Google GC Kent Walker on Internet Disruption and Censorship

Episode Notes

Transcript

In-House Legal: Google GC Kent Walker on Internet Disruption and Censorship – 5/19/2016

Advertiser: Welcome to In-House Legal, where we cover a variety of the issues pertinent to the general counsel and in-house legal departments of small, midsized, and large organizations. Join host Randy Milch each month as he discusses the latest developments, trends and best practices for this very busy and often complicated area of law. You’re listening to Legal Talk Network.

Randy Milch: Hello. My name is Randy Milch and I’m the host of In-House Legal on the Legal Talk Network. I am honored and happy to have as a guest today, Kent Walker, senior vice president for legal, policy, trust, and safety at Google. Kent is a son of Silicon Valley who’s succession of increasingly important jobs in the tech industry tracks the evolution of technology over the last two decades. From disruption to censorship, there’s a lot to be discovered, so let’s get started. Kent, welcome to In-House Legal.

Kent Walker: Thank you very much Randy, it’s good to be with you today.

Randy Milch: So let’s spend a few minutes on your career because you have actually had a fascinating one in Silicon Valley. You’re a native there but after law school and after a short stint in private practice, you went into the US Attorney’s office. What made you decide to go that route?

Kent Walker: Well, I had always been interested in public affairs and the opportunity to be involved in public law. In fact, when I was working for a law firm, a lot of the work I was doing was with government clients in the US and overseas, so there was always that interested. And then the opportunity to be directly involved in trying cases, in matters that I felt were important and interesting that were just too good to turn away from them. So I had a five year stretch with the Department of Justice, including both being a prosecutor in the courtroom and then working back on broader policy issues in what’s called May justice in Washington DC.

Randy Milch: So there’s a lot of discussion, Kent, among gray hairs in the legal profession to the young folks about their first job out of law school and the kind of training they should get. Was it your perception that the US Attorney’s office provided that overall training that’s so valuable to a young lawyer?

Kent Walker: I think there are a whole variety of things you want to be trained on. I think of the different components of what a lawyer needs to do. We need to manage projects, we need to work well with people. We need to be good at articulating points of view, both orally and in writing. You pick up different aspects of that along the path and I’m not sure there’s one great source of training for that. Law firms have organized training programs and sometimes those can be useful, but in many cases there’s a quality of learning by doing that you can only get when you have the experience yourself. I remember the first time I got up to try a case and feeling so nervous I wasn’t sure I was going to be able to go through with it. But by the time you’ve done it thirty times you develop a certain muscle memory. So I think you take your training where you can find it. Working in the Department of Justice, which is in a sense the world’s largest law firm, is fascinating both from a practical perspective and from an operational perspective as you see how a large organization deals with complex issues.

Randy Milch: Well we’ll get back to your prosecutorial background later because I think it’s an interesting set of skills that you bring to your job. But let’s continue on the path of your career a little bit. Leaving the attorney’s office and you go to Air Touch, what made you decide to go in-house at that point as opposed to going back to a law firm?

Kent Walker: Well I think after you spend some time with the Department of Justice you reach a point where you need to decide if you’re going to be a career prosecutor or go off and explore other things. And for me at that time in the Bay area, there were a lot of new, interesting things coming to the forefront. New technologies, new business models and the like. Air Touch was an early mobile spin off from Pacific Bell then PacTel. And starting to focus on the notion of new kinds of ways people could work with what was then the novel idea of a mobile phone. This was before the idea of smartphones appeared to anybody. But the opportunity to start to work in these areas of new technologies and new ways that people could use technology was very attractive to me. As a kid growing up in Palo Alto, I always had been fascinated by science fiction. We were playing video games before there was video and working on teletype machines in the Palo Alto unified school district offices and hearing all the clatter in the background of teletype machines printing out how spaceships were moving through space. So I had always been fascinated by the social implications of technology and starting to work in an environment where there were new and different kinds of technology becoming a part of people’s daily lives was very appealing.

Randy Milch: So you have the cell phone in its earliest incarnations that many of our younger listeners will probably not remember, actually, pre smartphone. We can all remember when the flip phone became a big deal for us. Then you decide to go off in what I can only term as first generation internet world; Netscape which then morphed into AOL. What was your thinking about leaping from Air Touch which is a son or offspring of the Bell system – and I know exactly what that’s like – to the fledgling internet?

