Ex-Googler broke Obama’s ethics rules by talking to Googlers — but how couldn’t he?


By browsing through several dozen emails now being posted by a consumer  group, anyone can read for himself the chummy chatter that has been occurring for the past year between a couple of senior Google officers and White House Deputy Chief Technology Officer Andrew McLaughlin, who headed Google’s global public policy unit until assuming his current post in May 2009.

In January, for instance, Google’s vice president and "chief Internet evangelist" Vint Cerf anxiously wrote to McLaughlin about the worsening chances for net neutrality — the notion that Internet Service Providers should be barred from favoring their own content or from offering "fast-lane" services to premium-paying customers. "Has there been so much flack from the Hill that you guys feel a need to back away" from a commitment?, asked Cerf, attaching a CNET article by a well-credentialed business consultant who was advancing that thesis.

"Don’t be silly," McLaughlin responds. "No one’s backed away from anything. … Isn’t… the author of the article, an anti [net neutrality] zealot?"

"Yes, he is," Cerf wrote. "Just wanted to confirm he’s full of biased baloney."

"Absolutely," McLaughlin replied.

On May 10, McLaughlin was reprimanded by the White House Office of Science and Technology Policy for having had several improper email communications with his former employer over the past year (although the exchanges with Cerf, as we’ll see, were not among those criticized). The offending emails violated an ethics pledge President Barack Obama has required high-level appointees to take in order to head-off revolving-door abuses seen in previous administrations, when industry lobbyists seamlessly morphed into government officials who continued to further the interests of their erstwhile clients.

An email to McLaughlin seeking comment was returned by OSTP spokesman Rick Weiss, who provided a prepared statement. "Andrew had a limited number of communications with his former employer on topics within the scope of his official duties," it says. "These communications were incidental and had no influence on policy decisions within the Federal government. But they did violate the President’s Ethics Pledge…. Andrew regrets these violations and has taken steps to ensure they do not occur again."

A Google spokesperson says, "There’s nothing in these communications not reflected in our public comments, public positions, or official communications with the White House."

The episode confirms in spades (or maybe hearts would be the better image) what everyone already suspected: that Google enjoys a very cozy relationship with the White House Office of Science and Technology Policy.

Nevertheless, the emails themselves are, by and large, innocuous. (President Barack Obama’s support for net neutrality has been unambiguous since the campaign.) They say more about the unworkability of the Administration’s internal ethics rules than about the exercise of actual undue influence.

The narrative — which must be amusing to everyone but McLaughlin — began in February, when Google launched its ill-conceived Google Buzz social networking service. Offered as a Facebook-inspired supplement to existing Gmail accounts, it inadvertently compromised the privacy of Gmail users by letting any member of the public identify who a Gmailer was corresponding with. (The design flaw was later addressed.)

One Gmailer burned in this fashion was McLaughlin.  Before McLaughlin could adjust his privacy settings, someone captured his Buzz profile with a screen grab, and a web site called Big Government then posted it in March for the world to scrutinize.

The grabs seemed to be explosive: McLaughlin’s  profile suggested that he was still corresponding with some high-level Google officers in apparent violation of the broad language of the ethics pledge, which bars appointees for two years from participating "in any particular matter…  that is directly and substantially related to [his] former employer." How a deputy chief technology officer could possibly do his job while sequestering himself from involvement in any "particular matter… substantially related to" Google is beyond me, but that’s what the pledge says.

Soon after McLaughlin’s Buzz profile leaked, a group called Consumer Watchdog filed a Freedom of Information Act request for McLaughlin’s emails. They were produced on May 10, and are now available from the group’s site.

The same day OSTP turned over McLaughlin’s emails, its director, John Holdren, sent a blast email to all staff notifying them that an unnamed colleague — identified as McLaughlin on Tuesday by Bloomberg Business Week — had been reprimanded and urging them all to reacquaint themselves with the requirements of both the Obama ethics pledge and, indeed, the Federal Records Act, which, it turns out, McLaughlin had also not been technically complying with. The FRA requires that government employees transfer any business-related messages in their private email accounts to their government email accounts for safe preservation and storage. McLaughlin did so only in early May, a few days before the FOIA request was fulfilled, the posted emails show. In fairness, however, there is nothing furtive about the emails sent to and from McLaughlin’s Gmail account, which were frequently copied to others both inside and outside OSTP at their business addresses.

Most of the several dozen emails produced were either to or from Cerf, who corresponded with McLaughlin almost every week from about July 2009 until January 2010. OSTP takes the position (according to a close reading of the Holdren email to staff and the ethics opinions it links to) that the Cerf emails do not violate the ethics pledge, because they fall into a special exception. Though Cerf was a full-time Google employee when McLaughlin communicated with him, Cerf was also then chairing a federal advisory board committee at the National Institute of Standards Technology, a status that gave McLaughlin the right to speak to him freely. As far as I can tell, few if any of Cerf’s actual exchanges with McLaughlin had anything to do with NIST federal advisory board committee business, at least judging from that committee’s 2009 annual report. (OSTP spokesman Weiss had no comment on my observation.)

What the OSTP’s clever lawyer evidently couldn’t explain away, however, were three collegial email exchanges between McLaughlin and Alan Davidson, Google’s current head of global public policy. These were the basis for McLaughlin’s reprimand. In one, for instance, Davidson sent McLaughlin an agenda for an upcoming roundtable discussion on copyright enforcement issues that included numerous high level Administration officials and the CEOs of all the major media conglomerates, but excluded Google. "Any suggestions on who to grump to about how insanely one-sided this is?" Davidson asks.  (Full disclosure: one of the major media conglomerates invited to that roundtable discussion was Time Warner (TWX), Fortune’s parent company, which may, from time to time, take positions adverse to Google’s on various issues that come before the White House OSTP.)

The FOIA’ed emails show that at least four other Googlers contacted McLaughlin as well over the past year, but in three cases McLaughlin did not reply — at least not by email — and in the remaining case McLaughlin simply turned down an invitation to a September 2009 reception at Google’s D.C. office.

"Thanks," McLaughlin wrote, but "in my new position, I keep a very strict line between myself and Google."

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