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Google’s claim that it fought the Wikileaks gagging order just doesn’t add up

FBIBy Simon Davies

Google’s claim that it fought the gagging provisions of a federal handover request for detailed information on three Wikileaks staff is not only wholly disingenuous, it’s also deceptive.

Since the issuing of that demand in early 2012, it took almost three years before Google finally admitted to WikiLeaks that it handed over the data to the FBI.

In a letter to Eric Schmidt, WikiLeaks responded that it is “astonished and disturbed” that the advertising giant waited so long to make the admission.

Google would have calculated that fighting federal orders had an elastic limit, and the company took the decision to carefully choose its battles. Better, then, to sacrifice Wikileaks on this occasion in favour of less contentious issues.

Wikileaks pointed out that the long delay could have hindered the organization’s chances to protect it rights to “privacy, association and freedom from illegal searches.” The letter demanded that Google list all the content it supplied to FBI and enquires as to whether Google attempted to challenge the warrants.

Google’s initial response last week to the Wikileaks letter was along the lines that the company had been subjected to a gag order preventing it from notifying targets about the disclosure. Nothing was said at the time about the company fighting that order – just that it had pursued due diligence.

Was this rather vast omission merely an oversight? It’s doubtful. The company’s response to such a sensitive issue would have passed by numerous clever eyes before being cleared. If the company truly had robustly contested the gag order, then inevitably someone would have urged putting that nugget front and centre. And if the company had genuinely fought the gag order, that nugget would have been widely known in the right circles.

But no, it took a few more days of PR hell before a Google lawyer claimed, during a private press interview, that the company had contested the order. More than contested – they had fought it.

I’ll go out on a limb here with an alternative scenario.

In early 2012 – eighteen months before the initial Snowden disclosures – Google was (and possibly still is) up to its neck as a key data supply partner to the federal government. Its role was highly secretive, complex and subject to multiple trade-offs.

At the time of the FBI request, Wikileaks was an extremely hot potato. Google would have calculated that fighting federal orders had an elastic limit, and the company took the decision to carefully choose its battles. Better, then, to sacrifice Wikileaks on this occasion in favour of less contentious issues.

But like all successful corporations, Google is risk averse. So rather than throwing all its eggs into the federal basket, the company probably covered its back by submitting a Papier Mache argument against the gagging order. Something routine and low key – nothing too contentious. But still, an action buried somewhere on the record.

You know… in the same way that some political factions lodge procedural motions against contentious legal proposals “just in case”.

Being routine and low key, it is possible that even as late as last week, Google executives didn’t know that the gagging order had been contested.

But make no mistake, there’s a huge difference between “contesting” an order, and actually “fighting” it, as Google claims to have done. Ask Twitter. It went through this process the previous year and won its case against a gagging order.

Google needs to be clear and precise about what happened in this episode. Right at the moment the company’s already sullied reputation is taking a further hammering, particularly in civil society. Partnering systematically with the feds is one thing, but engaging in hypocrisy, secrecy, unfairness and deception is quite another.