Kent Walker: Well this was a time when Netscape had just gone public a year before so there was a lot of intrigue but not a lot of understanding about what that business model ultimately might turn into. And the opportunity to move from a company that was in a pure communications base into a company that was just exploring a new way of communicating with browsers and the like was very attractive. And Netscape itself was a magical company. It never got to be more than 3 or 4 thousand employees, but there was a sense of starting a new wave of globalizing accessed information for people around the world. The original Mosaic browser which turned into Netscape and then ultimately what people now know as Mozilla Firefox as open source version of that was the first time that people really had a graphic user interface to access information on computers. Before that time it was a command line control. You’d see a little prompt on your screen. A blank, black screen with your cursor blinking waiting for you to put something in as opposed to being able to move around with a mouse and explore the web the way we all are used to doing it now. So that opened up so many legal issues, business issues, the creation of the internet as an international platform for the exchange of information. It was a very exciting time.

Randy Milch: And what were the sort of legal issues that you in particular were dealing with at Netscape and AOL? Was it on the commercial side or was it on the relationship with government? Because those were the days when the DMCA was coming around and those other issues that sort of formed the initial regulatory framework for the internet.

Kent Walker: That’s absolutely right. Certainly there were commercial issues that were important. Netscape was struggling to get traction as an internet startup and then ultimately the corporate issues involved in the consolidation with AOL. But at the same time it really was the foundation for internet regulation with issues like the Digital Millennium Copyright Act, the Communications Decency Act; some parts of which were struck down by the Supreme Court, other parts of which became an essential form of safe harbor which protected the ability of various kinds internet platforms to allow people to share information. And not just in the United States, Europe at the same time was coming forward with its e commerce directives and privacy directives that’s at the framework that we still work under today. So being involved in all of those different areas. We were a small company, not a significant player in the debate, but one that obviously had a point of view and was a way of illustrating the potential of this new marketplace. So it was a real balance across those things. We got involved in some of the earliest privacy issues. There were questions of the antitrust, the Netscape and Microsoft battles. In a sense it was like being in Manchester at the beginning of the Industrial Revolution. We didn’t quite know what was happening but it was clear that something was happening. And it ultimately led to what I think of as the information revolution led to the creation of information law in a sense. If you look at categories like privacy and defamation or some of the ways that information is exchanged around the world in jurisdictional questions. Intellectual property definitions, the limits on patents and copyright. New questions about antitrust and how that plays out in a digital economy. Those questions all started in the 90’s as the internet started to have traction in people’s daily lives and the way businesses were operating.

Randy Milch: So you’re at Netscape, it becomes AOL, and then you decide that you have been at one place for too long and you jump again. Tell us about going to try to put TV on the internet a little bit before its time.

Kent Walker: Sure, and this was an interesting time about 2001 when the internet bubble was just about to start popping and a lot of startups in the valley had a difficult time. So when I went from Netscape looking for a new opportunity, Liberate – which was a joint venture between Netscape and Oracle – as you say bringing internet to television, but unfortunately doing it probably about ten years too soon before a lot of enabling technologies had been fully developed. So that was the challenge. The company went from nothing to throwing out an idea to ultimately declaring bankruptcy after i had left. So in a sense it’s a pure Silicon Valley experience where you have the opportunity to go out and to try something, it doesn’t go the way you hope it’s going to go but you move on to the next opportunity. Then in some ways, that’s the definition of Silicon Valley, being willing to take the failures as well as the successes.

Randy Milch: And the next opportunity for you is eBay which has become obviously one of the great Silicon Valley stalwarts. What was the transition there? Was it pretty seamless? Was there enough firm end to finding new opportunities that was something relatively easy or was this post bubble pop? Was it more difficult in that day?

Kent Walker: Well there was still a robust ecosystem of different companies in this sector. So I remember talking with not just eBay but also Yahoo, Apple and others about different potential legal rules. And one of the attractions to eBay and the work I took on there was focused on regulatory and litigation sorts of matters was that they were and are a marketplace for the world. Really an opportunity to try and bring some of the advantages of market exchange of goods and services to people pretty much everywhere. And one of eBay’s points of success was to start in the United States but very quickly go internationally through Europe, through Asia, through Latin America. And that’s continued to work well for them at the time. It was really just the question of trying to figure out what does it mean to have a single marketplace across all of these jurisdictions. Each of which have different rules about what you can and can’t sell and how do you articulate a standard that works across the platform when you have such very different legal systems.

Randy Milch: Well bring us from eBay to Google then and we’ll figure out some of these other issues once we have you firmly placed in your current role in Google. How did that happen?

