June 22, 2015

DOJ vs. Google: How Google Fights on Behalf of Its Users

One of the oft-repeated Big Lies -- still bandied about by Google haters today -- is the false claim that Google enthusiastically turns over user data to government agencies. This fallacy perhaps reached its zenith a few years ago, when misleading PowerPoint slides from Edward Snowden's stolen NSA documents cache were touted by various commercial parties (with whom he had entrusted the data), in a misleading, out-of-context manner, designed for maximum clickbait potential. The slides were publicized by these parties with glaring headlines suggesting that Google permitted NSA to freely rummage around through Google data centers, grabbing goodies like a kid set loose in a candy store.

Google immediately and forcefully denied these claims, and for anyone familiar with the internal structure and dialogues inside Google, these allegations were ludicrous on their face. (Full disclosure: While I have consulted to Google in the relatively recent past, I am not currently doing so.)

Even an attempt to enable such access for NSA or any other outside party would have by necessity involved so many engineers and other Google employees as to make impossible any ability to keep such an effort secret. And once known, there would have been very public, mass resignations of Googlers -- for such an intrusion would strike directly at the heart of Google philosophy, and the mere suggestion of such a travesty would be utter anathema to Google engineers, policy directors, lawyers, and pretty much everyone else at the firm.

Obviously, Google must obey valid laws, but that doesn't mean they're a pushover -- exactly the opposite.

While some companies have long had a "nod and wink" relationship with law enforcement and other parts of government -- willingly turning over user data at mere requests without even attempting to require warrants or subpoenas, it's widely known that Google has long pushed back -- sometimes though multiple layers of courts and legal processes -- against data requests from government that are not accompanied by valid court orders or that Google views as being overly broad, intrusive, or otherwise inappropriate.

Over the last few days the public has gained an unusually detailed insight into how hard Google will fight to protect its users against government overreaching, even when this involves only a single user's data.

The case reaches back to the beginning of 2011, when the U.S. Department of Justice tried to force Google to turn over more than a year's worth of metadata for a user affiliated with WikiLeaks. While these demands did not include the content of emails, they did include records of this party's email correspondents, and IP addresses he had used to login to his Gmail account.

Notably, DOJ didn't even seek a search warrant. They wanted Google to turn over the data based on the lesser "reasonable grounds" standard rather than the "probable cause" standard of a search warrant itself. And most ominously, DOJ wanted a gag order to prevent Google from informing this party that any of this was going on, which would make it impossible for him to muster any kind of legal defense.

I'm no fan of WikiLeaks. While they've done some public good, they also behave as mass data dumpers, making public various gigantic troves of usually stolen data, without even taking basic steps to protect innocent persons who through no fault of their own are put at risk via these raw data dumps. WikiLeaks' irresponsible behavior in this regard cannot be justified.

But that lack of responsibility doesn't affect the analysis of the Gmail case under discussion here. That user deserved the same protection from DOJ overreaching as would any other user.

The battle between Google and DOJ waged for several months, generating a relatively enormous pile of associated filings from both sides. Ultimately, Google lost the case and their appeal.

This was still back in 2011. The gag order continued and outside knowledge of the case was buried by government orders until April of 2015 -- this year! -- when DOJ agreed to unseal some of the court records -- though haphazardly (and in some cases rather hilariously) redacted. These were finally turned over to the targeted Gmail user in mid-May -- triggering his public amazement at the depth and likely expense of Google fighting so voraciously on his behalf.

Why did DOJ play such hardball in this case, particularly involving the gag order? There's evidence in the (now public) documents that the government wanted to avoid negative publicity of the sort they assert occurred with an earlier case involving Twitter, and DOJ was willing to pull out all the stops to prevent Google from even notifying the user of the government's actions.

You don't need to take my word on any of this. If you have some time on your hands, the over 300 pages of related filings are now available for your direct inspection.

So the next time someone tries to make the false claim that Google doesn't fight for its users, you can print out that pile of pages and plop it down right in front of them. Or save the trees and just send them the URL.

Either way, the truth is in the reading.

Be seeing you.


Posted by Lauren at June 22, 2015 02:19 PM | Permalink
Twitter: @laurenweinstein
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