I lost count of the number of times that Google execs (and senior directors) emails showed up on the front page of the Times after that; one time I opened the Times to see my own manager's email advising the android team that it was fine to reverse engineer Java code from Sun into Android.
It’s not just a warning, it’s reality, as you’re seeing play out here.
Legal opponents will use whatever they can get ahold of. At a certain scale, it’s guaranteed you’ll have legal opponents - often constantly! - no matter what you do. Though some courses of action will certainly result in more of them!
The question is, is it better or worse than the alternative? And how likely is it to actually cause you harm?
Because I’m pretty sure a bunch of emails saying “We’re going to crush x by locking up the market.” would be worse. We’ll see how this plays out though!
It is weird that the legal system has developed where absolutely all communication except that which has lawyers can be discovered in court. Almost like a guild support it's members. But if that's the way it is so be it.
Everything will now be feature more lawyers and education on law will be client attorney privileged.
Then it’s covered.
If they aren’t, it’s not.
10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.
100 folks listening to a presentation? Definitely not covered.
“Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?”
Privileged: whether or not that is going to be a problem from an antitrust perspective
Non-privileged: Joey said that we can kill the competition with this new feature
The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation.
What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.
Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.
There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.
Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.
Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.
“[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.”
https://law.justia.com/cases/federal/district-courts/rhode-i...
It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc.
Point taken though, and thanks for the cite!
It was a training given widely, and online. It was arguably broad and generic. It was given unsolicited (unless you count every training an employee is told to do as unsolicited).
The fact that you misunderstand the entire factual and procedural posture of this opinion should key you in to how out of your depth you are. Every discovery fight is a special edge case, that’s why I said corporate privilege is hard in theory and even harder in practice.
(A good heuristic for legal reasoning is that anything that sounds like a “one weird trick to avoid getting prosecuted” listicle item has already been picked clean by the courts.)
But frankly, all the G stuff was with attorney guidance and well vetted. It already had what you’re trying to get to the best of the very well paid attorney’s ability.
"-- ATTORNEY CLIENT PRIVILEGED --"
So besides being in good standing with a member of their guild you also have to preface your communication with their religious texts. \s
That only applies when corresponding with counsel, and even there in limited circumstances (not everything can be privileged). If no attorney is addressed, it cannot be privileged.
IIRC, applying the label arbitrarily risks all correspondence being made discoverable.
-----BEGIN ATTORNEY/CLIENT PRIVILEGED BLOCK-----Not only that, but if you have the wrong people in the room, then you can lose what would otherwise have been attorney-client privilege.
I was once told by a lawyer that emails were privileged (assuming you are communicating with your corporate counsel) but Slack messages with the same person were not. Is this just a lack of precedent with Slack?
- you have to have a reasonable expectation of privacy for the communication (yelling it across a crowded room, or using a line you know is recorded by someone else means no privilege)
- it needs to be a legitimate attempt to receive counsel from said attorney.
- the only other folks who are in the communication are also related to the matter and also clients of the attorney (or attorneys for you).
So asking your attorney ‘hey, I ran over someone - am I in trouble?’ over direct private email (or other channel) that is private? That’s privileged.
CC’ng your attorney on a thread where you’re conspiring between 3-4 other people so that ‘it’s attorney client priviledged’, but the thread isn’t about you getting legal advice about the legality of the endeavor?
Not privileged.
Think of it this way:
- the courts want to be sure that you can have direct conversations with your attorney on legal matters. That includes asking questions about the law, defending yourself, etc. and they don’t want you to have to worry about putting your foot in your mouth in the process. Because a big reason attorneys exist is because people will put their foot in their mouth constantly without help.
- the courts also want to be sure that the truth of any legal matter (with the assistance of your attorney) is found in a speedy, accurate, and expeditious manner.
So if you aren’t legitimately trying to get legal advice or help? Pound sand.
You still need to be careful with email too. Just because you are emailing a lawyer doesn't make it automatically privileged, though there is a much stronger presumption and argument for privilege. But, like, your plans to go to the bar with your lawyer buddy after work are not privileged, even if they are also your corporate counsel. It still needs to be related to legal advice, or in anticipation of litigation (which itself is a very large umbrella that gets you a lot of privilege for otherwise mundane corporate communications).
At any rate, a good counsellor will tell you what is safe and not safe. Be sure to take it seriously.
One obvious reason: there are pro-bono and state-provided attorneys, but they still retain the privilege with clients that don't pay.
There's no requirement for money to change hands, and the mere act of doing so doesn't create an attorney-client relationship where one doesn't otherwise exist.
https://arstechnica.com/tech-policy/2022/03/google-routinely...