Kent Walker: Sure,. EBay, in many senses, was great training for the time at Google. Again, we have this international platform for exchange of information but it goes beyond the sale of goods and services. Now it’s the exchange of ideas which is, if anything, even more prevalent. So when you’re looking at the Google search capability, Google’s model has always been organizing the world’s information and making it universally acceptable and useful. So that’s an inspiring goal for all of us, this notion of the only way to work at Google is you have to believe that knowledge is good and access to information is good. So the search engine is really the embodiment of that and we work every day on questions of access to information, when is limiting information warranted, what are the procedural requirements you have to go through. But then we’ve gone beyond just pure search to have a wide variety of hosting content. Platforms like YouTube or Google Docs and Drive or Vlogger or various other tools; people use GMail to share information. And how should those be regulated? How do we work across continents to come up with a good balance here? So the Google team has grown over the years and we’ve had to deal with a lot of interesting new issues as they’ve come along. Some of them I’ve alluded to before, some of them new ones as the internet has become more and more a part of people’s daily lives and countries around the world are looking to figure out how best to regulate the benefits of the internet without cutting off the opportunity for people to be able to exchange goods, services and ideas. In many ways I think of the internet as sort of like a feel in the 1950’s. There was the invention of the standardized shipping container, those big steel boxes you see in ports. And people tend not to realize it but the shipping container reduced the cost of global trade by 20 or 30%, probably more than any trade agreement that’s ever been signed. And that was because instead of going through loading docks and coming off trucks and onto trains and off trains off to load to a warehouse and through ships and everything else, you can load something into a warehouse and deliver it to the retailer very smoothly and very seamless lessy. That dropped the costs of goods and services around the world significantly. The internet is the equivalent of that standardized shipping container for digital goods, for digital services and for ideas. It makes it seamless and easy for people to connect around the world using standardized protocols that allow an entire new generation of innovation on top of things like TCP IP that has allowed the entire world to connect in really new and interesting ways.

Randy Milch: Your metaphor, the shipping container, is tremendous. It really does bring home the whole notion of the internet as a very, very basic aspect to our lives these days. But the other aspect of the internet is the continual disruption that it brings to almost anything that people hold certain, whether it’s’ a company model or it’s a vision of how government works or anything like that. And you’ve seen it firsthand, the disruption in Silicon Valley. I want to ask, what are the biggest impacts that you’ve seen from the internet revolution as it comes to disrupting accepted norms of doing things?

Kent Walker: The temptation is to focus on the changes that we all experience. The ability to access information around the world, the ability to use a new generation of apps on our phones in new mobile ways which create more convenience. The ability to buy and sell things at lower prices with greater choice. And those are all great and important. But in a sense, a more profound change has been the ability to bring hundreds of millions of people around the world into a global community, to bring them out of extreme poverty. I think the number is 6 or 7 hundred million people in the last 20 or 30 years alone. That’s unprecedented in human history. And one of the biggest contributions of a more globalized internet-oriented economy. Now the challenge of course is that when you’re serving a global population, you create lots of interesting legal tensions between different jurisdictions in which you’re doing business, and that’s important to focus on. When there are conflicts both within and between legal systems, getting that right isn’t always easy.

Randy Milch: The issues that you point out about the global changes that are being affected by the internet raises a sort of series of challenges for those individual countries and what kind of threats do you see arising from that for the internet as it is today?

Kent Walker: Quite a few as you suggest. One is the desire for a new kind of digital sovereignty where each country creates the rules that govern itself and govern the version of the internet platform that it has. The risk of that is kind of balkanization of the internet. If you really can’t have information flowing freely between different countries, you lose the value of global exchange of information and you go back into a notion of a much more limited constricted kind of mini series of internets, country by country; that would be a real loss for everybody. There are legitimate issues, of course, that do cut across boundaries and in most cases, the vast majority of countries align on standards for issues like security, intellectual property, privacy and the like. And where they don’t, we need to work to try and calibrate as much as possible.

Randy Milch: of course, the security question raises the whole issue of encryption and cybersecurity. I know that Google has taken a strong stand on encryption and I think that the mat seems to bear out that there’s really no alternative to strong encryption on the internet to make it a useful product for everyone around the world. But it also raises questions of whether their aspects of the internet as it is – I mean we fear a balkanized internet – But the internet is anonymous. The internet doesn’t have any place where you are. All these things raise the level of potential cybersecurity problems. Should people be thinking about an internet 2.0 or is that a fantasy that will never come about?

