In a new filing late last week, the US Justice Department alleged that Google “routinely destroyed an entire category of written communications” in its antitrust investigation against the company. The communication – chat messages between Google employees – has been deleted over the course of several years, the DoJ said. A similar issue had been raised by Epic Games in its pending lawsuit, with the Fortnite maker accusing Google of anti-competitive behavior regarding its Play Store and rules about in-app purchases.
However, this latter claim has to do with the Justice Department antitrust case filed against Google in 2020 for monopolizing the search and advertising market.
In it, the DoJ argues that the Federal Rules of Civil Procedure should have required Google to stop automatically deleting chat history once it anticipated the upcoming court case in mid-2019. But Google did not, the government claims. Instead, Google employees could turn their messaging app’s chat history on or off at any time.
It explains that the program Google uses, Google Hangouts, an instant messaging product, offers a feature for “off the record” chats that are automatically deleted by the system after 24 hours. Google had even trained its employees to use the feature to discuss sensitive topics instead of using email, the filing said.
It also references a written policy weeks after the lawsuit was filed that allowed Google employees to control the retention of their chat history by either selecting “history on” chats that kept messages for 30 days to 18 months, depending on choice of the user, or the “history off” texts that disappear 24 hours later. For one-on-one chats, the default setting is ‘history off’.
In addition, the US government alleges that Google lied about its chat retention policies, falsely claiming that it had “introduced a legal hold” to suspend automatic deletion. The company claimed that it kept all of its custody chats, the filing continues, but in reality it has not disclosed to the US government and the court about its 24-hour deletion policy, which continued until this month – years after the case was filed.
“As we now know, Google has routinely destroyed these written communications for the past four years,” the filing reads. “In fact, Google continued to automatically remove these off-the-record chats after it reasonably anticipated a lawsuit, during its investigation in the United States, and even as the company became a defendant in this lawsuit — every 24 hours until 8 a.m. February 2023.”
Of particular interest to Epic Games, the filing additionally references the Fortnite lawsuit as another example of this issue, noting that even after Epic confronted Google with its concerns, it still has not issued its 24-hour takedown policy to the US government withheld.
The messages could have provided the Justice Department with important notices in support of its case or names of witnesses to call. It asks the court to remedy the situation through sanctions and wants the court to order Google to provide more information about the removed chat practices, including written statements and oral testimony, prior to the requested hearing.
The allegations here are notable not only for the weight they carry in the current antitrust disputes between Google and the government, but because similar concerns are now being played out in the Epic Games lawsuit as well. In the latter, the judge has already said that he will not let Google “get away” with removing the chats. At this point, the court in Epic’s case is still collecting additional chats from Google, including those related to the lawsuit and any others that contain terms such as “sensitive,” “history off,” “history is not off’, ‘History on’, ‘History on’, ‘off the record’ or ‘on the record’.