If I'm understanding this correctly you proactively filter comms through an AI. If it detects you said something that could be interpreted a certain way the communication isn't sent and the user is told to be more careful in their phrasing?
That's pretty brilliant to be honest. Except maybe the discovery will then be on what the AI filter was instructed to prevent as if that's an admission of guilt.
I absolutely think this is a good startup idea, and have been pondering building out a prototype.
I don’t love it, but in so many ways when you sit down and look at the alternative to it that isn’t tearing down or radically altering the existing legal system, it’s actually the better platform for the future.
Unfortunately there is a plethora of social control (and behavioral modification) issues intrinsic in this technology area, and like medical it requires some serious and open ethical exploration.
Thanks for the good comment.
I guess we'll get an idea by the result of this lawsuit.
If it is said in a way clearly making it obvious that not just the words, but the intent is bad, and to instead do the other thing? Seems likely to not be an issue.
If it is saying the intent is fine, just use the other words? Then yeah.
If it gets to the press, chances are it’s being spun the opposite way that context would show it was being used, because that’s how it usually works to get clicks.
The devil is always in the details. If you kill the US steel industry by being a government that pays people to buy steel from your country, that's problematic. If you just make shit and people like it, though, that should never be illegal.
The issue is that, once you reach Google scale, you have so many tools to put the competition out of business that are unrelated to product fit. And, in the case of Google, they've been known to do just that.
So yeah, you can't really compare an incumbent with monopoly power to an underdog, just like some sentences from young kids are hilarious, that would be chilling if adults said them.
I think this "Others must lose so that I win" attitude is one of the more toxic attributes of this Thunderdome Capitalism so many industries have somehow ended up in. Wouldn't it be great if we could have dozens of businesses all successful, all doing "somewhat good" rather than having to always have a small number of winners that take everything?
If I'm going to open a laundromat a block away from Paul's competing laundromat, I'm not doing it to try to put Paul out of business. I'm just trying to capture enough business so that we can coexist comfortably. Some entrepreneurs just don't know the meaning of the word "enough".
Antitrust has a long history and it has nothing to do with tech.
In Google's case, I suspect "search" will die to AI like Blackberries died to iPhones. Google is already proving that its size and bureaucratic unwieldiness are major obstacles to its competing in the AI space. Would we really hold back the vast social benefits of this progress because we object to some people becoming obscenely wealthy?
> But if your laundromat is better in some way (service, cost, marketing), why wouldn't you want to grow?
Maybe you just want to run a laundromat? Is that not enough these days?
> Maybe you just want to run a laundromat? Is that not enough these days?
It's enough, until someone comes up with something that disrupts the industry. In a fast-evolving world, standing still is a doomed strategy. Do you really want to be the bookseller when Amazon comes along? Or the taxi driver competing with Uber? or on the board of RIM watching the Apple keynote in 2007?
Edit: Come to think of it, this rather parallels the natural world. Very few creatures have been able to stay relatively unchanged for tens of millions of years. They have been able to do so because the niche the evolved to optimally fill has remained unchanged and undisrupted. The rest of the natural world undergoes constant churn as new species emerge and others go extinct. It's the same in business. The less likely your niche is to be disrupted the more insulated you'll be from the necessity to change (assuming you've optimally adapted). Prime examples are best-in-class restaurants, whose proprietors often do just about the same thing their entire lives very successfully.
If it was as simple as people just ceasing continued use of the product, one would expect a large dip. If there are other effects in play besides "use that which is better, switch anytime" (e.g. anticompetitive behaviors), one would expect there not to be.
So, what reality do the numbers reveal?
p.s. the same exercise can be done regarding google's enshittification of search, and seeing how many people change the default search in chrome as a result
It depends on your timescale. Early adopters are already shifting away from it. I don't expect these effects to be immediate, but do you expect that everyone will still be using Chrome in 10 years? 20? 30? The same can be said of search. Early adopters are already using ChatGPT for many queries.
I do, if this efficient market hypothesis were to hold true
The changes to the browser were immediate from one version to the next, what would stop everyone who doesn't like that from switching browsers instead of upgrading?
The fact that it isn't immediate kind of proves the point: the market doesn't always favor the best product, because dominant players can exploit their market position to make anti-features and hide them from users
If there was a truly efficient market, this behavior would be immediately punished. That it was not, proves that there is not.
If a dominant company can abuse its users for a decade or more before the market handles the problem, that speaks to a lack of a competitive environment, or anticompetitive behavior. The market has failed, and thus some intervention is warranted to stop the abuse sooner than that. I propose for your economic theory, though, the title of "eventual efficiency" in markets :)
> what would stop everyone who doesn't like that from switching browsers instead of upgrading?
The fact that they're human beings with their own lives and finite attention spans. There is an entire body of work segmenting markets into categories like innovators, early adopters, early majority, etc.