Kent Walker: I think the coordinator has actually been extraordinarily robust and we’ve standardized it in many ways. That’s not to say that it won’t evolve over time. IPv6 is an ew generation of names for different sites on the internet, for example, is a way that the internet itself is evolving. But I think the most important part of the internet is this notion of freedom of exchange and of access. So we are concerned with trends that we see, for example, the right to be forgotten ruling coming out of Europe; which we have complied with, but now there are some who are calling for that to be implemented on a global basis so that a request for removal from one country would apply to all countries. And that feels like a race to the bottom because there’s one country’s regulating another, the second wants to regulate the first, and next thing you know, a lot of valuable information falls away from public access and availability. I think that would be a step backwards. So we hope that the richness of the internet continues even as we address very real concerns about security, privacy, and the like.

Randy Milch: How do you see the utilization in some countries of apparently unrelated laws to try to deal with their internet issues? So any trust in some countries that’s been raised and Google has been the focus of some of these efforts in a way to try to – in some respects – de Americanize the internet from the way it is. Do you think these are going to be successful? Do you regard them as significant threats?

Kent Walker: Well, there’s always a balance. If you have new wine, do you put the new wine in new bottles or do you put the new wine in old bottles? And lawyers are used to the notion of trying to take existing laws and adapt them for new technologies. Every time you have a new technology, you probably don’t need a new set of laws to go with it because most existing laws encapsulate a series of principals where there’s broad understanding and you have case law and many years of interpreting them to give good guidance to businesses and to people operating them in the new environment, and that’s in a sense of what’s going on now. I think many around the world are looking at existing antitrust laws and saying do those strike the right balance for new forms of commerce on the net. There are a lot of sound principles that are built up in those generations of learning and refinement. So it would be a shame to throw them away. At the same time, there are some who are saying no, we need a whole new set of laws to deal with this new phenomenon. In some cases, I think are general approach is to say let’s be crisp about identifying the problem. What is it that’s not working and if it’s not working, why isn’t it adequately dealt with under existing law? And in most cases I think the existing laws will probably be found to be robust enough to address any legitimate concerns that are out there.

Randy Milch: You mentioned the right to be forgotten and I want to turn the conversation to the whole question of censorship, because I think we’re in an interesting time here. Google famously disengaged from China for a while and has been on the forefront of the kind of nation state efforts to limit the kind of information available and what I would call open invitations to private parties like the right to be forgotten to do that. Have we seen this? Is this on the rise? Is the nation state aspect on the wain? What can we see in the future? What’s your prognostication of where this is headed?

Kent Walker: I think the best guide to the future is usually the trends coming out of the past. And we were the first company to put out a transparency report which lets everybody see the number of requests we get from governments for removal of content and for information about people who have posted content. We have seen those trends go up over time as the use of the internet has gone up and we’re getting a lot of demands from a lot of different governments. That is to be expected. But the key for us has been to make sure that we are adhering to good standards of due process and procedural regularities. So getting court orders, getting lawfully authorized requests, making sure that things are done by the book. We think ultimately that’s the right way of reconciling in a democratic society. The legitimate law enforcement need for access to information and the legitimate privacy concerns which also need to be protected here. There is obviously a risk that either one of those can fill overboard and frustrate the other.

Randy Milch: Do you think on this right to be forgotten that some enterprising entity will sort of – like a reverse Wikileaks – snap up everything that is alleged and need to be forgotten so it’s available somehow and somewhere?

Kent Walker: The right to be forgotten is actually a little bit of a misnumber. It’s actually a right to be delisted from the search results. One of the unusual things about the right is that the underlying content stays up on the web. It’s not taken down from a newspaper, for example, or the public records where it was originally posted. It just becomes more difficult to find. I’m not sure how this is going to evolve over time. Even different countries within Europe have taken different perspectives on how to best interpret the right, how broadly that scope should reach. Most people agree that shouldn’t apply to doctors who have committed serial malpractice or to people who have preyed on children in the past or things like that. But there are legitimate disputes about how many years after a crime is committed should it be delisted from search results, for example. There are not easy answers for those questions and we continue to work through them as we figure out how to interpret this for a variety of different European countries.

Randy Milch: So it would have to be someone who would run and ersatz search engine to allow people to find it.

Kent Walker: Exactly. There have been efforts to try to index different various requests. Of course, those efforts themselves are processed as personally identified information and could run afoul of European law. So you come back to these jurisdictional questions we talked about earlier as to how legitimate that would be for a company that’s working in Europe as well. And in some degree comes back to the request for a global implication of a right to be forgotten. Because if you can ultimately track down the information, shouldn’t you have to delist it generally even though it continues to be available in the original source material? So it is a tricky question.

