In a bid to woo Google, Palo Alto shared confidential utility information

When Google announced in March 2010 its plans to bring ultra-high-speed internet to a few lucky communities, Palo Alto officials literally danced with joy.

The city’s decadelong effort to build Fiber to the Home, a municipal fiber network, had stalled, and officials here, like elsewhere, were pinning their hopes on the Mountain View-based giant to deliver 1-gigabit-per-second internet to all residents and businesses. While they didn’t jump into a frozen lake like the mayor of Duluth, Minnesota, Palo Alto’s managers and Utilities employees boogied to the Village People’s “Y-M-C-A” in a video for Google’s amusement.

Its efforts turned out for naught, as Google chose Kansas City, Missouri, in 2011 to showcase its fiber-optic service. But while Palo Alto’s hopes for fiber fizzled once again, its desire to cooperate with Google did not. Even after Google shifted its sights elsewhere, the city continued to provide the search giant with sensitive, confidential information about the city’s transmission systems, manholes, infrastructure-maintenance plans and properties — at least four times, according to newly released documents.

The first “confidentiality and non-disclosure agreement” that the city and Google Fiber signed on Oct. 17, 2012, and three later non-disclosure agreements, were obtained by the community-organizing group The Partnership for Working Families and labor think tank Working Partnerships USA through public-record requests and published in The Washington Post earlier this week. Palo Alto is one of nine municipalities that provided information in response to the requests (San Jose; Boulder, Colorado; Clarksville, Tennessee; Council Bluffs, Iowa; Lenoir, North Carolina; Midlothian, Texas; Lithia, Georgia; and Dalles, Oregon, are the others).

In surveying the information, the nonprofits focused on Google’s real estate deals in San Jose, where it is planning to build a campus. Working Partnerships USA filed a lawsuit in November alleging that the city had signed “legally questionable NDAs with Google,” according to the group’s statement. These agreements “refused to disclose critical public records while negotiating the sale of huge swaths of public land to the company for a new mega-campus.”

In Palo Alto, by contrast, the non-disclosure agreements focused on technical information pertaining to utilities, including unspecified customer information and GIS data, the reports show. The city had signed at least four non-disclosure agreements with Google — in 2012, 2013, 2014 and 2016 — as part of its effort to partner with the tech giant on a fiber-optic system. The agreement that the city signed in April 2014, a time of particularly intense information sharing, provides for disclosure to Google of confidential information that “could be useful to a person in planning an attack on critical infrastructure.”

Despite these efforts, Palo Alto’s cooperation with Google appeared to net the city little benefit. In July 2016, Google Fiber announced that it would not be building a fiber network in Palo Alto, San Jose, Mountain View or any other municipalities that it had identified as “potential Fiber cities.” The city’s exploration that year of a “co-build” agreement, which called for the city to build a municipal system in parallel with Google’s network, also fizzled.

The documents suggest that throughout the negotiations, the city viewed NDAs as a proper mechanism to ensure that the company would not share or misuse sensitive information. In 2012, the city’s former Chief Information Officer Jonathan Reichental signed an agreement with Google as part of the city’s continuing effort to explore a fiber build-out. The agreement doesn’t indicate exactly what information the city had shared, though it required Google to use a “reasonable degree of care to protect confidential information and to prevent any unauthorized use of disclosure of confidential information.”

At times, Google’s requests for information appeared to have exceeded what was covered in the agreements. In August 2013, Google asked for Geographic Information Systems (GIS) data pertaining to the city’s utility system. Deputy City Attorney Albert Yang suggested that this request was not covered by the 2012 agreement, which Yang noted covered a specific purpose that Reichental was pursuing with Google.

“I’d rather not take the position that the existing NDA can be expanded to the new issue we are dealing with here,” Yang wrote to Josh Wallace of the Utilities Department.

As a result, Google and the city signed an additional NDA related specifically to “Geographic Information Systems (GIS) data maintained by the City of Palo Alto Utilities Department in order to evaluate a potential business transaction.”

The agreement defined “confidential information” as “all information, data, analyses, documents, ideas, records, reports, notes, interpretations, opinions, forecasts and materials provided by the city, in oral, written, electronic, computer-readable, or other tangible or intangible form, whether in draft or final form, whether or not it is labeled, marked or otherwise identified as ‘confidential’ or ‘proprietary information.'”

The following year, as Google expanded further its national fiber program, it listed Palo Alto as a “potential Fiber city.” Seeking to be selected, Palo Alto officials began working on a Google Fiber City Checklist, a packet of details on everything from manhole locations, underground utility routes, streetlights, lot lines, utility poles, pavement conditions and zoning designations.