Did you wait in line for an iPhone on launch day? Why not?
> If there was a truly efficient market
https://en.wikipedia.org/wiki/No_true_Scotsman whats a truly efficient market?
> that speaks to a lack of a competitive environment
The environment is plenty competitive. There is no further proof required of this than the continued rise of new companies that displace their competition. In a thriving ecosystem there is lots of death as well as lots of birth.
> The market has failed
It hasn't, it just doesn't move on timescales you can relate to easily. Organizing people to make and distribute things takes unimaginable time and energy. Supposing that a centrally planned intervention can be more efficient is the height of communist fallacy. It has failed every time it has been tried.
the environment is not competitive enough. There is no further proof required of this than that google can abuse its users and make products worse for years, perhaps decades, without experiencing market punishment for it
the end determines the sufficiency of the means: if the end is that google can do that, the current means are insufficient, because that is bad
> Organizing people to make and distribute things takes unimaginable time and energy.
it absolutely does, far, far moreso when you're going up against a giant like google
solution: slay the giant. We've tried not doing so, and it brought us here, to this failure point.
But the problem I'm looking at here is the phrase "...you're under investigation for abusing monopoly power..." anticipates the result to some degree. This is a an exhaustive list of the guidance lawyers can provide. Both seem to anticipate that some wrongdoing has been done. It leads to shallow thinking:
... you're under investigation for abusing monopoly power and lawyers tell employees not to use phrases like "We'll crush the competition".
... you're under investigation for abusing monopoly power and lawyers provide no guidance, then employees use phrases like "We'll crush the competition".
Most of the work is actually being done by the initial frame, not what the employees are told.
[0] I wouldn't know, I don't use Google search.
Did Google give Chrome a boost? Yes. Was that a good thing? Also yes. Chrome was the better browser at the time they did that - still arguably is. But that doesn't mean monopolies are involved. Apple gives privileged advertising to the iPhone, iPod and iPad on their website and they aren't a monopoly in any sense.
Google is arguably less of a monopoly in pushing Chrome because they sell advertising to other people. I'm sure Samsung would pay an absurd amount of money to get an ad on apple.com with any URL path. In theory Google could be a monopoly and put a chrome ad on google.com but the fact is that they aren't a monopoly and pushing chrome did good for the world, not harm. They're just providing exceptional products and people trust the brand [0].
[0] Trusting brands in software is silly.
AlphaSite: "Google has a monopoly and used it to build a second monopoly [argument]"
There isn't much there to address. But I did directly address it.
(1) He claimed that Google had a monopoly, I ignored that because I'd addressed that in my original comment.
(2) He claimed that Chrome had a monopoly. I provided an argument that it wasn't (it is really easy not to use Chrome. You give up literally nothing switching to Brave for example).
(3) He claimed that Googe used monopoly tactics to build Chrome's market share. I provided a counterexample that the tactics used aren't monopoly tactics because other companies do more or less the same thing. Advertising your own products on your own site isn't monopoly behaviour. And even if Google was a monopoly and that is monopoly behavior - both of which I don't think are true - that isn't exactly an abuse of monopoly power, it is pretty tame.
It'd be helpful for me if you pointed out why you don't think that is addressing the comment. It seemed pretty direct to me.
* Microsoft controlled the Windows API and appeared to be sabotaging attempts to build cross-platform applications. And they seemed to think it was substantial interference. Take this for example:
"Microsoft's videotape showed the process as being quick and easy, resulting in the Netscape icon appearing on the user's desktop. The government produced its own videotape of the same process, revealing that Microsoft's videotape had conveniently removed a long and complex part of the procedure and that the Netscape icon was not placed on the desktop, requiring a user to search for it. Brad Chase, a Microsoft vice president, verified the government's tape and conceded that Microsoft's own tape was falsified." [0]
If MS had restricted itself to a banner on their website saying "Download and Install IE!" they'd have been fine; the issue was that they were creating an environment to destroy Netscape for no good technical reason, they just wanted to destroy Netscape. And that was part of a pattern of behaviour where they were employing consistent tactics against anyone trying to create cross-platform software.
[0] https://en.wikipedia.org/wiki/United_States_v._Microsoft_Cor....
Isn’t Google doing the same by making their search engine default on Chrome, Android and even by paying Apple billions to make the default on Safari?
Now I’m not sure that something you could actually define as a monopoly but they do control almost the entire search market on mobile because they directly control Android and pay Apple huge amounts of money to achieve the same on Safari.
ChromeOS comes with a bundled browser, the big no-no that cost Microsoft.
I'm happy to be proven wrong if the year of the Linux desktop has finally come!
