Google hid docs key to antitrust case, DOJ says- POLITICO

With help from Leah Nylen and Rebecca Kern 

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— Check your privilege: The Department of Justice is accusing Google of withholding documents from antitrust investigators through a willful misreading of attorney-client privilege.

— Think of the children: Pressure is building on lawmakers to pass kids’ privacy legislation while momentum’s on their side — but has Congress already missed its window?

— Telecom bills incoming: The Senate Commerce Committee will vote today on bills to slash exorbitant call fees for inmates and improve Congress’ ability to legislate around a coming wave of 6G technologies.

IT’S TUESDAY, MARCH 22. Welcome to Morning Tech! The National Park Service don’t lie it’s officially peak bloom for D.C.’s cherry blossoms. The crowds can be overwhelming, but if you go early in the morning you can frolic to your heart’s content (or so I’ve heard — I’m not exactly an early riser, but I’m gonna try to ride my bike to the Tidal Basin before work this week!).

Scoops? Tips? Thoughts? Dog (or cat) pics? Send any and all by email to [email protected], or via Twitter DM to @BrendanBordelon. Got an event for our calendar? Send details to [email protected]. Anything else? Team info below. And don’t forget: Add @MorningTech and @PoliticoPro on Twitter.

DOJ ACCUSES GOOGLE OF ‘MISCONDUCT’ BY WITHHOLDING DOCS — A federal judge will hold a hearing on April 8 to decide whether Google improperly shielded sensitive business documents from regulators, after Justice Department prosecutors accused the search giant of hiding evidence of violations during its ongoing antitrust lawsuit against the company.

— Not so careful: For nearly a decade, Google’s “Communicate with Care” training instructed employees to routinely copy lawyers and mark emails and documents as privileged, DOJ prosecutors said in a redacted motion for sanctions filed on Monday. The prosecutors said that practice muddied which documents need to be turned over to prosecutors and which the company can legally hold back under attorney-client privilege. After prosecutors objected to Google’s privilege claims, they said, outside lawyers for the company handed over tens of thousands of wrongly withheld documents.

“These directions to misuse the attorney-client privilege were misconduct,” the DOJ prosecutors wrote, claiming Google’s instructions to its employees were not issued “out of an abundance of caution” but were instead meant to “hide specific communications about subjects being investigated by regulators.”

The agency said the alleged misconduct “continued unabated after the company was on notice of the Department of Justice’s investigation,” and said it believes “many other questionable documents remain fully withheld or redacted.” Prosecutors urged U.S. District Court Judge Amit Mehta to force Google to hand over any improperly withheld or redacted documents as soon as possible.

— Case study: Prosecutors highlighted documents that were improperly withheld, including a July 2019 email between Google employees regarding a revenue-sharing agreement with phone manufacturer LG for using the Android operating system that copied a lawyer who never responded. In another January 2018 email that was withheld, Google CEO Sundar Pichai asked YouTube CEO Susan Wojcicki for advice about a soon-to-be published news story and copied Kent Walker, Google’s top lawyer, who never responded.

— ‘Flatly wrong’: Google spokesperson Peter Schottenfels said the company has turned over more than 4 million documents to the Justice Department, including many that employees had thought might be privileged. “Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong,” he said. Schottenfels added that the company’s work to educate its employees about legal privilege was no different than efforts made by many other American companies.

IMPATIENCE GROWS OVER INACTION ON KIDS PRIVACY: A coalition of 60 privacy and mental health advocacy organizations is calling on Congress to act quickly to update a decades-old children’s online privacy law while momentum is on their side.

But with a Supreme Court nomination fight just starting, tough negotiations over a sprawling competitiveness package looming and midterm elections months away, it’s not clear lawmakers will have the bandwidth; the relevant House and Senate committees have yet to even hold a hearing on relevant legislation.

— Seize the moment:The letter being sent this morning to House and Senate leadership was signed by privacy advocates like FairPlay and Common Sense, as well as medical organizations like the American Academy of Pediatrics. The groups all want Congress to answer President Joe Biden’s call for better privacy protections in his State of the Union address by passing legislation to rein in social media algorithms and targeted ads.

“There’s never been a moment where I thought the chances of passing really significant legislation were higher,” said Fairplay executive director Josh Golin, who said he’s spent 18 years working on children’s privacy issues.

Golin said his group supports the bipartisan COPPA 2.0 bill (S. 1628) from Sens. Ed Markey (D-Mass.) and Bill Cassidy (R-La.), which expands privacy protections to 13-16 year-olds and bans targeted ads for kids. Fairplay also supports the Kids Online Safety Act (S. 3663), a bill sponsored by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), that requires platforms to give kids and parents the ability to opt out of viewing content recommended by algorithms.

