapers" and email, but since the former are mostly gone and (at least you claim it's so) "email is flat or shrinking", I thought I'd update it for you.

Edit: Fixed typo.

> If you wouldn't want to see it on the front page of the NYT/WaPo/FoxNews/HN/Reddit/Twitter/Facebook/Instagram/tiktok/BBC/Deutsche Welle/YouTube/etc., then don't put it in any recorded form.

Indeed, and 25 years ago the balance of communication was significantly less recorded, was the point of the story.

>Indeed, and 25 years ago the balance of communication was significantly less recorded, was the point of the story.

You're absolutely correct.

And for those of us who care about our privacy, more's the pity. :(

Pretty sure it's been the case since long before then. If you read Jane Austen novels, it's pretty clear that w/in London it was possible to send notes back and forth with only a 1-2 hour latency, sometimes less.

Or consider the following quote from That Hideous Strength, written and set in the mid 1940s; the "Bill" in question has recently been murdered:

---

"There's a letter you wrote," said the Fairy.

"What letter?"

"A letter to Mr. Pelham, of your own College, dated six weeks ago, in which you say, 'I wish Bill the Blizzard could be moved to a better world.'"

Like a sharp physical pain the memory of that scribbled note came to Mark. It was the sort of silly jocularity one used in the Progressive Element -- the kind of thing that might be said dozens of times a day in Bracton about an opponent or even about a bore.

---

If that scene was written now, the message in question would certainly have been a text. Email is certainly much more convenient than snail-mail or inter-departmental memos, but people have been writing short, quick notes to each other for millennia.

NB a few minor edits.

Did you miss the briefing in kindergarten where the rest of us were shocked, shocked I tell you (!) to learn that every bit transmitted on a corporate network or from a corporate device will be used against you at the slightest provocation?

> Ggome-fucking-shit-smear-artist [...] if it ends up getting keyword matched during discovery

I'm forced to point out that, maybe, working at a company smuggling erotic gnome depictions should be avoided in your specific case.

First off, welcome to Third Party Doctrine. If you don't like it, write your Congressperson and get them cracking.

Second: this is only a problem where you have significant pressure/attempts to specifically avoid leaving paper trail in order to do something dicey. If you're fairly sure you shouldn't be doing it, and the only thing keeping you from talking about it is being on the record, then blurt that shit out on the record, because odds are you shouldn't be doing it.

> American jurisprudence is headed for a future where there is no such thing as going off the record, if you are using a chat app.

Companies could set up internal chat solutions where conversations aren't logged.

But they'd like to spy on everyone's message traffic for their own purposes, at that point their logs are subject to subpoena.

> Companies could set up internal chat solutions where conversations aren't logged.

No, transient storage of chat records has specifically been categorized as unacceptable in exactly these ongoing Google litigations.

It's only an issue in the current Google litigation because Google's current chat solution apparently has an option to enable logging for everybody. If you have an internal chat app that never logs messages -- say, the sender looks up the recipient's IP address on the VPN and connects to them directly -- then a court can't order you to write new code to enable logging. But if your chat app has a big master "log all messages" switch, a court can order you to turn it on.

> If you have an internal chat app that never logs messages -- say, the sender looks up the recipient's IP address on the VPN and connects to them directly -- then a court can't order you to write new code to enable logging.

No, they absolutely can. You may be confusing this with various first amendment cases about compelled speech, given the focus on a court ordering code authorship. A regulator does not have to concern themselves with the mechanism of storage, they can simply designate communications as requiring storage. And they have done so in the case of electronic transmissions. The relevant law allows regulators to compel retention of written communications. Storing a communication in memory and sending it over the network to the memory of another computer for display is by itself sufficient to qualify as a written communication.

You're still fundamentally conflating "aren't logged" with "are logged, but chats expire".

Consider what would happen if a company deployed a system of microphones across their offices such that all in-person conversations were logged. They'd then look at these logs, discipline people based on "private" exchanges etc.

Then when they got into some legal trouble they'd say "oh, we'll keep the microphones and surveillance practices, but expire the records after X days".

That's fundamentally different from the situation of simply removing the surveillance. A court could very reasonably conclude that the company is structuring its affairs in such a way as to avoid court oversight.

I've worked at other companies with similar expiry policies. It's well known in the industry that everyone does this to avoid discovery.

For the employees it's the worst of both worlds: You don't get privacy, and you also can't look up some valuable exchange that happened 90+ days ago.

I think the courts are right to call companies on this particular line of bullshit, and very much doubt that the government could force companies without the proverbial microphones everywhere to install them.

It puts a premium on in-person face-to-face communication.

I'm okay with that, so long as any potential employer understand I also put a premium on it.

I don’t see any issue with that if it only applies to corporations.

I have several questions.

Exactly how bored are you?

Are you thinking C corporations like couple-owned small businesses and startups?

Accurate Zoom transcripts can be automatically created for every call but this feature is off by default. When it defaults on, does the same rule apply?

In terms of the rules and regulations, is there a digital means to have a private conversation?

Am I permitted to FaceTime?

Under what circumstances can myself and a co-worker communicate on personal devices?

What is your personal opinion on return to office vs hybrid vs all-remote or remote first?

I'll let you in a a little secret[0]: Three can keep a secret, if two are dead.

[0] It's not really a secret, but rather a concept you might want to consider if you value your privacy.

I can’t help but be amazed how willingly people are to give power to the government to surveil you.

Would you really be okay with the government knowing everything you say during business hours? Should they also force companies to have microphones in conference rooms when you speak in person? In the bathroom?

I can't help but be amazed how many people think they have any agency at all over what the government and their employers can and will gleefully do.

This isn't government surveillance. This is companies keeping business records. Or more specifically not throwing them out when they might be evidence in a legal proceeding. They only end up in the hands of the government when the government has brought a lawsuit and a judge has decided the records are relevant.

And recording meetings isn't the stretch you might think. Financial companies have long had a variety of legal obligations to record communications related to financial trades and customer orders. This isn't just for funsies. Trust in the financial system is an incredibly valuable societal asset, and good records both mitigate errors and reduce crime.

As we see with the rise in recorded video meetings and auto-transcription services, plus the utility of from things like Slack's search, companies are seeing the value of keeping track of what happened. But that's not new; I don't know how far back the custom of meeting minutes goes, but it was in Robert's Rules of Order in 1876. [1] So it's entirely plausible to me that in a generation's time, auto-transcripts of every meeting will be seen as normal, with auto-summarization and LLM querying thrown in for free.

[1] https://www.fulltextarchive.com/book/Robert-s-Rules-of-Order...

Financial companies should have higher regulator standards since if they fail, our taxpayer money is on the line and any malfeasance affects people’s lives.

Google is just an adTech company masquerading as a search engine? Who cares?

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