No, I think that's next year. ;)
You and I can’t. Our lawyers can. There shouldn’t be that many people at your firm who can make anticompetitive decisions. Ensure they meet 1:1 with corporate counsel to be advised on what the law is, and how the law responds to certain language. That’s not only kosher, it’s protected by privilege.
It sounds like a lot of senior people at Google don’t understand how privilege works.
I ask a lawyer about the legality of specific acts I am considering. This is privileged conversation.
I send an email to someone else telling them to do something (which may be in violation of one or more laws). I copy legal counsel on the email and "request their input on their subject at hand". This is not privileged communication.
If you're saying that random engineers aren't actually entitled to meet with legal counsel and have a privileged conversation where they privately ask for directed legal advice, that would be surprising news to me.
Sure. But that isn’t what’s going on here. Every regulated industry has blackballed terms. Communicating that to ensure employees don’t accidentally trip up, as well as informing them of the laws they are meant to follow, is totally legitimate.
It's not like this is something that loads of companies have faced—this isn't the kind of situation where you can say "but the DoJ brings companies up on trial for this all the time, whether they've clearly got a dominant market position or not!"
The rules are byzantine and complex, but the principle is simple: Compete fairly, rather than trying to eliminate your competition. If you do end up with a dominant market position, by whatever means, don't try to abuse it to keep others out of the market or small within the market.
"But Wall Street" "But muh infinite growth" "But repeatedly-debunked-fiction about fiduciary duty to stockholders" No. You don't have to be a greedy, selfish, narcissistic asshole just to get by.
And the VOC was hard-core manipulative and monopolistic.
If you want to claim that companies were invented to serve the rapacious profiteer, then all good--that's mostly true. But as a factual matter, they are not the invention of capitalism and long predate it.
No. The earliest companies in various cultures go back more than a thousand years and they have emerged for a variety of reasons -- pooled risks and resources, family businesses needing to hire non-relatives, tradesmen needing to hand their businesses on to their apprentices, etc.
Capitalism is actually pretty new. It's not much older as a practice than its definition.
Kongo Gumi alone existed for more than a thousand years before capitalism became a meaningful economic model.
The livery companies in the UK date back 600 years before the UK was a capitalist system.
And we could still have various forms of companies in a non-capitalist system, which in turn does not automatically mean communism.
Legitimately a hilarious notion to be honest.
Google learned a lot from prior big antitrust cases, clearly.
If the judicial system finds that there was monopolistic behavior, then they should deal with it. People apologizing that "oh poor companies have a hard time with words" are wild to me.
if hate speech is protected (it is) then hyperbole is protected (it is).
you weren't allowed to say those things because you needed to change your corporate culture. changing how you speak at work is very effective at that.
Google somehow believe that if they also dodge the phrases of the past that they will escape the scrutiny of the past, implying that they think government regulators are stupid and won't be able to see what is really happening.
Google have been very, very foolish in thinking in that way.
The point is to not do anti-competitive things. Doing them and not talking about them isn't better than doing them and talking about them. Clearly it's worse because you know you're doing something wrong and trying to get away with it.
I mean, that sure looks like evidence to me, and not in an unfair way.
Calling it unfair is like “how can you possibly expect me to not get in trouble if I can’t conspire to avoid getting caught breaking the law!”
Your characteristic made it sound like the government's end goal is for the company to simply not say those things, in which case it would be silly for them to also not allow you to tell employees to not say them. But of course the government's end goal is for the company to not do those things, and separately, they don't want the company to instruct its employees to refrain from discussing those things because that indeed looks a lot like trying to hide evidence.
That is just regular corporate espionage. The reverse is possible as well.
What next? Governments are not allowed to police corpY because rival corpZ will violate the laws that corpY follows; thereby stealing marketshare?
It's like saying that it's odd or unfair for someone to have "how to hide a dead body" in their search history as evidence against them while they're on trial for murder. But your honor, if I'm being penalized for researching how to hide the body, it's unfair because it makes it more likely that my murder will be discovered! Think of the chilling effect this will have on murderers, and the devastating economic repurcussions on manufacturers of bone saws and rubber hose!
Why? It's not a crime in and of itself. You're also free to make sure all your banking transactions are <$10k, but that doesn't make you immune to being investigated for money laundering.
You can, but only in an regularly scheduled unrecorded meeting that is described euphemistically as “compliance training”.
Unfortunately that article is under lock and key login so forgive me if the comment is off point.
I’m simply saying the smoking gun of managers managing the risk needs to be seriously considered as a possible smoking gun and not simply dismissed because of its potential as a false indicator.
There were official docs saying not to say the word monopoly, or something to that effect (It's been a few years). It felt dirty, glad to see that I was right and no, there isn't some magic legal loophole of using special phraseology to imply things that are illegal.
