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Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees.

Requests for Client Information

General Rule to Follow

Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for your client’s information are rarely urgent and contemporaneous, i.e. usually they are made through formal channels and you are given time to comply. In such cases, it is only prudent to procure legal representation. Failure to do so could open yourself to liability in the event that you release information when you should not have or if you do not release information when you should have done so. The more difficult situations arise when a police officer or other government official shows up at your business’ lobby, such was the case at the hospital in Salt Lake City, Utah.

Salt Lake City Hospital Nurse Arrest Incident

A Utah nurse was aggressively arrested when an officer claimed she was interfering in an investigation after she refused to let him get a blood sample from an unconscious patient.  The Salt lake City police detective requested a blood sample from an unconscious admitted patient who suffered injuries from a fiery crash. Nurse Alex Wubbles, now famous from her viral arrest video, correctly explained to the the detective that hospital policy (and according to a 2016 Supreme Court case, Birchfield v. North Dakota) barred a blood draw unless the patient is under arrest, or there is a warrant allowing the draw or the patient consents.  

Here is the 30 minute raw video of Officer Payne’s body cam:

Days and weeks after, nurses, hospitals, and rights advocates alike were praising the efforts of Nurse Wubbles’ confident position. She handled an obviously irate detective that seems to have intended to intimidate his way into obtaining a blood sample of an unconscious victim of a car accident, who later passed away from his injuries.

In this instance, the hospital clearly had a written policy for such requests. Even citing the law, the hospital defended its nurse to explain that without a warrant or an arrest, there is no implied consent to draw blood (unlike a breathalyzer, which was also discussed in Birchfield).

What Can We Learn from Nurse Wubbles and her Hospital?

First, it is extremely difficult for any employee, whether executive or operational level, to respond to government official requests–especially live requests from police officers or detectives. This means that employees need training. They need to understand when they have a right to refuse, when they should comply, or how they should do so. Nurse Wubbles handled herself very calmly and only until it was proclaimed that she was being placed under arrest did she show any exclaimed response. For the viewer, the response was a natural consequence to the unlawful arrest. Nurse Wubbles was clearly trained on how to deal with this situation, though the new revised hospital policy has it so that police are not to interact with the nurses but must work directly with department heads for such requests.

Second, the hospital actually had a written policy. You can see in the video that she is referencing specific guidelines on what to do in such circumstances. Hospitals routinely receive such requests, and so it would make sense for them to have such a written policy, but hospitals are not the only common recipient for request of client information.

How Do Data Giants Like Google and AirBnB Handle Data Requests for User’s Data?

Most online companies that store large amount of client data have received data requests from government agencies. It is inevitable that one of your clients will be involved in some criminal investigations or even civil  disputes.  Many of these companies actually post their policies online. For example, Google will email users if their data has been requested by the government, provided that there is no gagging order preventing them in doing so. This would be the difference between the government banging down your door to search your house versus them tapping your phones without knowing. In either case, Google separates how it handles each of their products and their policies parallel with the complexities of constitutional law. For example, for a government agency to gain access to your GMail data, only a subpoena is needed, whereas Google will refuse a data requests for Google Voice without a search warrant (which would require probable cause).

Airbnb also posts its policy to respond to data requests from law enforcements. For example, if there is an emergency request involving the danger of death or serious physical injury to person, law enforcements may email them with “Emergency Disclosure Request” in the subject line. Airbnb is like one of those persons that never answer their phones and prefers to just be texted or emailed. Airbnb specifies that it will comply with all properly served legal requests to the extent permitted by their Terms of Service and Privacy Policy–which also falls in line with current constitutional law. They also notify users (except where prohibited like Google) where a third party requests such data.

Requests for Company Information

General Rule to Follow

Similar to requests for client information, it is extremely difficult to deal with a government request without proper legal counsel. If the request is contemporaneous and you do not have time to contact counsel, understand at least that government agencies need either your consent, a warrant, or probable cause to force compliance. Even in those cases, keep in mind that the compliance is only to the extent the consent, warrant, and probable cause allows (though searches can be expanded in special circumstances). The most important thing to remember is that just because it is a government request, does not mean you are required to comply or counsel may advise you not to comply, such as the case with the request to Google from the Department of Labor.

