Google Defends Auto-Deletion of Chats After US Alleged It Destroyed Evidence

Google defended its use of “history-off chats” for many internal communications, denying the US government’s allegation that it intentionally destroyed evidence needed in an antitrust case. The history-off setting causes messages to be automatically deleted within 24 hours. Ars Technica reports: The US government and 21 states last month asked a court to sanction Google for allegedly using the auto-delete function on chats to destroy evidence and accused Google of falsely telling the government that it suspended its auto-deletion practices on chats subject to a legal hold. Google opposed the motion for sanctions on Friday in a filing (PDF) in US District Court for the District of Columbia. Google said it uses a “tiered approach” for preserving chats. “When there is litigation, Google instructs employees on legal hold not to use messaging apps like Google Chat to discuss the subjects at issue in the litigation and, if they must, to switch their settings to ‘history on’ for chats regarding the subjects at issue in the litigation, so that any such messages are preserved,” the Google filing said.

Google said the government plaintiffs “contend that the Federal Rules specifically mandate that Google should have applied a forced history on setting for all custodians for all chats created while the custodian was on legal hold, regardless of the possible relevance of the message to the litigation.” But federal rules only require “reasonable steps to preserve” information, Google pointed out. “Google’s vast preservation efforts here — and specifically its methodology with respect to history-off chats — were ‘reasonable steps’ under the Rule,” Google argued. Google said the US and state attorneys general “have not been denied access to material information needed to prosecute these cases and they have offered no evidence that Google intentionally destroyed such evidence.” Google also argued that the objections came too late, alleging that the government knew before litigation began “that there was a subset of chats not automatically retained.” “Plaintiffs’ motions are barred at the outset because they were on notice of Google’s approach to chats for years, yet did not object until well after the close of discovery. Those tactics should not be countenanced,” Google told the court.

Google said its November 2019 disclosures in an ESI (Electronically Stored Information) questionnaire “show that the distinction between ‘on-the-record’ and other chats was apparent to anyone who wanted to pursue the matter from the outset of DOJ’s investigation. For instance, the ESI Questionnaire response specifies that chat ‘messages are generally retained for a period of 30 days if they have been marked on-the-record, and potentially longer if on-the-record messages are on legal hold.'” Google also said, “it is no secret how Google’s Chat product operates” because it’s a publicly available product and the Google Chat website explains the history-off feature. The Justice Department’s motion last month said things happened very differently. “Google systematically destroyed an entire category of written communications every 24 hours” for nearly four years, the government motion said, continuing […].

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Biden Won’t Stop a Potential Ban On Importing Apple Watches

Medical device maker AliveCor announced today that President Biden has upheld an International Trade Commission ruling that could result in a potential import ban on the Apple Watch over its EKG feature. The Verge reports: Back in December, the ITC issued a final determination (PDF) that Apple had infringed on AliveCor’s wearable EKG tech. In the ruling, the ITC recommended a limited exclusion order and a cease-and-desist order for Apple Watch models with EKG features. If enforced, that would mean that Apple would no longer be able to import Apple Watch with EKG capabilities into the US for sale. According to Apple spokesperson Hannah Smith, the company will appeal the ITC’s decision to the Federal Circuit.

A veto from Biden would have rendered the issue moot. According to The Hill, while presidents generally don’t interfere with ITC rulings, in 2013, former President Obama vetoed a similar import ban after the ITC ruled that iPhones and iPads infringed on Samsung tech. It’s possible that Apple was hoping for history to repeat itself, as it reportedly amped up lobbying last week ahead of Biden’s decision.
Biden’s decision doesn’t mean every Apple Watch from the Series 4 to the Apple Watch Ultra (excluding both generations of the SE) is about to disappear off shelves. Apple’s Smith told The Verge the ITC’s ruling doesn’t have any real impact at the moment. That’s because the Patent Trial and Appeal Board recently ruled that AliveCor’s EKG tech isn’t actually patentable, and AliveCor would have to win its appeal (PDF) to that ruling for any potential ban to take effect. However, AliveCor isn’t the only medical tech company that’s seeking an import ban on the Apple Watch via the ITC. Masimo also sued Apple for allegedly infringing on five of its pulse oximetry patents. Last month, an ITC judge also ruled in Masimo’s favor and will decide whether a potential import ban is warranted in May. If so, that import ban would impact any Apple Watch with an SpO2 sensor (i.e., the Series 6 or later, excluding the SE.)