These sorts of market controlling companies are weird to work for. On the one hand they have a certain excellence that keeps their market lock year over year. On the other there’s a strangulating incestuous monoculture that self perpetuates a view of brilliance. You see this internally at other companies with these locks - google for one, googlers, especially hey day googlers, walk out with an ego the size of their market share. I’ve scrupulously avoided working there despite many chances over the years because of the smugness - not that I couldn’t work with that environment, I’m afraid I would adopt it as well.
ResMed simply has better technology than others, and is a de-facto monopoly.
Prescription glasses are basically just chunks of not-too-special plastic that you can buy online for $20 or less, but people refuse to believe that the whole industry is a scam when I try to tell them about it
Btw Zeiss (known to HNers for making EUV lithography hardware) also makes glasses and you can buy them online. Some of their lenses are $700. Not worth it for me, but I can definitely see how someone would be willing to pay even more for those optical specs
One is SV AS +2.5 sphere 0 cyl duravision platinum uv 1.60 index (guess this is what you’re talking about) uvprotect
The other is the same but 1.25 sphere
Hope it helps
Don't scratch them. It's simple as that. Wash lens with soap. It's as simple as that.
You can choose the material you put into them. Ray-Ban Scamglasses from the Scam Shop are definitely NOT better. Even Costco glasses aren't better.
Anything insurance touches becomes expensive, because insured individuals are no longer price sensitive, so there is no incentive to lower costs by providers.
My employer pays for my vision insurance, whether I want it or not, so I may as well maximize the benefit with the "best" hardware I can get for "free."
And buy the glasses at Zenni et al.
Likewise, store bought lenses are available with $20 out of pocket expenses.
What is wrong with this? Apple does it, lots of managed healthcare organizations like Kaiser Permanente and UnitedHealth and CVS do it, auto manufacturers do it, etc.
The other companies you mention are actual insurance: They cover rare, and unexpected events. As opposed to covering once every two year glasses, on a schedule.
In truth the insurance is just a scam because glasses cost 1/10th what they say.
Now that would be OK if there was actual competition, but there isn't, they are basically a monopoly - as soon as a competitor arises they buy them.
Online glasses are not the same market as a physical store where you can try them on.
https://www.walmart.com/browse/health-medicine/prescription-...
I see lots of $30 and $60 options.
The insurance is only a thing because the tax code allows it as a way for employers to pay people with untaxable money in the form of insurance, so it is not a real insurance market.
Further it’s got some serious conflict of interest going on with how the benefits are structured. So a plan may cover 1 300$ par of glasses, but not 2 pairs of 150$ glasses specifically to minimize the risk of a race to the bottom etc.
But because of how they do it they hide that. $40/month for 2 years = $960 "for insurance" which gives you the right to buy glasses worth around $20 or so.
All the number are inflated leaving people with the impression that glasses cost $400 - they don't.
We have the internet now, with plenty of other vendors willing to sell eyeglass frames and lenses for cheaper.
High profit margins are also bad when it's something people need.
The competition isn't working right, for a variety of reasons, and so the mere existence of competition does not make those problems disappear.
Pretty sure you can go to most Walmarts and find much cheaper corrective eyewear than Luxxotica too.
https://www.walmart.com/browse/health-medicine/prescription-...
So here's the thing with WalMart and Luxottica - their insurance does not fully cover WalMart! They give you a significantly reduced amount with WalMart (or Costco), that's how you know it's fraudulent - they only want to cover their own stores, that's not a normal behavior for "insurance".
https://www.cleverdude.com/content/costco-optical-vs-walmart...
https://clark.com/health-health-care/costco-optical-eyeglass...
Would it be unreasonable to say a lot of potential excellence isn't actualized because:
>Whenever a new upstart brand came along they simply acquired them.
and they don't ever actually compete with a near peer?
Oh man, I worked for a long time on the east coast in industries that didn't give me much exposure to startups during the 90s-00s, so one day I met an ex-Google developer at a meetup who dropped into the conversation that he once worked for Google and then waited for me to be impressed. It was a long awkward wait because I didn't realize at the time that that was supposed to impress me, and instead just said something like "oh cool" and the conversation just abruptly stopped in the weirdest way you can imagine.
Now, the question to ask is if Google wasn’t paying off other companies to make them the default would they have been more incentivized to make a better search experience?
At this point I don’t get any better results from Google than DuckDuckGo/Bing. A few years ago Google was better, now they are increasingly useless and no better than competitors.
If iOS users got a prompt to choose a search engine the first time they open Safari, and the order of choices was random, how many would even notice the results were different in any way?
