In light of its recent settlement with the Federal Trade Commission, Google is strongly defending the legality of its work for the Pentagon, telling the Pentagon’s inspector general that it is all within the limits of its contracts with the federal government.
In a letter to the Pentagon’s inspector general in April, filed this week, Google said its work for the Department of Defense was “fully compliant with all relevant laws and regulations”.
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The Guardian has spoken to two lawyers who handle government contracts who both said that making a legal argument to say its work with the Pentagon is not a violation of its duties was something of a stretch.
“You can certainly see the merit in the argument, but a legitimate definition of the term ‘federal’ and an acceptable application of the word ‘law’ is not simple,” said William Jackson, a law professor at Georgetown University.
“That is where an actual argument between Google and the government or the government and a law firm looks better,” he said.
Clara D’Arrigo, an attorney at Jenner & Block, which represents Google in Washington, declined to comment. Jackson, a former chairman of the Federal Trade Commission’s bureau of competition, said that argument would not stand up to scrutiny.
“It is an argument you could make,” Jackson said. “But the problem is that it’s about rhetoric, not actual argument.”
Google has faced criticisms for some of its contracts since the settlement in March. On Friday, the New York Times reported that Google appeared in a massive trove of documents obtained by the government showing how US companies were bidding to provide parts of the national security apparatus in 2011.
It published an internal email from the defence contractor Cerner to Google complaining about Google’s failure to fully disclose its relationship with the Pentagon. Google had broken a confidentiality agreement, the internal emails showed.
Under the FTC settlement, Google was barred from entering “non-promotional” deals with the government while also being made to publicly disclose any contracts it wins with the Pentagon.
In April, Human Rights Watch called the settlement a “fatal blow” to Google’s ethical standards. The group said that the Pentagon worked directly with the software company that produces the Chinese system of censorship and has pushed the US government to employ Socrata, a data management company, in its intelligence gathering.
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Jackson said Google would not be able to get around that distinction by attempting to have a contract with the Pentagon done differently, like with a janitorial firm or furniture retailer. “The normal way is you just make sure it’s in compliance with what the specific agreement states,” he said.
D’Arrigo told the Guardian in an interview that Google conducted an internal review before signing the FTC settlement and knew its work was “entirely legal”.
To obtain a contract, Google said it must go through a lengthy contracting process with the Department of Defense and register with the Office of Federal Procurement Policy as an authorized prime contractor.
“We’ve done this consistently for years,” the letter said. “Our contracts are fully compliant with all relevant laws and regulations.”
In the letter, D’Arrigo said that it was “likely the Department of Defense (DoD) will not impose any unreasonable restrictions” on the way it employed Google. But that also assumes that the administration does not try to impose restrictions on Google from the centre, Jackson said.
“Once you try to stop anyone from using your technology, whether you’re a company or government, they always come back to you,” he said.