https://dailycaller.com/2020/10/08/cleland-discovering-googles-rule-of-scofflaw/
DAILY CALLER OPINION
Discovering Google’s Rule of Scofflaw
SCOTT CLELAND CONTRIBUTOR -- October 08, 20203:04 PM ET
Google has a discovery double standard.
Google treats the discovery of others’ information the way they don’t want discovery of their information treated, the opposite of the Golden Rule.
The evidence shows Google expects everyone else’s private or proprietary information to be publicly accessible and useful, except Google’s.
Google knows information is power.
Google and antitrust authorities also know asymmetric information advantages can create, maintain and extend market power.
This is a timely and relevant concern as the two biggest legal cases that Google has ever faced are coming to a head in public, at nearly the same time.
On October 7, the Supreme Court heard the final Oracle v. Google arguments.
Google supposedly illegally infringed Oracle’s copyrighted Java APIs to accelerate adoption of its mobile, data-hoovering, Android operating system and Chrome browser. This ill-gotten advantage has enabled Google to dominate these leading data discovery tools, and then deny scale to competitors in discovering data that is necessary to compete in targeted advertising.
Very soon, the DOJ is expected to file a Sherman and Clayton Act monopolization case against Google for allegedly, illegally acquiring, maintaining and extending its online-search-related market power, i.e., info-discovery access and monetization.
Expect the case to spotlight numerous exclusionary contractual terms Google has employed to effectively deny scale to competitors’ discovery/access for: search queries, advertising bids and asks, and key corpuses of information, data, and metadata.
Some scale and legal perspectives are helpful here.
Google’s “mission is to organize the world’s information and make it universally accessible and useful.” It is a uniquely monopolistic vision to control and leverage the world’s discovery of information.
Google also controls and can exclude competitors from discovery of multiple unmatched corpuses of global information: e.g., search index, maps, news, books, videos, apps, and facts.
Google commands 92% share of global search per StatCounter and 10 of the top 12 Android apps downloaded over 5 billion times per Wikipedia.
Google’s immense market power over everyone’s “discovery” of digital information via search is also de facto power to influence the administration of justice.
That is especially true when it comes to how law enforcement researches and learns relevant facts and information that influence lines of questioning in official legal discovery concerning official investigations or court cases involving Google or its interests; and given Google’s well-documented scofflaw history.
Consider evidence of Google’s discovery double standard.
In 2010, in the Viacom v. Google-YouTube copyright infringement case, Google requested the judge to seal all the discovered documents in the case, which the court denied.
Given the now public Undisputed Statement of Facts in the case, it is clear that Google’s leadership knew that buying YouTube would involve violating copyright law.
At least three Google executives opposed buying YouTube for illegality reasons.
Google co-founder Sergey Brin said in an email: “… is changing policy [to] profit from illegal downloads how we want to conduct business? Is this Googley?” (SUF 162)
Google manager David Eun told then CEO Eric Schmidt in an email: “I think we should beat YouTube… but not at all costs. They are a video Grokster.” (SUF 158,159)
Another Google video manager said in an email: “It crosses the threshold of Don’t Be Evil to facilitate distribution of other people’s intellectual property.” (SUF 164)
Google’s discovery double standard was first discovered and spotlighted by a 2012 report, Uncivil Secrecy, by the Reporters Committee for Freedom of the Press.
It reported: “…far from making its own legal documents “universally accessible,” Google routinely uses overly broad requests to seal court filings, according to critics, in apparent contravention of its commitment to the public interest in the free flow of information.”
In 2012, Google thwarted normal legal discovery in the Texas State Attorney General’s antitrust investigation into Google by refusing to comply with a subpoena by claiming most all Google’s emails were subject to attorney-client privilege, even when no lawyer was included in the emails.
The most egregious example of Google’s discovery double standard was its 2014 lawsuit claiming Section 230 immunity from having to comply with a broad Mississippi State Attorney General subpoena backed by 41 State Attorneys General for a state law enforcement investigation of Google’s alleged facilitation of “dangerous and illegal activities through its online platforms.”
A 2015 Federal Court preliminary injunction blocked that subpoena on the grounds that discovery would cause Google irreparable injury.
A year later the Fifth Circuit Court of Appeals dismissed the preliminary injunction, ruling Google faced no “irreparable injury,” because “the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.”
Google’s disruption of the States’ discovery process effectively secured Google de facto sweeping, practical immunity from all U.S. State law enforcement investigation and prosecution, for sixteen months.
This past August, The Markup reported, that Google instructed “employees across the company that certain language is off limits in all written communications,” because everyone must assume that whatever is written could be subject to legal discovery in antitrust investigations.
Employees were coached what they could say and not say, and warned to not use certain words like “market share,” “barriers to entry,” and “network effects.”
This evidence indicates Google has a purposeful, institutional, and hypocritical, discovery double standard where Google treats the discovery of others’ information the way they don’t want discovery of their information treated, which is the opposite of the Golden Rule, and the legal discovery process.
Scott Cleland is President of Precursor®, a responsible Internet consultancy. He served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration; and Institutional Investor twice ranked him the #1 independent analyst in communications when he was an investment analyst. He is author of Search & Destroy: Why You Can’t Trust Google Inc.
