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Google’s Extensive Cover-up

How come the company whose success depends entirely on the public being open, transparent and trusting towards Google, is so closed, secretive and distrusting toward the public?

How come the company with a mission to make the world’s information universally accessible, goes to such extraordinary lengths to cover up evidence in legal documents in public proceedings?

European media could learn an important lesson from their American media brethren about confronting Google’s extensive cover up of the evidence of their wrongdoing in legal proceedings.

In Europe, there was surprisingly little media pushback initially when Google and EC Vice President Joaquin Almunia first proclaimed a secret settlement of charges of Google’s abuse of its search dominance.

Strangely, the settlement would “…close all open investigations on the four competition concerns…” while keeping the details secret from the public and excluding the public from a required market test per EC rules.

After public criticism, Google posted the settlement document, but Google still remains opposed to allowing a public market test because that could produce evidence proving the settlement does not restore competition as it claims. If Google’s third proposed settlement is so much better than the first two, which failed the public market test, why the need to hide it from the public? 

Meanwhile back in the U.S., 26 media companies have filed an amicus brief in Federal Court to prevent Google from sealing all evidence from the public in a seminal privacy case over whether Gmail’s interception of communications violates wiretap laws.

Presiding Federal District Judge Lucy Koh has already ruled that Google is not exempt from wiretap law because creating personal advertising profiles by reading people’s emails was not an “ordinary course of business.”  Judge Koh also found that “accepting Google’s theory of implied consent… would eviscerate the [wiretap] rule against interception.”

The U.S. media companies rightfully are urging that public civil trials should be litigated in public and not “in secrecy.”

Tellingly Google strongly disagreed in its reply, effectively arguing that Google’s privacy interests about how it invades the privacy of its users should trump the presumption that public trials be public.  

Judge Koh will decide soon whether to deny or allow Google’s motion to seal all documents from the public. Judge Koh’s decisions to date strongly suggest she will rule against Google and for media companies petitioning for the court documents to be public.   

The coincident timing of these two seminal transatlantic cases involving Google puts a spotlight on Google’s extensive cover up strategy to keep incriminating evidence presented in public proceedings secret that normally would be in the public domain.

These cases are not outliers. They are just the latest examples of a well-established Google pattern of behavior -- covering up evidence in legal documents that normally are public.  

In 2011, Kristen Rasmussen of Reporters Committee for Freedom of the Press, wrote “Uncivil Secrecy,” a detailed report about how “Google routinely uses overly broad requests to seal court filings.” She explained: “Google use of sealing requests to suppress information in court documents is remarkable – both in the frequency with which the company makes such requests and the material underlying them.”

In 2012, Google refused to comply with a subpoena from the Texas Attorney General for documents concerning the very same antitrust matters at issue in the EC-Google proposed settlement.

Google claimed that 14,500 documents were subject to attorney-client privilege, despite the fact that many of the documents never were sent to an actual attorney or were not accompanied with a request for legal review. Apparently Google thinks the best way to keep evidence from the public, is to never provide it to investigative authorities who have a legal right to see it in the first place.    

Also in 2012 in the matter of Google Street View collecting home WiFi signals without authorization, Google was fined by the Federal Communications Commission (FCC) for “willfully and repeatedly violating an Enforcement Bureau directive” to cooperate with the FCC’s collection of evidence.

Remarkably, Google also would not let the FCC interview the central figure in the investigation, “engineer Doe.” Several EU countries’ privacy authorities can attest to Google’s lack of cooperation with their parallel investigations of Google Street View’s unauthorized WiFi collections.   

Overall, Google has mastered very corrupting cover up tactics, i.e. sealing public evidence in court cases from the public, and settling investigations in a fashion that prevents evidence that should be public from being known by the public.

Google’s corrupting legal tactics also enable Google to publicly claim it has engaged in no wrongdoing when the evidence it has gotten sealed, or settled-away, strongly indicates otherwise.

In sum, it should set off alarm bells among the European Commissioners that Google has taken a general legal stance that is so opposite to its publicly-represented business philosophy and brand.

There must be a lot of very bad potential evidence in another market test that Google does not want the European Commissioners to know, for Google to so blatantly violate the openness and transparency values that they claim to support.  

To ensure the integrity of the EC’s law enforcement process, European Commissioners should not allow Google to cover up of potential evidence of how the third settlement proposal would actually work in the marketplace.


Google Unaccountability Series

Part 0: Google's Poor & Defiant Settlement Record [5-1-12]

Part 1: Why Google Thinks It Is Above the Law [4-17-12]

Part 2: Top Ten Untrue Google Stories [5-8-12]

Part 3: Google's Growing Record of Obstruction of Justice [6-21-12]

Part 4: Why FTC's $22.5m Privacy Fine is Faux Accountability [7-12-12]

Part 5: Google's Culture of Unaccountability: In Their Own Words [8-1-12]

Part 6: Google Mocks the FTC's Ineffectual Privacy & Antitrust Enforcement [8-10-12]

Part 7: An FTC Googleopoly Get Out of Jail Free Card? [8-30-12]

Part 8: Top Lessons to Learn for Google Antitrust Enforcers [9-14-12]

Part 9: Google Mocks EU and FTC in Courting Yahoo Again [9-26-12]

Part 10: FTC-Google Antitrust: The Obvious Case of Consumer Harm [11-25-12]

Part 11: Why FTC Can't Responsibly End Google Search Bias Antitrust Investigation [11-27-12]

Part 12: Oversight Questions for FTC's Handling of Google Antitrust Probe [11-30-12]

Part 13: Courts Not FTC Should Decide on Google Practices (The Hill Op-ed) [12-10-12]

Part 14: Troubling Irregularities Mount in FTC Handling of Google Investigation [12-17-12]

Part 15: Top Ten Unanswered Questions on FTC-Google Outcome [1-3-13]

Part 16: Top Takeaways from FTC's Google Antitrust Decisions [1-7-13]

Part 17: Google's Global Antitrust Rap Sheet [1-31-13]

Part 18: Google's Privacy Words vs. its Anti-privacy Deeds [3-8-13]

Part 19: Google's Privacy Rap Sheet Updated - Fact-checking Google's Privacy Claims [3-13-13]

Part 20: DOJ & FTC Report Cards [4-12-13]

Part 21: The Evidence Google Bamboozled EU Competition Authorities [4-19-13]

Part 22: EU-Google: Too Powerful to Prosecute? Problems with Enabling Google [5-1-13]

Part 23: Google's proposed EU Search Bias Remedies: a Satire [5-17-13]

Part 24: Google's Antitrust Rap Sheet Updated [5-27-13]

Part 25: Is This the Track Record of a Trustworthy Company? See Google's Rap Sheet [6-6-13]

Part 26: Top Questions as DOJ-Google Criminal Prosecution Deadline Approaches [7-12-13]

Part 27: The Evidence Google Violated the DOJ Non-Prosecution Agreement [8-8-13]

Part 28: Implications of EU Ruling Google Abused its Search Dominance [9-27-13]

Part 29: Google-YouAd is a Deceptive and Unfair Business Practice [10-24-13]

Part 30: EU's Google Antitrust Problems Not Going Away [12-16-13]

Part 31:  How the Google-EC Competition Deal Harms Europe [2-10-14]

Part 32: Open Letter to European Commissioners to Reject EC-Google Settlement [2-16-14]