Google often acts as if it thinks it is above the law. That may be the most plausible explanation for why Google is under antitrust investigation on five continents, has had 35+ privacy scandals, and has been sued for eight different kinds of infringement/theft from most every content industry.
I. Cover-ups
This above-the-law question is timely because of the FCC's recent finding and $25k fine of Google for "deliberately impeding and delaying" its Google Street View wiretapping investigation. Since Google did not fully cooperate or provide the requested information to the FCC, and since the key Google engineer in the case invoked his Fifth Amendment right to not incriminate himself, the FCC could not fully determine if Google violated wiretapping laws. Ironically and shamelessly, Google's spokesperson responded: “We worked in good faith to answer the F.C.C.’s questions throughout the inquiry, and we’re pleased that they have concluded that we complied with the law.” (Interestingly, the DOJ obviously is well aware of Google's cover-up MO of misrepresenting government enforcement actions to the media, because the DOJ specifically prohibited Google from any public statements that would contradict the facts in the DOJ-Google Non-Prosecution-Agreement and $500m criminal forfeiture penalty, which document that Google knowingly advertised illegal, unsafe and counterfeit prescription drug imports into the U.S. for several years.)
Sadly this FCC cover-up is not the first time Google has obstructed a government investigation. According to South Korean media, South Korean antitrust authorities are considering the maximum penalty for Google's obstruction of its antitrust investigation when Google employees deleted files and ordered employees to not go to work but to work from home last year.
II. Summary of why Google thinks it is above the law
- Google's leaders show an exceptional antipathy to limits, boundaries, or authority.
- Evidence shows Google will buy a company it knows is flagrantly breaking the law.
- Evidence shows Google's leadership will ignore straightforward internal recommendations to obey the law.
- Law enforcement has concluded Google will go to elaborate lengths to circumvent the law.
- Google will knowingly break the law in order to gain negotiating leverage in business negotiations.
- Google claims behavior legal that its peers and others know to be illegal.
- Google's leadership will ignore repeated law enforcement warnings of criminal business practices.
III. Why Google thinks it is above the law
First, Google's leaders show an exceptional antipathy to limits, boundaries, or authority. "Google's leadership does not care terribly much about precdent or law" we learned from a top Google lawyer in Stephen Levy’s book In the Plex. "Happiness is healthy disregard for the impossible;" we learned from Google CEO Larry Page in his 2012 Update from the CEO. "Sergey and Larry almost always decided to take the risk. They were pretty fearless;" we learned from Doug Edwards, Google employee #59, in The Telegraph. "It’s obvious what our strategy should be. It’s to work on problems on a scale no one else can;" we learned from Google co-founder Sergey Brin, as recounted by Google Chairman Eric Schmidt in Wired.
"If we could wave a magic wand and not be subject to US law, that would be great;" we learned recently from Google co-founder Sergey Brin, in The Gaurdian. "We try not to have too many controls;" "People will do things they think are in the interests of the company;" we learned from Google Chairman Eric Schmidt in the FT. “At Google, we give the impression of not managing the company because we don’t really. It sort of has its own borg-like quality if you will. it sort of just moves forward;” we learned from Google Chairman Eric Schmidt in GigaOm.
"Larry and Sergey believe that if you try and get everybody on board it will prevent things from happening..." "If you just do it, others will come around to realize they were attached to old ways that were not as good;" we learned from Terry Winograd, Stanford professor and mentor to Google’s co-founders, per Ken Auletta’s book “Googled.”
Second, evidence shows Google will buy a company it knows is flagrantly breaking the law. The Undisputed Statement of Facts in the Viacom vs. Google-YouTube case make it clear Google's leadership knew that buying YouTube would involve breaking copyright law. At least three different 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 another email: "It crosses the threshold of Don't be Evil to facilitate distribution of other people's intellectual property." (SUF 164)
Federal Judge Stanton said, and the Second Circuit court of Appeals agreed, that: "a jury could find that the defendants [Google-YouTube] not only were generally aware of, but welcomed copyright-infringing material being placed on their website."
Third, evidence shows Google's leadership will ignore straightforward internal recommendations to obey the law. Oracle sued Google for billions of dollars for "knowingly, directly, and repeatedly infringed Oracles's Java-related property." Per Paid Content, there is an incriminating email from Google engineer Tim Lindholm to Andy Rubin, head of Google’s Android Division that a jury is entitled to see per the Judge in the case. The email said: “What we’ve actually been asked to do by Larry [Page] and Sergey [Brin] is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.” Simply Google's leadership, when presented with a recommendation to respect Oracle's property, implicitly decided to infringe it.