Randy Milch: It is a tricky question. One new aspect of censorship though that seems to have arisen with quite a lot of vigor in the last 6 months I’d say is what I can only term as self censorship. You read about in some of the platforms that are ubiquitous – Twitter and Facebook in particular – an effort that seems to be certainly well motivated dealing with ISIS and the horrors of that particular monstrosity. It seems to now to be evolving to sort of being used to decide to take things off of Twitter and take things off of Facebook and perhaps committees built up in these companies to deal with that. How do you regard this turn towards self censorship as opposed to the government imposed censorship that we just talked about?

Kent Walker: Many of these different platforms have had – since their beginning – a variety of different internal policies to deal with challenging content. For Google, we have one approach to search which generally tries to map all the content available on the web with very narrow exceptions as opposed to user generated content on a platform like YouTube where we could always have policies like no pornography, for example, or a variety of other things that were against our sense of what the YouTube community should be about. So that balance is always challenging to pull off because you want to create and maintain a rich, diverse place for new artists and journalists and just everyday people who are looking for a platform to share their experiences. But at the same time you want to avoid hate speech, you want to avoid threats, you want to avoid copyright infringements, you want to avoid porn, et cetera, et cetera. So we have tried to strike that balance. And again, on the search side of the equation, be as strong as we can be in favor of the right to access information, which we believe is a fundamental human right. And then when it comes to hosted content, trying to strike a balance between the material that we think is ultimately useful for the community, we’re drawing that boundary pretty broadly because there’s a whole variety of different things that are on a site like YouTube. Some of those which could be satire or parody or political speech that might – in some countries – be deemed defamatory. But there we have traditionally had a series of policies to limit that. And I think we’re seeing the same with some of the other internet companies driven by some of the concerns about terrorism in part. But it’s the overall industry.

Randy Milch: Do you take a different look at some of these issues of terrorism and utilization of platforms in that way a little different because of your prosecutorial background? Do you think that you’re of a piece with the other GC’s out in Silicon Valley about how they review these things?

Kent Walker: No, I think we’re very much on the same page. In the wake of the Snowden revelations which created a false impression about some of the work that we had been doing and the idea that we had somehow not pushed back against governmental requests or not resourcing appropriate court orders which is not true; we’ve always had a very rigorous process for reviewing requests. We and the other leading technology companies came together in a group called the Reform Government Surveillance Coalition and we have made shared statements on a variety of issues of concern to people who are concerned about overbroad government surveillance but while recognizing that government surveillance is a part of insurance security generally. We actually work together quite well on those issues.

Randy Milch: And where do you think that we’ll end up with these self censorship issues and do you think there’s a slippery slope here? I’ve talked to some of the smaller company GC’s who are really concerned there is a slippery slope and will begin to mimic college campuses where there seems to be a limit on unpopular speech replicated on some of the more popular platform issues. Or do you think this is going to even itself out and not be so much of a problem?

Kent Walker: I think you will ultimately get to a state of equilibrium and there will be different platforms that have different approaches to these issues and that’s how it should be. That’s part of a competitive market. But we come at it from a starting point of being big fans of accessed information, the ability to have free expression around the world, to share and challenge each other’s ideas. And that’s been a driving force behind the popularity of the internet. Not just in the United States but globally. So coming from that standpoint, the fact that there are some policy limitations on certain things that aren’t appropriate for a given platform like YouTube, that’s okay in the same way that a different community forum might have rules on what’s appropriate speech or what crosses the line into hate speech or threats of violence or anything else. So unless you have those standards, you’re actually trying to do that in furtherance of the larger goal of free expression. Even in the United States, obviously generally, the right to fire in a crowded theatre or have other kinds of speech that are so challenging that they cross a certain line. Our job is to make sure that line is as broad as can reasonably be.

Randy Milch: Kent, I want to thank you for spending time with us on In-House Legal. It’s been a hugely informative half hour. Thank you.

Kent Walker:  My pleasure. Glad to talk to you, Randy.

Randy Milch: And I want to thank all of you who’ve listened today to our podcast. For any of you who would like more information on what you’ve heard today, please visit www.LegalTalkNetwork.com, or you can also follow us on iTunes, RSS, Twitter, and Facebook. That brings us to the end of our show. I’m Randy Milch and thank you for listening. Join us again for another great episode of In-House Legal.
Advertiser: The views expressed by the participants of the program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.