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Judge Slaps Sanctions on Seattle for Deleting Thousands of Texts Between Top Officials

A federal judge has levied crippling sanctions against the city of Seattle for deleting thousands of text messages between high-ranking officials, including the former mayor and police chief, during the three-week Capitol Hill Organized Protest — a ruling that will undermine the city’s defense against a lawsuit filed by business owners and residents affected by the high-profile protests. From a report: In a pair of lengthy orders Jan. 13, U.S. District Judge Thomas Zilly sent the so-called Hunters Capital lawsuit to trial on two of five claims, dismissing three others. He also ordered the city to pay the attorneys fees for those who showed city leaders destroyed significant evidence about their decision-making during CHOP, including their move to abandon the Police Department’s East Precinct. The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys. “The Court finds substantial circumstantial evidence that the city acted with the requisite intent necessary to impose a severe sanction and that the city’s conduct exceeds gross negligence,” he wrote. For that reason, Zilly said that when the case goes to trial he’ll instruct the jury that it may presume the text messages were detrimental to the city’s legal position and that there’s significant circumstantial evidence they were deleted intentionally.

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Judge Signals Jail Time if Bankman-Fried’s Internet Access Is Not Curbed

Sarah Blesener writes via The New York Times: Since his arrest two months ago, Samuel Bankman-Fried, the disgraced cryptocurrency executive, has been physically confined to the Palo Alto home of his parents, under the force of a $250 million bail package. But he has roamed largely unfettered in the wilderness of the internet: conducting interviews, posting narratives, making calls on encrypted apps and using a virtual private network, a web tool that allows users to conceal data and visit websites without detection. Those unrestrained days may soon be over. On Thursday, a federal judge overseeing Mr. Bankman-Fried’s multibillion-dollar fraud case signaled a willingness to jail him for his persistent testing of his confinement’s boundaries, going beyond what prosecutors had asked. “Why am I being asked to turn him loose in this garden of electronic devices?” the judge, Lewis A. Kaplan, asked prosecutors, describing the well-wired home of Mr. Bankman-Fried’s parents, both professors at Stanford Law School.

No new conditions were set during Thursday’s hearing, the latest of several hearings, held in federal court in Manhattan, to consider more restrictive bail terms. Judge Kaplan asked both sides to prepare concrete proposals that would limit and monitor Mr. Bankman-Fried’s access to the internet without inhibiting his ability to participate in his defense. Federal prosecutors in Manhattan have charged Mr. Bankman-Fried with orchestrating widespread fraud at FTX, the cryptocurrency exchange he founded, accusing him of misappropriating billions of dollars of customers’ money. Prosecutors said he used the funds to finance lavish real estate purchases, political contributions and investments in other companies. After he was charged in December, Mr. Bankman-Fried was released on bail with the requirement that he wear an ankle monitor and stay confined to his parents’ house. […]

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Apple Sued By Stalking Victims Over Alleged AirTag Tracking

schwit1 shares a report from Popular Science: [T]wo women filed a potential class action lawsuit against Apple, alleging the company has ignored critics’ and security experts’ repeated warnings that the company’s AirTag devices are being repeatedly used to stalk and harass people. Both individuals were targets of past abuse from ex-partners and argued in the filing that Apple’s subsequent safeguard solutions remain wholly inadequate for consumers. “With a price point of just $29, it has become the weapon of choice of stalkers and abusers,” reads a portion of the lawsuit, as The New York Times reported […].

Apple first debuted AirTags in April 2021. Within the ensuing eight months, at least 150 police reports from just eight precincts reviewed by Motherboard explicitly mentioned abusers utilizing the tracking devices to stalk and harass women. In the new lawsuit, plaintiffs allege that one woman’s abuser hid the location devices within her car’s wheel well. At the same time, the other woman’s abuser placed one in their child’s backpack following a contentious divorce, according to the suit. Security experts have since cautioned that hundreds more similar situations likely remain unreported or even undetected.

The lawsuit (PDF), published by Ars Technica, cites them as “one of the products that has revolutionized the scope, breadth, and ease of location-based stalking,” arguing that “what separates the AirTag from any competitor product is its unparalleled accuracy, ease of use (it fits seamlessly into Apple’s existing suite of products), and affordability.” The proposed class action lawsuit seeks unspecified damages for owners of iOS or Android devices which have been tracked with an AirTag or are at risk of being stalked. Since AirTags’ introduction last year, at least two murders have occurred directly involving using Apple’s surveillance gadget, according to the lawsuit.