Fourth, law enforcement has concluded Google will go to elaborate lengths to circumvent the law. The DOJ concluded in the original 2009 Google Book Settlement, and in the revised 2010 Google Book Settlement as well, that Google proposed to break three bodies of law: antitrust, copyright and class action. Google's orchestrated a proposed settlement that would unconstitutionally bypass Congress in effectively rewriting copyright law to address all "orphan works" by presuming to speak fully for that class of property owners. The governments of Germany and France joined the U.S. Government in opposing the Google Book Settlement as a bald attempt to legislate sweeping international changes in orphan work copyright law and class action law via a class action settlement. Federal Judge Chin rejected the Google’s proposed settlement ruling that it: "would give Google a significant advantage over competitors, rewarding it for wholesale copying of copyrighted works without permission."
Fifth, Google will knowingly break the law in order to gain negotiating leverage in business negotiations. In the Viacom case there are emails in the Undisputed Statements of Fact that show that Google executives used ongoing copyright infringement at YouTube as business leverage to pressure content providers into signing more favorable copyright deals with Google than they could get in a legal market. Google Senior VP Rosenberg emailed CEO Schmidt and co-founders Page and Brin and advised "Pressure premium content providers to change their model towards free… adopt an or else stance re prosecution of copyright infringement elsewhere… threaten a change in copyright policy and use threat to get deal sign-up." (SUF 161)
In addition, Google went so far as to offer automated copyright policing only to companies that share revenues with Google. Google manager David Eun's email said: "Audio fingerprinting system whereby the content partner can send 'reference fingerprints' to audible Magic's database 'are now live as well and are only offered to partners who enter into a revenue deal with us." (SUF 216)
The Second Circuit Court of Appeals recently decided to require Judge Stanton to retry the Viacom vs. Google-YouTube case, to determine if the facts show willful blindness to Google-YouTube's mass copyright infringement, because the Appeals court found: "…a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."
Even after the rejection of the Google Book Settlement, Google continues to illegally copy, copyrighted books, 15 million and counting, and apparently is using that threat of continued relentless infringement to divide and conquer the publishers and author classes, and to get publishers to agree to Google's terms and drop their infringement lawsuit.
Sixth, Google claims behavior legal that its peers and others know to be illegal. When Wikileaks' Julian Assange made public hundreds of thousands of national security cables and documents that Private Bradley Manning allegedly stole from the American Government, Google's peers immediately recognized the illegality of the action and decisively acted to minimize the damage to the national security of the United States and others. Amazon immediately stopped hosting Wikileaks site when notified of the problem. eBay's Paypal arm quickly shut down a donation payment account for Wikileaks, because it was engaged in illegal activity. In stark contrast, Google did the exact opposite; Google ensured maximum damage by indexing all of the Wikileaks stolen documents so they could be universally accessed by anyone in the world, including America's enemies and terrorists.
In responding to a question at the DLD media conference in Munich (as reported by Reuters) Google's Acting CEO Eric Schmidt explained: "has Google looked at the appropriateness of indexing Wikileaks? The answer is yes, and we decided to continue, because it's legal." Reuters reported: "Schmidt said Google had considered stopping indexing confidential cables released by Wikileaks, but had decided to carry on." Simply, Google willfully maximally-distributed stolen national security documents to the world knowing the documents were stolen and gravely harmful to national security."
Finally, Google's leadership will ignore repeated law enforcement warnings of criminal business practices. Google admitted in the in the DOJ-Google criminal non-prosecution agreement that Google was aware since 2003 that its advertising practices -- that facilitated the “unsafe and unlawful importation of prescription drugs" into the U.S. -- were illegal, but did not stop them. The Rhode Island U.S. Attorney who led the Google criminal probe said the evidence was clear that current Google CEO "Larry Page knew what was going on."
IV. Conclusion:
In Google, law enforcement faces a dominant multinational corporation that often thinks, acts and operates as if it were above the law.
It will be telling to see if the DOJ, and/or the State Attorneys General, will let Google flout the rule of law, and obstruct justice, in the FCC-Google wiretapping affair. It is highly unusual for a public company, let alone a company like Google, which represents itself as fully cooperating with a government law enforcement investigation and claims to have done nothing wrong, to proactively and relentlessly shield and protect an employee who invokes his Fifth Amendment right to not incriminate himself. Law enforcement can easily deduce a cover-up from what we learned from the FCC complaint against Google. It appears Google could be protecting Engineer Doe from the FCC because he has incriminating information about Google higher-ups, or it could be that Engineer Doe is protecting Google higher-ups. Simply, what is the purportedly-cooperative Google so afraid of investigators learning? How high and broad Google's cover-up went?
At bottom, if the DOJ and/or the State Attorneys General, allow Google to get away with apparently blatant obstruction of justice, they will only encourage Google to continue to act and operate above the law going forward.