If everybody was able to easily see Google’s results vs competitors it’s likely they would try harder and wouldn’t have just spent all their effort on cramming more ads above the results.
If you were to address the online advertising market, we would have a lot more to agree on. But you didn’t, and the article seems a bit confused about the ongoing cases (search filed in 2021 vs ads filed recently) and IMO is mostly written to rile the proles.
or whatever procedurally generated idea you think I’m hiding
just cocaine shipments.
This wasn't a smoking gun, but it could help prove you were on the right track. Also, if you depose someone and ask them about a specific phone conversation they had, they're probably less likely to lie than if you just generally ask them if they ever talked about XYZ.
It's another thing to tell your employees not to use a bunch of words while doing their job which implicate the firm in breaking laws they've been accused of breaking. It's almost like an admission of guilt or attempt to obfuscate.
From a bank/fund perspective - we get tons and tons of training about how we should not insider trade, money launder, etc. They have people who have gone to jail come give talks about how it's not worth it, it was the biggest mistake of their lives, etc. Never ever, across half a dozen firms and 20 years, have I had training that was like "so hey don't use these terms that are used by insider traders because that would give the wrong impression when you are um.. doing your job and stuff..".
It's stupid and hubristic. Just like the other stuff that came out of GOOG execs sending emails telling people not to put stuff in emails, lol. Cmon guys.
The counter argument that I'm sure Google will bring to the table is that (a) that advice was given in the context of helping engineers understand that legal definitions and vernacular definitions are different, and it is the nature of adversarial court systems that words they think they're using with one meeting can be taken out of context by an opponent in a court case, so think about what they are saying, and (b) all of the above is just facts and the government suppressing a corporation's right to state facts would be a clear and obvious violation of the First Amendment.
But these are two legal arguments and it's hard to predict how the court will decide.
“Rather than use words like ‘insider trading’ we should say ‘based on market research’”
Well, I have.
At a large well known tech company I used to work for, we were told not to use terms like "killing our competitors", "smoking them", etc. or any words that implied we had any dominance or monopoly in our industry. We even had a "War Room" undergo a name change. The reason is exactly the same as Google's, where they were worried about reporters using it to twist narratives or in discovery by lawyers who came across emails.
I think my concern is that the important thing is not to do illegal things. If training focuses on just not sounding like you do illegal things instead of just not doing illegal things, that’s the problem.
And that's the point. Lawyers can twist things written in emails to be whatever they want. People who say "if you're not doing anything illegal, then you have nothing to hide" has never been at the hands of a witch hunt. I have a friend who lived in the US on F1 and H1B for over 10 years and was banned from entering the US over jokes with her ex-bf about marrying for a green card.
Don’t worry, soon it’ll get done by AI instead and it’ll match on “acceptable” language too.
That's insane, especially after her being in the US for 10+ years and having established a life there. Sorry to go off-topic, but I have a friend whose SO is on a work visa and they have joked about the marrying for a green card thing before (a very common joke it seems). How did the government find out about the joke? (in-person, through texts, etc.) I ask because I wouldn't want the same to happen to them and to caution them.
What? That's also fine.
No, that isn't the problem.
The problem is that the difference between violating the law and not violating the law is whether you used what the court/jury felt to be inappropriate language. "Not sounding like you do illegal things" is how you avoid violating the law. Your actions are less relevant than your commentary on those actions directed to your friends.
That's why the training focuses on using the right magic words and tabooing the wrong ones. The training is there to help you follow the law, no matter how stupid the law might be.
only if the regulators investigating you are complete morons, which may be the case once in a while, but I doubt it is for any large case like this one.
regulators see straight through doublespeak and careful wording. buzzwords and corporate lingo are completely transparent to anyone who spends a single moment thinking about the message that the words are conveying, and regulators have far more experience cutting through that stuff than just about anyone else.
> Moron
Not so much because they might making some incorrect conclusions but because they don’t know when to keep their mouths shut.
When one actually suspects that something is anticompetitive, subverts the privacy policy, or is against the law, the done thing is to go talk to an attorney. Either product counsel inside the company if you are just curious or concerned in good faith, or your own attorney if you think the company is acting in bad faith.
No they don't, Microsoft didn't do this training and got nailed for bundling internet explorer with windows. Then Microsoft and all other big tech companies started to police words and look, no big anti trust like that has happened in US since. As long as Microsoft says "we always open edge no matter the settings when you click links in our products to ensure the best customer experience", instead of "we always open edge to increase edge market share", they wont get nailed in USA.
you are saying that regulators can't see through this then giving an example of them seeing through it.
They spend a lot of time parsing just what Gates and others on his executive team meant by things like “cut off [Netscape’s] air supply”.
Regardless of who you think “wins” these exchanges, the government thought that putting Gates in a position where he had to explain this kind of language would be embarrassing and discrediting.