Google Refuses to Comply with Department of Labor Records Requests

After Google was accused and sued by the Department of Labor for allegedly underpaying women among its 21,000 plus employees, Google refused to produce such salary data. Google said they had done their own internal analysis showing no gender pay gap and gave three explicit reasons for failing to comply (likely at the advice of counsel): (i) the request of the salary data was overbroad; (ii) a violation of its employee’s privacy; and (iii) costly to comply. These reasons seem a little dubious given that having the entire dataset of salary would be necessary for an accurate analysis, the data could be anonymized, and costs for extracting such data for a tech giant should be minimal. Nonetheless, Google maintains that there is no gender gap and if true, Google does have a right to be concerned as such government requests may lead to other issues otherwise not intended.

Transcript:

NASIR: Welcome to Legally Sound Smart Business!
I’m Nasir Pasha.
MATT: And I’m Matt Staub. We’re two attorneys here with Pasha Law, practicing in California, Texas, Illinois, and New York.
NASIR: Yeah, welcome to our podcast. This is where we cover business in the news and add our legal twist – a little lemon twist of legalness to it. This is where you actually get to learn something while enjoying the news of the world and it’s just a great combination. So, you’re welcome!
MATT: That’s how I like to start off most things I do. It’s not even really asking for a compliment. It’s just assuming it’s going to happen.
NASIR: Yeah, it’s just stating fact and acknowledging the service that we provide.
MATT: Hopefully, we can deliver on that promise. We’ll see what happens.
NASIR: The services we’re providing today, we’re going to talk about how your business can respond to government request and I’m talking about anything from a police officer showing up at your door, wanting to get some kind of interview of one of your employees or if they have some kind of data request for your emails that you have for your clients – whatever it is, we’re going to just go A through Z, government requests for information – whether they’re investigating you or maybe even your customers.
MATT: Sure. I think the important thing to remember right off the bat is anything that you’ve see on a TV show or a movie, you can probably just forget that for now because I don’t think that’s necessarily going to be how things – well, I think it’s safe to say, for a lot of legally-related things, especially anything inside the courtroom.
NASIR: I feel like, lately, there’s a move to truism in the sense that they try to make it as real as possible so they do some research on the law. I think, in the past, they used to get away with a lot more. For example, I bet you, if they had a show like ER today, even back then, people were impressed with how much medical terminology they would use but there was a lot of inaccuracies there, too. I bet you, if they did it now, they would have to be much more higher up in their game in actually making it as real as possible.
MATT: yeah, that’s a good point. There’s much more criticism online now so you’d have to deal with that and, as accurate as you can make it, presumably less criticism. Who knows? Anyone that spends their time blogging about the inaccuracies in TV shows, that’s time poorly spent – unless that’s your sole job, I guess.
NASIR: All I know as a quick tangent is that, to tell you how real these shows are getting, especially in the law, I had one of our attorneys actually suggest a strategy based upon a show episode. I think the show was called Power. I’ve never seen that. Or Power Move or something like that.
MATT: Is that the Mark Geragos show?
NASIR: I don’t know. But all I know is he came up with an idea and I’m like, “Oh, where’d you get that idea?” and he’s like, “Well, this last weekend I saw this episode…” I thought that was funny.
MATT: That’s the way for all legal strategy – to watch shows.
NASIR: Exactly.
MATT: Let’s get into what we’re discussing today.
I think the way to look at it, as you alluded to it a little bit, kind of put it in two different groups. You have government requests as a business – your clients’ information – and then, on the other side of it, government requests for your own business’ or your company’s information.
We’re going to start things off on the client side. Obviously, the longer you’re in business, the more likely you are to encounter one of these – dealing with your clients. It’s just the nature of it. Obviously, depending on the industry you’re in as well, you could just operate a business that really you have your clientele is susceptible to certain criminal things – even civil issues – and the government is more inclined to come after them.
I think here’s the thing to keep in mind from kind of a macro level is these government requests, rarely do they need to be responded to immediately. It’s not like the government is going to necessarily be knocking on your door and typically it’s something that’s sent in writing and follow the protocol but I think the first thing to keep in mind is you’re going to get it, you’re going to get a request and you think it’s urgent but don’t necessarily act on it right away. You’re going to want to put some thought into it first.
