Google general counsel emerges as public face of tech giant's legal team

2 October 2023
By Mike Swift

Halimah DeLaine Prado, Google’s general counsel, presides over an in-house law firm of about 1,400 lawyers and legal professionals, the group charged with defending the 25-year-old Internet giant at what is arguably its greatest moment of legal jeopardy.

As DeLaine Prado stepped into a conference room in Mountain View, California, to speak with MLex recently, a federal judge in Washington, DC, was deep into an antitrust trial over the US Department of Justice’s claims that Google illegally extended its search monopoly. As Google marks its milestone birthday this fall, additional antitrust and privacy trials loom in the next six months over two other crown jewels of its business — the Android app store, and the Chrome browser’s ability to gather personal data to target ads.

Yet Google’s top lawyer doesn't project the ethos of a battlefield general. Even at a time when the company is facing determined, activist regulators in Washington and Brussels and — at least in the US — the threat of court-ordered changes to its core business, the leader of Google’s legal armada never uttered a verb about conflict or deployed a single metaphor about war during an extended conversation with MLex.

Asked about the consensus at a recent conference for Silicon Valley general counsel at the Stanford University law school that the tech industry is facing the most hostile regulatory climate in memory, DeLaine Prado deftly pivoted, while acknowledging Google is in a “new era” of regulatory scrutiny.

“I'm a cautious optimist, so I'm gonna spin your question a little bit differently,” she said. “I actually think it's the most active regulatory climate, in part because from a technological standpoint, it's been the most active on a technical space in my lifetime.”

Even since DeLaine Prado joined Google in 2006, what she described as the “breakneck” progress of technology introduced the smartphone and mobile apps, spawning the gig economy as it put the Internet in people’s palms. Technology has been woven ever more tightly into the lives of adults and children, a reality DeLaine Prado said means that regulators will inevitably bring more scrutiny.

Now, as Google moves to connect its Bard artificial intelligence platform into existing services like Gmail and Drive, DeLaine Prado says Google is eager to involve regulators at the front end of what appears to be that next transformative technology, in what she described as “a robust regulatory dialogue” over artificial intelligence and other emerging technology.

“When you have a broad, sweeping, incredibly impactful technology — like AI — AI is too important not to regulate. But it's also too important not to regulate well,” she said. “We have supported governments to come in and actually really take a look at responsible ways in which to protect their consumers with the technology that is sort of shifting in their daily lives and how to accomplish that.”

Trusted Advisor

DeLaine Prado has now spent nearly 17 years at Google and nearly four as general counsel, starting out as product counsel working on Google ads and other products. Product counsel is a role Google innovated to be “a mini-general counsel,” she said — a person responsible for a specific Google software product such as Gmail who partners with the product manager of that product, understanding the nitty-gritty of the technology and the business goals of the product, charged with making it legally possible for the product to achieve those goals.

When DeLaine Prado joined Google, it had fewer than 200 lawyers and its general and administrative spending, the sector that encompasses Google’s legal and regulatory costs, was $752 million. Last year, Google spent $15.7 billion on its general and administrative category (Google parent Alphabet doesn't break out specific legal costs in its financial reporting).

Yet Google’s revenue has mushroomed so much over those 17 years that even with the 21-fold jump in legal and other general and administrative costs, that spending as a share of Google’s total revenue — about 6 percent in 2022 — has dropped since 2006. That bolsters DeLaine Prado’s view that she runs “a fairly lean legal team, if you actually consider the scope and reach of the products and services that we offer right now.”

The general-and-administrative category also includes fines such as the 1.49 billion euro ($1.58 billion) antitrust penalty Google received from the European Commission in 2019 for abusing its power in online advertising. That general and administrative expenses declined from 7.1 percent of revenue when DeLaine Prado joined the company in 2006 to 6 percent in 2022 gives ammunition to critics who argue that financial penalties alone, even multi-billion-dollar ones, have little significant impact on the business of tech giants such as Google and Meta Platforms.

For many years, Kent Walker, president of global affairs at Google, has been the legal face of the search and advertising giant. But DeLaine Prado, who has been a central player in Google’s efforts to preserve the legal immunity of social media platforms such as YouTube under Section 230 of the Communications Decency Act, is emerging into public view. The US Supreme Court in May left the Section 230 umbrella intact in a case involving YouTube, and in another potential win for Google and other tech giants, the justices agreed Friday to consider whether social media content-moderation laws passed by Texas and Florida violate free speech protections in the First Amendment of the US Constitution.

Walker, who’s worked with DeLaine Prado for 17 years, told MLex she's a “thoughtful leader who inspires her team” and a “trusted advisor” across the company. “Her grounding in First Amendment law helped guide us through the Gonzalez case and she's brought a deep understanding of our products to her role as General Counsel,” Walker said, referring to the May Supreme Court case.

DeLaine Prado chuckled when asked why she stayed at Google for well over a decade. “I’ve not been bored. It's impossible,” she said. “From working as a product counsel in 2006 on a product then called 'ads,' to being its general counsel now, I have been able to witness just a mind-boggling growth of technology expansion and the way that tech touches people's lives.”