It worked.
Describing something in terms of helping the competition while actually doing the opposite, will get you dunked on doubly so. If you think equivocation is they to doing illegal things, my dear poster, snap out of it and feel the Terra firma, because you're so high, the FAA can do an airspeed check.
Actually anti-trust training I have gone through mostly emphasizes that you should never ever help the competition or talk to them, because that sounds like forming an illegal oligopoly.
He's saying banks/funds don't do this. The words were "From a bank/fund perspective".
You're saying large tech companies (not just Google) do.
Hence the impression is, big tech is not being careful to follow rules, they are just trying to avoid getting caught.
I got the same takeaway when I was at Google as when I was in the hedge fund space: be careful what you say, regulators and judges might not be very charitable. In both cases, the concept of something you say being in the New York Times was present for me.
The Googlewide training and messaging when I was there did focus on not using anti-trust-triggering _language_ over the specific acts, but I don't think it's fair to interpret this as "Violate anti-trust regulations" but rather a recognition that the common fuck-up some random employee can make isn't to commit a material anti-trust violation, but to provide nasty evidence by writing a puffy email about "crushing the competition". Telling people to write emails about "making users happy" rather than "owning the market" is not telling people to behave badly.
I don't know what you're doing in finance, but it's my understanding that folks who are actually involved in stuff where their job could look like insider trading probably do get subtler lines drawn than I ever sought (I was in systematic/program trading.) Places where doing my job well could be confused for something bad, e.g., tax optimization, we did discuss how to properly communicate in order to avoid misunderstanding if a regulator, court, or journalist ever read our communication.
For example - all emails to above go through compliance first & include a disclaimer that you are a market participant and do not wish to receive MNPI. Meetings with above have compliance sit in, etc. People are urged to self report if someone does volunteer something stupid to you that they shouldn't have, and then you sit out from trading it for some period, etc.
They make it very clear that the upside/downside risk is asymmetric. Hey maybe you can cheat and make 10% more this year. Or you can go to prison for 10 years, lose your home, have your wife leave you, and never work in the industry again.
you can go to prison for 10 years
Raj Rajaratnam is one of the most notorious in the current generation. He only did 7.5 years. And Stephen Cohen had so many layers in his onion legal strategy that SEC could never nail him down.
It’s like an investment banker back in 2006 saying that he was doing everything by the book, which he might of well have done, but the whole thing was crooked nevertheless.
that's fair - did they also provide training on actually not violating anti-trust regulations, or was it just how to avoid leaving evidence of violations?
The additional rank-and-file training and process that ties into actual anti-trust-related behavior is how to contact a lawyer as well as the fact that a lawyer and executive needs to review and approve all of the most minor of launches.
Do you have an idea of what the relevant training you would prescribe for a random mid-career engineer or UX researcher or whatever would be?
If they can develop training that says "don't say bundle", they can develop training that says "don't bundle", and in both cases they might want their employees to talk to a company lawyer if they have any questions anyways
also curious if the lawyers themselves had rules like "don't bundle" that they would pass along to employees with questions, or if google was okay with bundling
You may not believe it, but no financial firm I've ever worked for gave me training on "don't use insider training language". All the training was emphatically that they did not want us to do it, it would destroy the company and destroy our lives explicitly. It was drilled into our heads with live talks, videos, handbooks, attestations, etc.
This GOOG training seems to be like "how to pass a sobriety test" rather than "don't drunk drive".
There's a ton of stuff that has been allowed to happen via consolidation, merger, or pure homegrown that simply hasn't been prosecuted because recent administrations had an alternate theory that monopolies are OK if it benefits consumers via lower prices. Tech gives out a lot of stuff free or where its cost is hard to directly measure.
Tech also enjoyed bipartisan support for the last 20 years or so, but that has completely flipped over the last 4 years or so. We will likely see a lot of this stuff is no longer ignored.
That's really not incompatible with violations in other circumstances. For example, Google releases Android for free, resulting in low prices for mobile operating systems. Competing operating systems may be put out of business, but customers benefit from lower prices and this should be fine if anyone can still choose to use a competing OS -- or fork of Android -- should they prefer it.
Whereas, Google uses tying to its dominant services to ensure that Google Play is the only viable app store on Android, then takes a 30% cut. High margins don't result in lower prices and neither does excluding competitors who might take a smaller cut, so they should be slapped down for this.
Google adds remote attestation and encourages third parties to rely on it even though it makes third party apps dependent on Google's version of the system, creating a barrier to entry for forks or competitors. This kind of thing should be prohibited, because otherwise people are not choosing Google's offering because it provides the best value for money, they're choosing it because Google manufactured a way to shut out competitors who might do better.