NASIR: Yeah, usually, they come in a formal request – some kind of writing. It will even usually say, “You have X number of days to provide this documentation,” and that’s a great opportunity to basically reflect on it, talk to your lawyer. I mean, this is one of those things where, when you ask a legal question and the answer is, “Talk to your lawyer,” and people laugh. This is one of those cases.
Every situation is very fact-sensitive. Unless it’s a routine request that you’ve gone through this with your legal team and understand the processes for that, in general, obviously, there’s something in-between, there’s two choices – whether to comply with the request or to not comply with the request. And then, there’s stuff in-between – whether you partially comply or whether you’re going to object to it.
But the point is that, if you comply with a request incorrectly, you may be susceptible to liability with your customers. If you don’t comply with the request, you may be susceptible to liability from the requester – like the government. So, you really have to make a very educated decision on this. It’s not something to be taken lightly. It seems obvious but we have to say it.
MATT: It is. The way I kind of look at it is, if you’re driving down the road and you don’t want to veer off on the shoulder on the left side or the right side – left side being your clients run issues there; right side with the actual government that’s making this request – you’ve got to stay in the middle of the path and make sure what you’re doing is going to be compliant with both of those sides.
Like you and I both said, oftentimes, this is going to be something formal in writing but you’re going to have those instances where a little bit more rare but the government is just going to show up and try to enforce something. I think the perfect example of this was the issue that happened in Salt Lake City. It was a pretty big story in the news but, for those that aren’t aware of it, it’s dealing with a hospital in Utah – like I said, in Salt Lake.
Basically, the police showed up and were seeking a blood sample from an unconscious patient who apparently had been a potential DUI situation. There was a car crash. They were trying to figure this out. What exactly happened? If this person was at fault. The nurse, Alex Wubbels, refused to comply in part citing the hospital policy. The hospital policy actually had something in place how to follow these sorts of requests or these demands. I’m going to say demand. We’ll link the video. It looked more like a demand than a request to me.
Basically, like I said, the police came in and said, “Give us blood samples.” She said no. The police then proceeded to arrest her and wasn’t the best thing for them. When you do watch the video, I don’t want people to think that she was wrong because everybody – except the police at the time – everyone seems to think she was in the right here. From the looks of it, I think she was.
NASIR: Yeah, after this viral video came out, this video actually came out a time after the incident had happened and you can just imagine being the nurse. This video is out there but you haven’t released it yet. But, afterwards, there was this outcry against the police and how they acted and the police department actually acted pretty swiftly, I think, in suspending the officer involved.
By the way, I actually have the – I’m not going to say this is exclusive but we have the actual raw 30-minute video of the bodycam because, most of the time, when you look it up, you just come across that 30-second version which is good and all but, if you’re really interested in seeing how this came out, take a look.
But the fact that this hospital and this nurse understood the correct legal position I think is just remarkable. The reason I say that is because a lot of their position is so up-to-date that it’s based upon a 2016 Supreme Court case. That means the Supreme Court came out with the case in 2016 and, within a year, the hospital implemented a policy to that. To me, it’s unheard of in most of the corporate world to have such a responsive kind of policy so I thought that was pretty neat.
MATT: Right. Just real quick, that Supreme Court case basically saying a blood sample can’t be taken without patient consent or a warrant which, obviously, there is no consent here. The patient was unconscious.
There was also no warrant. But, going back to what you were just saying, I think it’s impressive one two fronts – (1) like you said, the hospital implementing the policy with such a new decision, Supreme Court case decision; and then, (2) this nurse knowing exactly what to do.
It’s basically the analogy is you have a – this is a football analogy so hang with me here – you know, a quarterback goes to a new team. You get a brand-new playbook in the off-season and you have to memorize it. You have to make lots of audibles at the line of scrimmage. You have to know that thing front and back. This nurse, like you were saying, the hospital, they got it correct. They had the policy in place and the nurse knew exactly what to do even when she was completely rattled by the police coming in and then eventually arresting her. I mean, she didn’t give into that sort of pressure either. Hats off to the hospital but I think this nurse comes out as the most impressive in this situation, just knowing exactly what to do in this situation that I’m sure she’d never even practiced.