With the ongoing antitrust trial in Washington over Google’s dominance in search, a trial in San Francisco set to begin in November on Epic Games' and Match Group’s claims that Google monopolized the Android app ecosystem through its contracts with smartphone makers and its Play Store policies, and a trial scheduled in Oakland, California, in January on claims Google illegally collected personal data through the “Incognito” private browsing mode in Chrome, DeLaine Prado and Google’s Global Affairs team are now defending against litigation that for the first time could meaningfully change its business practices.

But the general counsel says the aggressive antitrust and privacy enforcement and litigation in the US, Europe and elsewhere has not changed how Google weighs regulatory risk.

“I don't think it's actually changed our thinking, to be honest with you. I think we've always known that with any sort of new technology, any sort of innovation, there's going to be questions, there's going to be concerns,” she said.

In Europe, tech companies including Google are increasingly facing class action-style data protection litigation in the Netherlands that's seen as a precursor to an EU-wide increase in litigation because of a new EU law facilitating mass consumer claims. DeLaine Prado flicked away a question about whether she's “worried” about a surge of litigation in the EU, saying Google’s “privacy-by-design” approach to its products will enable it to defend itself anywhere.

“I think litigation for a global company is pretty standard. So, the proliferation of it in one region versus another just is a question of focus, to be honest,” she said. “Worried about it? No. Prepared? Yes.”

Internal law firm

DeLaine Prado describes her job as general counsel as running a multi-disciplinary law firm within Google.

“There's a bit of air traffic control involved in part because you have multiple teams with different specialties," she said. "It's not just the litigators who defend the company or the patent attorneys who patent cutting edge technology, but there's also attorneys and legal professionals that help advise the business on how to launch a new product in a particular country, globally, or what have you and so there's a lot of advice and counseling as well.”

Another function of that in-house law firm is searching out suits Google can file that will produce court precedents that the company says can benefit users and the business.

“We have a whole host of litigators as well who are there not just to defend the company when we're sued, but to actually look for opportunities where we can proactively shape the law,” she said. “So areas in which we can protect our consumers, we might proactively go after sort of a, you know, 'cyber malfeasant,' if you will, that's looking to kind of bilk senior citizens out of fake puppy ads, to actually sort of disseminating malware. And so we look for opportunities not just to defend ourselves, but to actually shape and help protect our consumers.”

As regulators plunge into AI, Google’s top lawyer said they need to be aware that there might be “unintended consequences” in the trade-off between privacy and competition law. DeLaine Prado argues there's no sign of a competition problem in AI.

“At least within the AI space within the past year, competition is rife – right? — it's vibrant,” she said. “I think [regulators] are sort of trying to grapple with  . . .  this notion of wanting to solve a competition problem, if you will, when in fact, I think the opportunities and the drive for companies of all shapes and sizes to have a toehold in the AI space to create meaningful change for individuals, it’s probably never been more robust.”

Notice and Choice

Regulators such as the US Federal Trade Commission are intent on looking for both antitrust and privacy problems around AI and believe there's a risk of both happening if big companies such as Google and Microsoft use the large datasets they hold as a barrier to entry for smaller competitors. In a recent interview with MLex, the FTC’s top consumer protection official, Samuel Levine, called “notice and choice,” the foundational privacy standard for US regulators during the first two decades of the commercial Internet, a regime that is “failing”.

DeLaine Prado has a different take. “I don't think it's a failed regime, but I do think it should not be the sole basis upon which we think of privacy protection,” she said. “What do I mean by that? You need more. Technology is complicated. And so, to keep up with the complication of the innovations that are coming in, day by day by day, we have sort of pushed through our proposal of thinking through this more in terms of privacy preserving technologies.”

She said Google’s lawyers and engineers have developed a system where they continually ask themselves questions about how much data a product needs to collect, how long the data needs to be held, and whether the data needs to be personally identifiable to make the product work. Those questions are asked as a product is developed, and the answers are stored so Google is ready to respond when regulators come knocking.

That record “also is a way, I think most importantly, of holding companies accountable for the products they are putting out in the world,” she said.

The securities filings of Google, Meta and scores of other ad companies make clear that they are facing something of an existential crisis as Europe’s General Data Protection Regulation, the California Privacy Rights Act and rules in other jurisdictions increasingly pressure the companies’ advertising life-blood — dossiers of consumer data used to target them with ads.

DeLaine Prado argues there is a future for targeted ads if it factors users’ privacy wishes in at the start. “That's a notion that is clear with our product managers, as well as with, say, our product counsel and lawyers who are advising the teams and launching new types of ad features,” she said.

Google’s “Privacy Sandbox” initiative, she said, is trying to maintain the value of digital ads while reducing cross-website and app tracking of consumers.

“What I’d like to see is the rest of the industry also equally lean into that,” she said. “I think that is harder to do. It takes a lift. But I think that the future of advertising sort of depends on more of an industry move to more privacy-preserving technologies writ large. If not, it's a little bit of a race to the bottom to try to sort of use whatever kind of Dark Web pattern that yields you the most result.”

Google is trying to nudge the industry in that direction, and the “cautious optimist,” who Walker has described to journalists as Google’s “quiet diplomat,” claims it’s possible. “I actually do think we can sort of bring the industry along to a better place over time,” DeLaine Prado said.

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