Google employee suing for discrimination wants to know if Google can use his data against him

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Lawyers representing a Google employee suing the company want to know whether the search engine giant believes it’s allowed to view his digital communication, a case that has renewed questions about the extent of Google’s power to surveil.

According to a new motion filed in court by the employee’s attorneys Monday, DeWayne Cassel, who’s still employed by Google, gave up “any reasonable expectation of privacy” on any “Google property” or anything used to conduct Google business when he signed his employment agreement with the company. Cassel filed a race discrimination lawsuit against the company nearly three years ago. But Google has declined to answer questions from Cassel’s attorneys, who asked earlier this year whether the company thinks it can still access his data according to the employment agreement.

The attorneys also have asked Google whether the company’s terms of service, which allow it to access user data to “protect Google,” would enable it to access the personal data of non-employees involved in the case, including the judge. Monday’s filing in California Superior Court for Santa Clara County asks Judge Brian C. Walsh to compel Google to answer the questions.

“This motion is completely meritless. We work hard every day to protect personal information, and have not – and would not – access the personal data of Mr. Cassel, his attorney, or the judge assigned to this case,” Google spokeswoman Jennifer Rodstrom said in an emailed statement to The Washington Post.

“We do not file meritless motions,” Cassel’s attorneys wrote in an emailed response to Google’s statement. Cassel, they wrote, “looks forward to Google responding to his important questions, under oath, and pursuant to the judicial process.”

The case raises new questions about employee surveillance. Google has faced criticism in the past for using software to keep a watchful eye over its workforce. The Cassel case brings the debate into the courtroom, and could force Google to answer a thorny question that may not have a straightforward answer.

Google’s business relies on scooping up a nearly unfathomable amount of personal information, from a person’s search history to the contents of their emails and Google Docs files, and feeding it into some of the world’s most powerful computers. The data are used to sell ads and develop artificial intelligence algorithms that do everything from interpret language to automatically make calendar appointments. Google is also facing intense pressure from regulators and lawmakers, some of whom are paying close attention to any statements the company makes about data collection.

If Google accessed communication between Cassel and his attorneys, it could be viewed critically by the judge in the case, said Michael Volkov, principal at the Volkov Law Group and an expert on corporate compliance. “The best strategy is to wall yourself off from communications related to the case,” he said. Volkov said it’s unlikely that a company like Google would cross that boundary and access data from Cassel or the judge.

But there is some precedent for the type of hypothetical behavior that Baker is asking about. Microsoft’s attorneys, for instance, once signed off on accessing the private Hotmail account of a tech blogger to find a leaker in its midst. Microsoft cited its terms of service as the reason it decided the search was permitted. After the case gained media attention, Microsoft changed its policies. It now seeks input from outside experts on whether it should search user accounts and publishes the number of these searches in an annual report. The company declined to comment.

Usually, employees who sue companies for discrimination don’t continue to work for that company. But Google has not fired Cassel, opting to put him on leave and continue to pay him.

Cassel claims Google hired him and other black employees under false pretenses, promising one job and then giving them a different one once they arrived. Cassel alleges the “bait and switch” was part of an effort to increase the company’s diversity numbers. The lawsuit says Google retaliated against him when he complained. Cassel, according to the complaint, has tried to find a new job within Google, but Google has not put him back to work.

Google has denied the allegations in court. Cassel, through his attorney, declined to comment on Monday’s filing.

Cassel’s lawyers say Google could have an advantage in the litigation if it compiles data and uses it to learn more about the parties involved. Monday’s filing cites Google’s terms of service, which all customers agree to when using any Google product. “The privacy policy states Google may use User Data internally to, among other things ‘Protect Google.’ One way Google might well ‘protect itself’ is through litigation defense,” the filing reads. “Google has both motive and the opportunity to access the User Data of adversaries and judicial officers for use in litigation.”

Monday’s filing says Google attorneys at first offered to discuss the question with Cassel’s attorneys this summer, but then put their foot down, refusing to answer. Google, the filing says, cited attorney client privilege as one of the reasons. Cassel’s attorneys’ said they could answer the question without disclosing any privileged conversations Google’s attorneys may have had. Google’s attorneys also said they didn’t understand the question.

Cassel’s attorneys disagreed that the question was difficult to understand. The requests “are not vague and ambiguous,” they wrote, countering, “Google comprehends English. Google Translate understands many languages.”