Discovery Dumpster Diving

Let’s say you are an evil genius. You hatch a brilliant plan that is probably not legal and might backfire in the future. Do you immediately transcribe it in plain language in an email?

I am cautious; I would not. But apparently one of the secrets of being an executive at a tech company is brazenly documenting things that may eventually lead to criminal allegations or, at least, be unsavoury and damaging to your company’s image.

From an FTC press release today:

The FTC filed the amended complaint today in the U.S. District Court for the District of Columbia, following the court’s June 28 ruling on the FTC’s initial complaint. The amended complaint includes additional data and evidence to support the FTC’s contention that Facebook is a monopolist that abused its excessive market power to eliminate threats to its dominance.

Here’s an excerpt from the complaint (PDF):

Maintaining its monopoly through acquisition was a natural choice for Facebook. The company has long sought to achieve and maintain dominance through acquisitions rather than competition, reflecting a deeply rooted view within Facebook that, as Mr. Zuckerberg put it in a June 2008 internal email, “it is better to buy than compete.” Facebook’s acquisitions have often focused on arresting the growth of potential rivals: for example, following Facebook’s failed 2008 attempt to acquire Twitter, Mr. Zuckerberg wrote: “I was looking forward to the extra time that would have given us to get our product in order.” […]

Meanwhile, Sean Hollister at the Verge read through many of the documents revealed in Epic v. Apple and pulled out a bunch of interesting tidbits.1 Here’s one:

In the agenda notes for a 2011 corporate strategy presentation, to be delivered by Jobs himself, he calls 2011 the “Year of the Cloud,” and makes one of its three tenets to “tie all of our products together, so we further lock customers into our ecosystem.”

That agenda was sent in an email to Apple’s executive team, judging by the abbreviation in the “To:” field. It was previously released during Apple’s lawsuit against Samsung, but the line reading “iPhone Nano plan” was redacted at the time.

Here’s another:

For Back to School, Eddy Cue suggests that Apple should bundle iTunes gift cards with new devices instead of putting them on sale — specifically to lock customers into Apple’s ecosystem and dissuade them from switching phones. “Who’s going to buy a Samsung phone if they have apps, movies, etc already purchased? They now need to spend hundreds more to get to where they are today,” says Cue.

Choire Sicha on Twitter:

Once again I am begging executives to simply use the telephone instead of putting their dastardly schemes in an email.

It is stunning to read the blunt discussions of tech executives in these emails. I picked just one quote from the FTC’s filing, and it is clear that Facebook’s management — especially Zuckerberg — either assumed that none of this could ever be found illegal, or that they did not care if it were. It is shocking.

In Apple’s case, there is Jobs’ typically straightforward explanation of “further lock[ing] customers into” the company’s products and services. Lock-in tactics are not inherently illegal. But Apple’s private discussions paints an unflattering image compared to the way it presents this information publicly, often using words like “seamless”.

Similarly brazen emails were discovered during the anti-poaching lawsuit several years ago. It surprised me even then to see direct demands from a senior level HR executive at Apple to “add Google to your ‘hands-off’ list” and “be sure to honor our side of the deal”. Then there’s Eric Schmidt’s email to Jobs stating that he would “prefer [Google exeutive Omid Kordestani] do it verbally since I don’t want to create a paper trail” — which, I repeat, he wrote in an email.

From a justice perspective, I am glad so many of these schemes appear in plain language in emails with so little room for interpretation. But I will always be surprised to see the architecture of potential crimes laid so plainly bare in plain text.

Perhaps these executives believe they are effectively immune from prosecution. In the U.S., companies are often fined and otherwise punished for criminal behaviour, but it is rare for individuals to be held to account. If it were more common to make executives responsible for the criminal actions of the companies they control, would there be fewer corporate crimes, or would there just be fewer emails describing them in plain English? I have to wonder.

  1. I could not help but notice one thing Hollister got wrong:

    Last July, Apple CEO Tim Cook testified under oath before Congress that “we treat every developer the same.” But as previously unearthed documents revealed, Apple was more than willing to give Netflix all sorts of special treatment to keep its cut of Netflix’s subscription fees.

    Here’s something I haven’t seen previously reported, though: it appears Apple had already given Netflix a sweetheart deal where it took just 15 percent of subscriptions Netflix sold in its app. […]

    This deal was previously reported in two different capacities: once in 2015 by Recode’s Peter Kafka and, another time in 2019 by Edmund Lee in the New York Times. In Kafka’s case, it only covered subscriptions started through the Apple TV, while Lee’s reported that Netflix’s 15% cut was for subscriptions sold through apps on all Apple devices. ↥︎