The theory isn't the problem. Taking a competitor's market share because customers choose your product for having a better price is not bad. The bad is making it harder for customers to choose competing alternatives they might actually prefer.
The problem is the application. The company comes up with some claim that their anti-competitive moat is there to benefit customers by providing security etc. and get away with it even though it doesn't really provide security or there are viable alternatives that provide security without restricting competition.
A good start would be don't do things that create friction for a customer who wants to choose a competitor's product instead of yours.
the article says employees were instructed to avoid the word "bundling", were they instructed to avoid the action as well?
With that said...
> You may not believe it, but no financial firm I've ever worked for gave me training on "don't use insider training language"
These are apples and oranges. You may not believe it either, but I don't think Google tells anyone "don't use insider trading language" either. That's the apples-to-apples comparison.
AFAIK being a monopoly is a corporate civil matter, not a (strictly personal?) criminal one like insider trading. Expecting people to treat them the same way and claiming they're guilty if they don't makes no sense.
Second, Google wants to withhold from the public certain provisions of its standard agreements, including definitions contained in such agreements, many of which were signed more than ten years ago. Id. at 56, 65-69. These agreements and definitions are foundational to the publics understanding of how Google established its dominant market position.
Third, Google wants to clear the courtroom during the overwhelming majority of Googles examination of Apple witnesses, which could span several days. Id. at 69-70. There is substantial public interest in Googles deal with Apple and the termination of the agreement. There does not appear to be any good reason to close the trial completely for this testimony other than to shield Google and Apple from potential embarrassment."
https://ia902501.us.archive.org/21/items/gov.uscourts.dcd.22...
But until we have that, people will keep studying what they can and can't say.
Not to be paranoid, but that's also how a bank that wanted people to insider trade would act. The idea is, you see the people who got caught, learn what they get caught for, and carve the apple just a little bit less than they did.
A principled (naive) person imbibes the meaning "Don't do bad stuff", and an ambitious (sociopathic) person learns how to do it and what gets caught.
“Politicians and regulators are always playing catch up. They are so dumb. We are creating the future” - some tech bro
They don’t take society seriously. They don’t take the law seriously. At best they aren’t thinking about what they are saying. At worst they feel they are justified.
Treat the law seriously. Don’t break the law. If you do those two things you will not need to send memos around to get people to use phrases which regulators will grep your comms and transcripts for.
From a consulted a bank perspective - I noticed that the examples were pretty darn intuitive that hey this is obviously illegal but for some reason they wanted to have people sit through a multiple choice form and 45 minute tutorial on banking ethics to make sure nobody did it, and also that one of the negative outcomes that was mentioned in breaking the code of ethics was that the bank would experience problems in the media that would make the whole thing which seemed like a good idea not worth it.
Imagine a scenario where a PM or engineer writes down in a memo something like "Option #1 is a breach of antitrust regulations" or "This violates EU privacy regulations". These are often well meaning statements but the reality is most (all?) of the time these people have no idea what they are talking about (which EU privacy regulation? what are the elements of the antitrust law and how does the action implicate each one? etc).
However, a statement like this is highly prejudicial to a court as it indicates fore-knowledge of wrongdoing especially if it is made by someone fairly senior in the organization (eg middle management and higher).
The better option is to pose the assertion as a question directed to your lawyer. This has the benefit of (a) attorney client privilege so the document cannot be discovered in court and, more importantly, (b) getting someone who has the relevant expertise to weigh in on whether what you think is in fact true so you can base your decision making on facts and not random persons opinion of the law.
NB: Imagine your legal team weighing in on whether you should design your architecture as a microservice or monolith. That is the equivalent level of hubris for a non-legal person weighing in on the legal implications of particular courses of action.
1. "Don't do these bad things."
2. "Don't talk about it when you do these bad things."
3. "For chrissake don't talk like you're doing these things when you're not even doing them."
1 and 3 are appropriate, 2 isn't. I agree that the lines are not always obvious.
The only time employees will even utter that type of language is when that language accurately conveys what you're doing. In which case, it's time to dial back. Not double down by kindly reminding them not to use terms because golly gee, thems monopolists words and we're not that golly gee, no sir.
You are describing robots, not human beings.
Actual people speak imprecisely all the time.
It is not difficult to avoid unless you set out to do it in the first place.
Policing words that imply criminality is not a way to not be guilty of abusing your market position.
How would that benefit most consumers?
https://news.bloomberglaw.com/securities-law/matt-levines-mo...
Summary is that not only can you not say things like "lock up" or "market share", you also can't tell employees not to say those things or you'll see headlines like the posted article and have the government claiming at trial that you're trying to hide evidence. This feels kind of odd and kind of unfair.