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Epic Says Google Paid Activision Millions Not To Launch Rival App Store

An anonymous reader quotes a report from CNET: Fortnite developer Epic Games said Google paid the equivalent of $360 million to Call of Duty developer Activision Blizzard as part of a broad agreement that included a promise the gaming giant would not create a rival app store. The move, Epic said, helped solidify Google’s hold on phones and tablets powered by its Android software. In the filing, newly unredacted Thursday, Epic said Google paid other developers in a similar way to Activision. Epic cited an agreement Google struck with Tencent, the Chinese company that owns League of Legends developer Riot Games, giving it about $30 million over one year. Like Activision, that money too was part of a larger agreement for Riot to maintain its Google-powered games and spend money promoting them as part of Android.

Google and Activision Blizzard both denied Epic’s allegations about competing app stores. Google said the agreements are designed to provide incentives for developers to create apps for Google Play. “Epic is mischaracterizing business conversations,” a Google spokesperson said in a statement. “It does not prevent developers from creating competing app stores, as Epic falsely alleges.” Activision, for its part, said Google never “asked us, pressured us, or made us agree not to compete with Google Play.” Activision is in the midst of being acquired by software giant Microsoft for $68.7 billion. […] The filing is the latest allegation in Epic’s ongoing lawsuit against Google, which it accuses of operating a monopoly with Google Play, which sells apps for Android. Epic’s ongoing lawsuit is similar to another battle it’s waging against Apple and its App Store over similar concerns of monopolistic practices. In both cases, Epic is pushing the companies to reduce the control they exert over their respective platforms, both in terms of how phone and tablet owners pay for apps and where to download them from.

It’s unclear whether Epic’s argument that Google paid developers to not compete will win in an eventual court case. Epic said in its complaint that “Google understood” the agreement would mean that Activision would “abandon its plans to launch a competing app store, and Google intended this result.” But Armin Zerza, now Activision Blizzard’s finance chief, said in one of the court filings that the company chose not to launch a rival app store because of the risk of failure, in addition to costs for development and marketing. When asked about entering a deal with Google that “accomplished your objectives,” Zerza said that the Activision Blizzard board approved a deal with the Android maker because it “created multi-hundred-million dollars of value for us across multiple ecosystems.” If Activision is ultimately purchased by Microsoft though, it may end up helping create an app store after all. Microsoft told regulators in October that it intends to build its own mobile app store to rival Google and Apple. Activision’s deep library of popular games, including Candy Crush Saga and World of Warcraft, will be a key part of that effort. “Epic’s allegations are nonsense,” an Activision representative said in a statement sent to PC Gamer. “We can confirm that Google never asked us, pressured us, or made us agree not to compete with Google Play — and we’ve already submitted documents and testimony that prove this.”

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Apple Loses Second Bid To Challenge Qualcomm Patents At US Supreme Court

The U.S. Supreme Court on Monday again declined to hear Apple’s bid to revive an effort to cancel three Qualcomm smartphone patents despite the settlement of the underlying dispute between the two tech giants. Reuters reports: The justices left in place a lower court’s decision against Apple after similarly turning away in June the company’s appeal of a lower court ruling in a closely related case challenging two other Qualcomm patents. Qualcomm sued Apple in San Diego federal court in 2017, arguing that its iPhones, iPads and Apple Watches infringed a variety of mobile-technology patents. That case was part of a broader global dispute between the tech giants. Apple challenged the validity of the patents at issue in this case at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board.

The companies settled their underlying fight in 2019, signing an agreement worth billions of dollars that let Apple continue using Qualcomm chips in iPhones. The settlement included an Apple license to thousands of Qualcomm patents, but allowed the patent-board proceedings to continue. The board upheld the patents in 2020, and Apple appealed to the patent-specialist U.S. Court of Appeals for the Federal Circuit. Cupertino, California-based Apple argued it had proper legal standing to appeal because San Diego-based Qualcomm could sue again after the license expires, potentially as soon as 2025.

A Federal Circuit three-judge panel, in a 2-1 ruling, dismissed the case last year for a lack of standing, finding that Apple’s risk of being sued again was speculative and the challenge would not affect its payment obligations under the settlement. Qualcomm has again argued that Apple has not shown a concrete injury to justify the appeal, just like in the “materially identical” case that the high court rejected.

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