NASIR: Absolutely. But you can tell that at least this nurse has been trained to respond – maybe not necessarily this specific situation but being able to understand that this is an issue and I have to feel like the Supreme Court case was brief in some parts or at least the policy was brief because it’s pretty specific.
Matt touched on it for a second but I think it’s interesting for some of our listeners. Basically, many states, I think all the states basically have this implied consent law which basically says that, “Hey, if you’re driving, we issue a driver’s license,” there’s this implied consent that you want to make the streets safe by opting into giving a breathalyzer. But then, there were some states that said, “Okay, well, that implied consent also includes blood tests as well. Even if you’re unconscious or if you refuse to do so, we can still get a blood test out of them.” Utah was one of the states, I think – at least North Dakota was. And so, it was a bunch of states that got together and this law was challenged in those states and the Supreme Court said basically, “Look, we get the implied consent for breathalyzer but, when it comes to drawing blood, that’s where we draw the line when it comes to privacy.”
And so, I’m explaining it to you to kind of demonstrate there’s nuance here. This is not straightforward. It takes a lawyer to actually draft the policy and then implement it in very plain, simple language so that it can be implemented from top to bottom so that, when a nurse opens up a policy – not that they can’t understand the nuance but because of these situations – that, okay, I think I remember in the video, she reads off, she’s like, “I can only allow you to take blood if the person is under arrest or you have a warrant. Is he under arrest?” “No.” “Do you have a warrant?” “No.” And then, I saw the video, she called her supervisor. The supervisor basically explains, “It’s not the nurse; this is just our policy and it’s according to the law.” This is where the police gets really agitated and they end up arresting her.
MATT: When you lay it out like that, it’s pretty unbelievable that they arrested her. It just really makes no sense.
Touching on the police, I think they’re probably the profession that need to know the rules in place more than any other job just because not only do they need to know but, if they screw up, it’s obviously a huge deal. Comparing it to the nurse, let’s say she didn’t know this rule in place and just refused because it didn’t sound correct to her, how much you can get control is limited to some extent. With the police, one screw-up and it’s a huge deal. If they do an act they’re not supposed to or fail an act when they should, it’s a huge deal. I don’t want to pile on too much on the police here. They are dealing with a lot but, in this situation, it’s pretty unbelievable that they would arrest her given how it all played out.
NASIR: Actually, what you’re bringing up is a good point. I think I want to touch on some of this when we get to the quest for the company but just because of the police doesn’t mean that they are the authority. They definitely have authority but it’s only to a certain extent. The only way that you’re going to be able to defend the rights of your customers is to actually understand and know what they are, especially if you’re in a contemporaneous situation where you have a police officer knocking on your door like this, understanding the basics at least is important, making sure that your employees understand the basics and are trained accordingly.
If you’re in a hospital setting, this type of situation is foreseeable. If you run a store and let’s say you have security cameras, that’s also foreseeable. What happens when a police officer walks in and wants to look at your cameras, right? What kind of options do you have? It’s important to understand your rights.
MATT: It just makes sense that any sort of written request, that’s going to be easy. You can figure that out, really honing on the training aspect of this with your employees. But, when the cops or whoever do show up to the actual place of business, you really need to have all the procedures in place to make sure you’re going to be on your best behavior and make the right decision to this.
Again, we will move on from the nurse but I think she did handle it as well as she could have. I don’t know how she really could have done anything differently, I think. It was just right place, wrong time – I was going to say, “Wrong place, wrong time,” because that’s the phrase but she was in the right place.
NASIR: Unless she was there when she wasn’t scheduled. I’m sure it was the right time, too.
Anyway, just to wrap this up, a couple of things that we can learn from this is that they had a policy, the nurse was well-trained with it, and it was the right thing to do. But, even then – just to be hyper, hypercritical – at one point, the officer said that she was under arrest and there was a tad of resisting there. She should have complied at that point because the general rule is – whether you’re in a hospital setting or not – unless they have a warrant or probable cause or you give them your consent, they don’t have the right to search. That’s general. There are a lot of nuances to that.