— Flashback to Haugen’s debut: Golin’s letter comes nearly six months after Facebook whistleblower Frances Haugen first testified on the Hill about the negative emotional effects some teens report experiencing while using Instagram — and just over four years to the day since the Cambridge Analytica scandal broke and made data privacy a hot-button issue in Washington.

The Senate Commerce Committee has so far failed to hold hearings on either the COPPA 2.0 or KOSA bill. Tricia Enright, a spokesperson for committee chair Maria Cantwell (D-Wash.), said Cantwell remains committed to advancing bills addressing kids’ privacy — and a Democratic staffer, who requested anonymity in order to speak freely about legislative scheduling issues, said the committee hopes to mark up bills related to kids’ privacy sometime this spring.

SENATE TO MARK UP BILLS ON INMATE PHONE CALLS, 6G: The Senate Commerce Committee meets this morning to mark up several pieces of legislation, including two bills that would significantly impact the telecom landscape:

— Cheaper jailhouse calls: Senators will vote this morning on S. 1541, a bill from Sen. Tammy Duckworth (D-Ill.) with few GOP co-sponsors that would empower the FCC to require that prisons, jails and detention centers offer “just and reasonable” phone rates for the incarcerated. Lawmakers have tried for years to rein in the sky-high phone call rates that many carceral institutions slap on inmates, but have so far had trouble finding consensus with congressional Republicans and law enforcement groups. Both groups were particularly concerned by congressional efforts to push down rates for calls that don’t go across state lines.

This time may be different — a Duckworth aide told MT on Monday that technical amendments the senator plans to introduce this morning have calmed concerns from the National Sheriffs’ Association, a major law enforcement group that previously opposed the bill. The changes appear to require the FCC to consider industry-wide average costs for telephone and advanced communication services, and to take safety and security costs into account when setting new rates.

A recent letter from sheriffs’ association head Jonathan Thompson to Cantwell and Senate Commerce ranking member Roger Wicker (R-Miss.), seen by MT, asks that the amendment from Duckworth be favorably reported out of committee.

— 6G on tap: Even as wireless carriers continue the 5G rollout, lawmakers are already getting ready to legislate around the next generation of wireless technology.

This morning senators will vote on the Next Generation Telecommunications Act (S. 3014), a bill supported by top telecom senators in both parties that would authorize $10 million to create a “Next Generation Telecommunications Council.” The panel would advise Congress on all things related to 6G — including its potential to supercharge “smart city” technologies — and would be made up of representatives from the National Science Foundation, the Commerce Department, the Federal Communications Commission and other federal agencies.

The bill isn’t Congress’ first attempt to create a 6G council. A similar effort — this one with only a $7 million price tag — was included in the House-passed version of the Build Back Better Act (H.R. 5376). The House’s America COMPETES Act (H.R. 4521) also includes similar language directing the FCC to create a 6G task force, raising the prospect that some type of 6G panel will be folded into the final competitiveness package.

SPEAKING OF … The Senate voted 66-29 on Monday evening to invoke cloture on the motion to proceed to the competitiveness bill passed in February by the House, replacing that bill with the Senate-passed U.S. Innovation and Competition Act (S. 1260) and kicking it back to the lower chamber.

Though some steps still remain, this vote marks the first real movement in weeks toward a conference committee to reconcile the House and Senate’s rival competitiveness packages. The two bills each include $52 billion in subsidies for the microchip industry, along with a slew of research, trade and foreign policy provisions meant to counter China. A senior Senate aide, who requested anonymity in order to discuss scheduling, said they plan to officially start the conference before the end of this work period (which ends on April 8).

Evelyn L. Remaley is joining the law firm Wilkinson Barker Knauer as a partner in its Washington, D.C., office. She was most recently acting assistant secretary of Commerce for communications and information and acting National Telecommunications and Information Administration administrator. … Sanjukta Paul, an assistant professor at Wayne State University who specializes in antitrust and labor, will be joining the University of Michigan Law School. … Jamie Pascal and Sade Bruce are respectively the new director of civic innovation policy and the operations and partner manager at Chamber of Progress.

Crisis averted? The Wall Street Journal reports Apple supplier Foxconn is once again operating its factories in Shenzhen, China at full capacity (after shutting them down last week due to spreading Covid cases).

SFO to YYZ: Move over Austin and Miami — Toronto is the tech industry’s hot new hub, according to the New York Times.

Grubbed the wrong way: Washington D.C. Attorney General Karl Racine is suing food-delivery app Grubhub for allegedly misleading District residents about prices, services charges and other aspects of their order, according to TechCrunch.

Not that shocked: Reuters reports a Russian court found Meta guilty of “extremist activity,” upholding the Kremlin’s ban of Facebook and Instagram (WhatsApp can stay, for now).

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