During Kent Walker’s nearly two-decade tenure as Google’s top lawyer, the company transformed from an innovative search startup into a vast empire, consolidating power across wide-ranging markets through serial acquisitions and other anticompetitive tactics. Mr. Walker’s role was to ensure that the law did not interfere with this expansion. His methods included a policy of systematic evidence destruction that one federal judge described as “a frontal assault on the fair administration of justice.”
But today, the walls are closing in on Google. Despite Mr. Walker’s best efforts to to conceal the company’s illegal behavior, over the past year multiple courts have ruled that Google acted illegally to maintain its monopoly power. A jury in California unanimously ruled that Google illegally monopolized app store distribution markets, while a federal judge in D.C. ruled that “Google is a monopolist, and it has acted as one to maintain its [search] monopoly.” Another federal judge is expected to rule soon on the question of whether Google illegally monopolized advertising technology markets.
As the company is held accountable for its conduct, Mr. Walker—once Google’s General Counsel and now its President of Global Affairs—continues to insert himself into debates on technology and society as a credible, public-interested expert. Even as Mr. Walker may be under investigation by the State Bar of California for violating the Rules of Professional Conduct, he still markets himself to the media and policymakers as an authority on AI “ethics.”
After providing an overview of Mr. Walker’s discovery misconduct, this tracker chronicles examples of media outlets citing Walker’s statements (often without providing any context that would enable the public to evaluate his credibility) and his appearance at influential policy events.
Evidence Spoliation
Beginning in 2008, Mr. Walker as General Counsel advised the company to engage in systematic, illegal policies to evade federal enforcers’ antitrust scrutiny. In what is known as the “Walker Memo”, he outlined a series of policies for the company to adopt to ensure that information about Google would be “less likely … [to] be discovered by an adversary and used against … [the company]”—even though the law requires defendants to preserve all relevant written evidence. Walker’s strategy included implementing an automatic deletion policy for all employee chats after 24 hours and moving sensitive discussions “off the record” to those automatically deleted chats. As the DOJ noted, the Walker memo was “an early hallmark of Google’s intent to deprive litigants of evidence.” He also developed a “Communicate with Care” policy to hide more evidence through false claims of attorney-client privilege.
Executives and employees from the top down at Google engaged in these illegal practices, even as the company was under DOJ investigation and legally obligated to preserve information beginning in 2019. The current CEO Sundar Pichai — who has also been at the company for over two decades — admitted he was aware of the policies put forth in the Walker Memo and did nothing to change them. He also admitted to copying lawyers on emails to “seek[] confidentiality for [a] document” under false pretenses to prevent business communications from being revealed to plaintiffs and courts. Mr. Pichai also testified that he relied on his legal team — particularly Mr. Walker — to instruct him properly on document retention. Even still, Mr. Pichai said in one instance “also we can change the setting of this group to history off.”
There are numerous other employees who have also spoliated evidence. As just two of many examples, one employee stated “I really feel super uncomfortable us continuing this on the record” and another wrote “I see that [h]istory is on in this chat. If that can’t be changed, can I please be removed…?”
Judges Shocked By Google’s Misconduct
Judges presiding over Google’s recent antitrust cases have called out company executives for their behavior. During the Epic v. Google trial, concerning Google’s app store monopoly, Judge James Donato noted that Kent Walker’s testimony was “evasive” and “materially inconsistent with testimony given by Google’s witnesses,” sharing that “this presents the most serious and disturbing evidence I have ever seen… with respect to a party intentionally suppressing potentially relevant evidence in litigation.” Judge Donato also accused Mr. Walker of “tap-dancing around” questions for why exactly he chose not to preserve company communications. And in the Google search case, Judge Amit Mehta stated that “the court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants.”
Google’s tactics to delete and hide evidence under the direction of Mr. Walker have “created administrative chaos” in litigation schedules and ultimately delayed justice for Google’s illegal behavior. As a result, the DOJ requested sanctions against Google for document spoliation, including the presumption that “Google intended to maintain its monopoly.”
Judge Donato sanctioned Google by informing the jury that they could presume any deleted evidence would have been unfavorable to Google; the jury ultimately ruled against Google on all counts. Although Judge Mehta abstained from formally adopting that presumption because it was moot in light of his merits ruling against Google, there is an opportunity to ensure appropriate executive accountability during the remedies phase—and Judge Leonie Brinkema has an opportunity to take a more decisive stance in the adtech monopoly case.
AI “Ethics” Lobbying
As the current President of Global Affairs and Chief Legal Officer of the company, Mr. Walker has a vested interest in a hands-off approach from regulators and the courts. He has benefited greatly from his senior role at the company. At the same time, he has evaded personal responsibility for enabling his employer to violate federal and state laws.
Below, we outline the various public statements Mr. Walker has made in an attempt to save both his and Google’s reputation, and to push the false narrative that the government is “pushing a radical … agenda,” and “overreaching” when enforcing laws Google has violated, or that the government will “break products… that people love.” Contrary to Mr. Walker’s statements, over 60 percent of voters agree that big tech firms need to be broken up. And case law endorses this and other remedies to open markets to real competition and deprive Google the fruits of its ill-gotten gains.
Further Reading
Read Economics Liberties’ Letter to the California State Bar Regarding Kent Walker’s Discovery Misconduct here.
Read Economics Liberties’ Brief “Google Broke Internet Search. It’s Time to Break Up Google,” here.
Read Economic Liberties’ Amicus Brief in Epic v. Google here.
Read Economic Liberties’ “Big Tech Abuses” Tracker here.
This data was last updated on 12/17/2024.
Date | Title | Source | Category | Subject | Details |
---|---|---|---|---|---|
The Next Steps for Responsible AI | The Atlantic | Public statement | AI policy | ||
11/25/2024 | Halifax International Security Forum 2024: When AI Meets Geopolitics | Halifax, Politico | Public statement | AI policy | need to "harmonize AI regulations and pro-innovation agendas"remove barriers to innovation. |
11/22/2024 | Google representative responds to Justice Department antitrust proposals | NPR-All Things Considered | Public statement | Google search remedies | that hrome would jeopardize people's privacy; says that banning Google from paying companies to make Google the default w hurt other companies; ignores role of anticompetitive tactics in claiming Google is superior in search. |
11/21/2024 | DOJ’s staggering proposal would hurt consumers and America’s global technological leadership | Blog | Google search remedies | Claims the DOJ is pushing a “radical interventionist agenda ” instead of proposing remedies “related to the issue in this case”; alls the remedies proposal overbroad, going beyond the court’s decision; it will “break … products … that people love and find helpful”; ays the remedy is government overreach that would hurt consumers, developers, and small businesses, and jeopardize leadership. | |
10/16/2024 | AI’s Promise for Security and Prosperity—And What We Need to Do to Fulfill It | The Aspen Institute | Article/Opinion piece | AI policy | Claims that smart AI regulation “balanced”; alls for “targeted rules” that “regulat[e] outputs ; ays there is an AI arms race and for national security purposes we should “get to work” |
Mid-2024 | The Sweet Spot | The Atlantic (sponsored content from Google) | Public statement | AI policy | Says there is a risk of under and over regulation, and hopes to "share the benefits of [Google's] experience with governments" to hit a sweet spot. |