But, just because they think they have that and even if they don’t, you still should comply with a police officer’s direction. If they are forcing themselves in your premises or they’re restraining you physically, you still have to comply. Otherwise, it can open up to more issues.
The only kind of hypercritical thing that I would tell the nurse or as a training video is that the nurse did the right thing but stating the company’s position. But, the moment she was told that she was under arrest, she should comply with those directions.
MATT: Obviously, she was in a tough situation but, if I had to assume what she was thinking or what was going through her head, she probably had two big concerns.
One, “I don’t want to do something that I know I’m not supposed to do in terms of with my employer meaning I know what the policy is and I should be following it. I don’t want to not follow it and be disciplined for my employer. Obviously, that’s a concern but, if the employer takes an adverse employment action against her, it’ll be fine for her at the end of the day.
Two, she was probably thinking, “Well, I don’t want them to be able to draw blood from this individual when they’re not legally allowed to.” I’m thinking of it now, it’s easy. Let’s say they would have been able to draw blood, it wouldn’t have been usable. She’s probably not thinking about that at the time while this is going through. Again, I think she handled it well but, you know, like you said, at the end of the day…
NASIR: She was put in a tough position. Frankly, she acted naturally. I mean, I’m here, sitting here, criticizing this but just as a learning tool – not her as an individual because, frankly, she reacted how anyone would react on being arrested unjustly.
MATT: Yeah, I think you kind of led in a good spot here in terms of if there is consent or a warrant or probable cause and compliance there. Touching on that there, when there’s a request for data, your customer or client data, to me, there’s kind of varying levels of what’s requested and what’s legally required in order to make these requests.
For all businesses, it starts off with your own terms and conditions and your own privacy policy – at least when we’re talking about data. I mean, what’s contained in there – and I know we’ve said this a million times before – the important thing with those terms of service and the privacy policy is, if – and, if you have to, obviously – you had those policies in place, you need to follow them. I mean, I know it sounds stupid but we say this all the time and you’d be surprised how many companies don’t follow their own terms of service and privacy policy.
NASIR: The main reason for that is they either copied and pasted or even had their lawyer do it for them and they didn’t really communicate what they wanted in there with their terms of service. And so, they didn’t even know what was in it and so they don’t follow it.
MATT: That’s something for businesses to consider once they get this request for data.
Two, you’ve got to look at what exactly is being requested. In terms of what’s being requested, is the government that’s acting have the legal necessity or legal requirement to request this information. I’m talking about a few different levels – if there is a subpoena or a court order, obviously, the most serious and the most broad being a search warrant. You touched on that a little bit earlier. Obviously, if there is a search warrant and the police show up, it’s a whole different ballgame. But, you know, kind of those lower levels, when there are these requests, sometimes, it still is required that there be a subpoena or a court order in order to hand over some certain information.
NASIR: Yeah.
For most companies, data requests are going to be the most common – unless you run a hospital or something similar. You’re not going to have these kinds of contemporaneous requests from police officers.
Most of the times, they’re going to say, “Hey! You have some kind of data you have of your customers and so we want that.” And so, a couple of good examples are Google and Airbnb. Every company that has a lot of data has dealt with this issue. In fact, most of them – especially these big tech giants or data giants – actually post their policies online so we know exactly – or at least what we’re being told – of how the Googles of the world and Airbnb handle data requests.
For example, Matt was kind of talking about how there’s differences between the subpoena and a search warrant just to kind of give you an understanding of how nuanced this thing is when it comes to constitutional law. If, for Gmail, Google will comply with a subpoena but, for Google Voice which is basically a voice-over-IP service from Google, in order to comply with a Google Voice request, Google will require and an actual warrant which is a much higher level of scrutiny and actually requires for someone to show a judge that there’s probable cause.
