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Google’s Open Defiance?

Why is the world’s leading crusader for openness and transparency so closed and non-transparent?

Why does Google fiercely defend the public’s right to know virtually everything about everyone else, but does not believe the public has any right to know similar things about Google?

Why is Google passionate about discovery of the world’s information, but so fierce in fighting legitimate discovery of Google information?

For eight months, Mississippi’s Attorney General, Jim Hood, now backed by 40 other State Attorney Generals in court, has been trying to get Google to comply with a broad subpoena, i.e. legal discovery, of Google internal documents to ascertain if Google is engaged in willful blindness to the aiding and abetting of a wide variety of criminal and illegal civil activities in violation of state laws via Google search and advertising -- given the substantial public evidence that it is; and given that there is a substantial public interest in determining if Google is, or is not, serially breaking the law.     

Tellingly, Google is engaged in an exceptionally aggressive campaign to delay and close state Attorney Generals jurisdiction and oversight into Google’s business in their states generally, and to deny state law enforcement legal discovery specifically.

Emblematic of this obstruction and Google’s surprisingly opaque nature is a Google lawsuit against Mississippi’s Attorney General, Jim Hood that effectively claims Google enjoys sweeping Federal immunity from state laws under Section 230 and that it is state law enforcement that is a bad actor for even investigating Google in the first place.

In a nutshell, Google’s exceptionally well-practiced lawyers effectively have turned the state law enforcement process of discovery and accountability on its head by playing offense most aggressively, in petitioning courts to allow it first to subpoena for legal discovery of state investigative processes, before any state investigation can proceed, in a gambit to thwart MS AG Hood’s subpoena and state authorized legal discovery.

Simply, forty State Attorney Generals understand well that Google is trying to kneecap State law enforcement’s ability to investigate Google, and hold it accountable to state law, going forward.

It is instructive to take a minute and step back from Google’s intentionally distracting legal tactics here, to consider how very different Google’s behavior is, from what it says it stands for.  

Consider the evidence.

Google’s corporate motto is “Don’t be evil.” Google’s unique discovery-of-everything “mission is to organize the world’s information and make it universally accessible and useful.” (Google’s bots uniquely crawl (discover) ~60 trillion unique URLs and Google’s Index size (data collection) is >100 million gigabytes.)

Google in its seminal post on openness, “The Meaning of Open,” explained Google was for Open Systems: Open Source software, Open Standards, Open Technology and Open Information. Since then, Google has championed an Open Internet, Open Government, Open Data, Open Spectrum, Open Handsets, etc.

When Julian Assange launched WikiLeaks to publicly expose large amounts of sensitive classified USG documents, Google Chairman Eric Schmidt told Reuters: "Has Google looked at the appropriateness of indexing WikiLeaks? The answer is yes, and we decided to continue because it's legal."

In contrast, consider some telling evidence of Google acting the opposite when it involves Google’s information. 

A very telling investigative report about Google, “Uncivil Secrecy,” by the non-profit Reporters Committee for Freedom of the Press, documented Google’s well-established practice of getting courts to seal Google court documents so that the public could not see them in the public record.

Per Uncivil Secrecy: “Google’s self-stated mission “to organize the world’s information and make it universally accessible and useful” may apply with less force when it is the company’s own information that has been publicized, particularly in legal documents. To be sure, the search engine giant is vigorous in its attempts to acquire, index and make easily available unprecedented amounts of information about others through services like Google News, Google Books and Google Street View. But 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.”

This isn’t the first time Google has opposed a lawful state subpoena for information from a State Attorney General. In 2012, Google thwarted the Texas State AG antitrust investigation into Google by refusing to comply by claiming most all Google’s emails were subject to attorney-client privilege, even when no lawyer was included in the emails.

Listen to how Google’s head of search Udi Manber described Google opacity in its core business: For something that is used so often by so many people, surprisingly little is known about ranking at Google. This is entirely our fault, and it is by design. We are, to be honest, quite secretive about what we do.”

Per CNET, Google blackballed all CNET reporters from access to Google employees for a year in response to a CNET article on privacy that showed Google was hypocritical in its most strict privacy expectations for Google executives’ private info relative to its lax approach to Google user privacy.

Finally, in Google’s most recent earnings, Google continued to not provide any revenue disclosure on YouTube, despite it being: the world’s largest video distribution platform; generator of more searches than #2 search engine Bing; and critically important market information for investors to accurately value Google.   

In sum, if Google believes openness, discovery and transparency are essential for society, why doesn’t Google lead by example?

Apparently, Google is in open defiance to not only State Attorney Generals, but also to its own philosophy of openness, discovery and transparency.


Cleland is President of Precursor LLC, a consultancy serving Fortune 500 clients, some of which are Google competitors. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc. Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.