As part of the process, the city and Google signed another non-disclosure agreement for the purpose of “assessment and provision of a fiber optic network in the city,” according to the document. The agreement included information about transmission-system operations and “critical infrastructure information,” defined by the Federal Energy Regulatory Commission (FERC) to mean “specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure.” This includes “details about the production, generation, transportation, transmission or distribution of energy” that “could be useful to a person in planning an attack on critical infrastructure” and that are “exempt from the mandatory disclosure under the Freedom of Information Act.”

Palo Alto wasn’t the only city working with Google on a document release. In early April, Reichental received an email from his counterpart in Mountain View, Chief Information Officer Roger Jensen. In the past, Jensen wrote, Mountain View “hasn’t released full maps of sensitive infrastructure information such as water lines.”

“We usually only release this information on an as-needed basis, for specific streets or areas. Is PA releasing all of this information to Google? I’m operating under the assumption everything we give them is going to show up on Google Earth,” Jensen wrote.

Reichental had no such qualms, partly because of the non-disclosure agreement.

“We are sharing our non-public information under an NDA,” wrote Reichental, who resigned last year to take a position with Oracle. “This also prohibits use outside of the Google checklist.”

As it awaited Google’s decision on its next batch of “fiber cities,” Palo Alto also began exploring in 2015 a different type of relationship with the company: a “co-build” concept in which the city and Google would consider building parallel networks. Championed by City Councilman Tom DuBois, the concept called for the city to lay its own conduit while telecoms expand theirs. DuBois argued that this was a “critical time” to talk to Google and other telecom companies precisely because they were preparing to make announcements on new projects.

With the City Council backing the co-build model, the city and Google signed yet another non-disclosure agreement in June 2016. Signed by Reichental, former City Manager James Keene and current City Manager Ed Shikada (who was at the time serving as assistant city manager and general manager of utilities), the agreement doesn’t specify exactly what type of information the city would be releasing to Google, though it states that the parties “desire to evaluate, negotiate and possibly enter into a business transaction that would include shared responsibility for construction of a fiber-to-the-premises (FTTP) network in Palo Alto” and includes “utilities customer data” in its definition of “confidential information.”

The new effort prompted an exchange of emails between the city and Google about a potential Master Encroachment Agreement that the city would sign with Google. The effort did not, however, pan out. By late 2016, Google had pivoted away from fiber, apparently deeming a broad expansion too costly. In early 2017, city utilities staff informed the council in a report that Google had advised staff “that they are exploring more innovative ways to deploy their network, which may include implementing wireless technologies.”

DuBois, who now works at Google (he did not in 2015, when the city was considering the co-build), told the Weekly that the council was not briefed on staff’s non-disclosure agreements with Google. He did not, however, see anything wrong with sharing the information.

“The fact that we were applying to be a Google Fiber city was not a secret or confidential,” DuBois told the Weekly in an email. “When building a network, gas lines, sewer pipes, electrical upgrades, etc., it may require sharing details of the location of utilities, which would fall under FERC and need to be kept confidential. I am happy that staff made sure this remained confidential and not public.”

And while it’s not clear what Palo Alto ultimately got out of the arrangement, DuBois said the city’s intention at the time of the agreement was to build out a network.

“In general, I don’t think it should be shared with private companies, except when hired by the city to perform work for city services and such information is needed for safe construction and planning (to prevent digging through gas lines, power, etc.),” DuBois wrote. “Given the scale of a citywide broadband network, it likely would have been necessary to share this information if the build-out happened.”

When asked about Google’s policies for protecting sensitive utility information, a spokesperson for Google Fiber indicated in a statement that the company has followed its agreement with the Palo Alto. The agreement prohibits the company from using the information in any way not related to the fiber effort.

“We’ve complied with the terms of our agreement with the City, which requires us to treat all confidential information as such,” Google Fiber said in a statement.

Even so, the city may soon take action to request that the company delete the data it had provided, given that Palo Alto and Google Fiber are no longer in negotiations.

Claudia Keith, chief communications officer for the city of Palo Alto, told the Weekly that it is “standard practice for the city to enter into non-disclosure agreements when providing third parties with utility information, since there can be security reasons to limit public availability of information on our facilities.” The 2016 agreement, she said, was executed at a time when Palo Alto and other cities were responding to requests for information for Google Fiber.

She also indicated in response to the Weekly’s inquiries that the city will ask Google to return or destroy the sensitive utility information.

“And, while we have no reason to believe there has been any compromising of this information, we will be requesting the return/destruction of materials as per the NDA,” Keith told the Weekly.