And so, how’s a non-attorney or a layman supposed to make the decision? It doesn’t work that way. You have to have your attorney review it, have written policies down internally and sometimes you have to have it externally too to let your customers know because, in some instances, Google will actually tell or email the users, “Hey, your data is being sent to the government,” but, most of the time, that doesn’t happen because there’ll be some kind of gag order because, obviously, the government agency is not going to want to tell you that they have actually looked into your data.
MATT: Yeah, and you mentioned Airbnb and I think they’re a nice case study for this, too. They have a few varying levels. I think everyone knows what Airbnb is but, for those who don’t, it’s like you can rent somebody’s house or condo for a day or for however long. So, they have emergency requests. If they believe that a danger of death or serious physical injury, the law enforcement agents may make this emergency disclosure request to them. That’s kind of the most pressing issue. And then, in terms of the data side of things, for non-emergency information requests, a valid trial of grand jury or administrative subpoena is required to compel the disclosure of basic subscriber records.
Like you were just saying with Google, that’s kind of that lower level threshold there. A court order required to compel the disclosure of other records pertaining to an account not including the contents of communications. And then, for the content of communications, a search warrant is required. It’s similar to Google, like you were just saying. But Airbnb lays these out very clearly. That’s why I said it’s a great case study. It’s a good example to go off of. I don’t think they call it their terms of service.
NASIR: It’s just some kind of policy.
MATT: Right. Also, they have a section for how they notify. I mean, they basically say, “Look, we have a policy of using commercially reasonable efforts to notify users in the US when we receive legal process from a third party requesting user data.”
I think they’ve done a pretty nice job in maintaining both sides of this – complying but, at the same time, making sure that the government is correctly requesting whatever data they’re requesting.
NASIR: I did think it was funny though you saw how you’re supposed to make an emergency disclosure request. In the case of an emergency – and they define it as involving danger or death or serious physical injury – law enforcement may email them with “Emergency Disclosure Request” in the subject line. It’s like, “Don’t bother calling us. If it’s an emergency, the best way to contact us is through email.”
MATT: Yeah, I hope and assume that email is monitored 24/7/365. I’m sure a good amount of those requests – not good but at least some of them – are not actually emergencies. If you’ve ever heard like the 911, some 911 calls of what’s an emergency and what’s not, I mean, I’m sure they’ve not all that pressing. But, yeah, you make a good point.
NASIR: But, yeah, I agree that Airbnb is a good example. They’ll basically disclose to the user if they can, just like Google will, and I think that’s good practice. If you have government requests, unless you have any terms and conditions, there’s nothing obligating you to tell your customer that the IRS just requested some computer records or whatever. But, if you have that as your terms, then you may be required to do so and I think that’s good practice.
MATT: Yeah, and if you’ve ever looked at contracts where there’s confidential information that’s being disclosed as well, you’ll notice that sometimes there’s provisions in there about this information has to remain confidential but there’s some exceptions – one of which is usually something along the lines of what we’ve been talking about here – government requests. The good agreements will have something in there stating that, before providing whatever information is being demanded or requested, you have the obligation to notify the other side – the side that produces confidential information prior to disclosing it to whatever third party.
NASIR: Unless you’re prohibited to. I think that’s a great example of that.
MATT: Yeah.
NASIR: For sure.
MATT: So, we’ve covered, so far, our requests that have to deal with, as a business, your clients’ information. But what about the situations where the requests are actually for your own information of your own company? it changes a little bit and I’m sure the way you kind of handle it changes a little bit, too – you, as the business owner.
NASIR: I almost feel this is easier because it’s one of those things where, if you’re responsible for someone else’s information, then it’s a lot harder to deal with. But, if it’s your information and it’s your defending, then I feel like it’s a little more straightforward. I think just as critical and I think the rules are pretty much the same.
I was thinking about this earlier. I think the important thing to remember is that, when it comes to authority and different government organizations, I agree we should have some reverence to them but be careful because, sometimes, they’ll come at you in a way that is very innocent when it’s not really and I’ve seen clients get fooled many times over by volunteering information more than what they are required to do and it just gets them into trouble. It’s like, “Oh, well, they’re asking for this information or they want to do an audit so let’s just give them everything.” That’s not exactly how you deal with. There’s always reasons why you should just be careful and a good example is just look at how Google refuses to comply with the Department of Labor. They were sued by the Department of Labor early this year for basically gender discrimination, for having salary gaps in their salaries.
MATT: Basically, this request or demand was made by the Department of Labor to turn over the salary data for the employees here. Google just said, “Look, we’re not going to do that.” And so, the Department of Labor tried to compel the disclosure. Ultimately, Google’s argument was, “Look, we’re not going to comply because the request is overbroad because it’s violating the employee’s privacy rights and it’s too costly.”
The interesting thing was a judge agreed with that. I’m not sure exactly how much – I have my own opinions on some of these – I don’t know how costly it would be, honestly, for Google to comply with this or what-have-you but I think this is an important point. Like you were just saying, just because this request is made, don’t just comply with it. obviously, if you’re not going to comply, you have to have a legally sound reason to do so.
You can’t just say no unless you want to go to court and potentially lose. But the way I look at is this – what I compare it to is – if you’re in a trial and you have your main witness and you’re preparing them for the cross-examination, you tell them, “Unless I’m objecting, only answer the questions that are asked. Don’t answer anything else.” At best, it’s a neutral. At worst, you’re disclosing something that maybe you don’t think it’s a big deal but it could end up being a huge deal and you just don’t even realize it.
NASIR: Yeah, very common issue. Let’s just look at this Google thing again. Let’s assume what they’re saying is true – and I think that’s fair to assume – that they say that they looked into this data internally and they have 21,000-plus employees and we looked at all our data and we can’t find a gender gap. It’s not there. But the Department of Labor is suing them for that meaning that they want to show liability that, “Yeah, there is a gender gap and we want to prove it by just looking at all your data. Give it to us.”
MATT: Yeah.
NASIR: From Google’s perspective, “Look, this is just a fishing expedition. Your requests are overbroad. It’s going to take us a bunch of time to do it. It’s going to expose the privacy rights of our employees and you’re going to end up finding out that there’s no gender gap anyway. Or you’re going to kind of construe the data in your favor. Or you’re going to find something else to try to incriminate us for. What is our incentive to comply with your request? If we can legally defend and oppose your request, why not?” This is just a matter of protecting your own interest and rights.
I’ve seen many times, government investigations, it starts as a routine audit and it just bellows from there into something much more into fraud, into this, sometimes, it’s not the companies and the people behind it have good intentions but they make mistakes and why would you expose those mistakes outwardly to these government requests when you don’t have to?
MATT: Right, I think you nailed that. You think you’re trying to do the right thing or a good thing and comply but it could be compromising you down the road and you just don’t even realize it. I know we don’t talk about too much tax stuff but it’s the same if you’re getting audited by the IRS. I’ve seen situation where somebody is getting audited for one thing and the IRS, if all the information is provided to them, it opens up another door and another line of liability there. It could have been prevented by only providing whatever information was needed just like in this case. Again, I’m not comparing the two saying, “Don’t comply with the IRS.” But it’s the same with this, too.
Just make sure you have the legal counsel there and they’ll guide you into, if you need to comply and, if you do, how to go about it and what really needs to be turned over.
NASIR: Yeah, I think that’s a clear distinction we should make. You have to comply with every lawful request. What we’re saying is that not all requests are lawful. In order to determine whether it’s lawful or unlawful, frankly, you need a pretty decent attorney to help you through that process. I’m talking about not all attorneys are the same in this sense that you may need a criminal law attorney, you may need an administrative law attorney that is familiar with that particular agency – whether it’s in healthcare or in tax. In other words, a criminal attorney is not going to be able to help you with an IRS audit – well, most aren’t. So, having the right attorney and the right tool for the job is also extremely important as well.
MATT: I think that’s kind of the connection between the two different groups we talked about in terms of requests for client information and requests for your own company’s information. Have the correct legal counsel there. Have the plan in place. From there, it’s just execution.
NASIR: All right. Well, I think that’s it.
Well, thanks for joining us and that’s our podcast for now.
I think our next episode will be in a few weeks from now.
MATT: Yeah.
As always, keep it sound and keep it smart.

 

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