Google Files Legal Challenge To Attorney General Jim Hood's Subpoenas

from the well,-well dept

This story sure escalated in a hurry. Following all the news of the MPAA’s tight relationship with Mississippi Attorney General Jim Hood, Google has made a filing in a Mississippi federal court seeking seeking a temporary restraining order and an injunction against Hood’s investigation. As the filing notes:

For the last eighteen months, the Mississippi Attorney General has threatened to prosecute, sue, or investigate Google unless it agrees to block from its search engine, YouTube video-sharing site, and advertising systems, third-party content (i.e., websites, videos, or ads not created by Google) that the Attorney General deems objectionable. When Google did not agree to his demands, the Attorney General retaliated, issuing an enormously burdensome subpoena and asserting that he now has ?reasonable grounds to believe? that Google has engaged in ?deceptive? or ?unfair? trade practice under the Mississippi Consumer Protection Act (MCPA), which allows for both civil and criminal sanctions. The Attorney General did so despite having publicly acknowledged in a letter to Congressional leaders that ?federal law prevents State and local law enforcement agencies from prosecuting? Internet platforms. The Attorney General took these actions following a sustained lobbying effort from the Motion Picture Association of America.

As Google explains, there is no legal basis for this investigation:

First, Section 230 of the Communications Decency Act (?CDA?) precludes state regulation of Google based upon the third-party content available on its services or the manner in which Google moderates that content. ?Congress provided broad immunity under the CDA to Web-based service providers for all claims stemming from their publication of information created by third parties.? Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

Second, the First Amendment protects Google?s organization and display of third-party information (e.g., search results), prohibits retaliation for how it organizes and displays such content, and bars state action that limits public access to constitutionally-protected speech. As multiple courts have found, the state can no more tell a search engine what results to publish than it can tell a newspaper what editorials to run. See, e.g., Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 436, 438 (S.D.N.Y. 2014). Nor can the state ?encourag[e] the suppression of speech in a manner which can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official?s request.? Zieper v. Metzinger, 474 F.3d 60, 65-66 (2d Cir. 2007) (internal quotation marks omitted).

Third, the subpoena violates the Fourth Amendment by demanding information about conduct that is plainly lawful. ?[I]nvestigations premised solely upon legal activity are the very type of ?fishing expeditions? that? the Supreme Court has held violate the Fourth Amendment and ?do[] not pass muster under any standard.? Major League Baseball v. Crist, 331 F.3d 1177, 1187-88 (11th Cir. 2003) (citations omitted).

Fourth, much of the Attorney General?s subpoena is preempted by the Copyright Act or the Food, Drug and Cosmetics Act (?FDCA?). Many of the Attorney General?s inquiries concern copyright infringement?but copyright is exclusively a matter of federal law, which the Attorney General may not enforce and with which Google fully complies. See GlobeRanger Corp. v. Software AG, 691 F.3d 702, 705-06 (5th Cir. 2012). Similarly, the Subpoena seeks information about Google?s practices ten years ago with regard to advertisements relating to the importation of prescription drugs. But the FDCA regulates importation of prescription drugs and preempts enforcement actions not brought ?by and in the name of the United States.? 21 U.S.C. § 337. omitted).

In short, Jim Hood is on a massive fishing expedition over things he doesn’t understand, over which he has no jurisdiction, for issues where Google fully complies with the law. The filing further notes that, yes, there is bad content on the internet, but that Google actually is extraordinarily active in pushing it down in its search results and seeking to stop people from accessing that content. But, its voluntary efforts are very different from being required to change its search results via an order from a government official:

But if a state Attorney General can punish, irrespective of well-established federal law, any search engine or video-sharing platform whenever he finds third-party content he deems objectionable, search engines and video-sharing platforms cannot operate in their current form. They would instead have to pre-screen the trillions of websites and millions of videos on the Internet, blocking anything they had not yet reviewed from being publicly accessible so as to avoid the ire of even a single state or local regulator. This would ?severely restrict the information available on the Internet,? Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003), precisely the opposite of the ?unfettered? Internet the CDA and the First Amendment protect. The Attorney General may prefer a pre-filtered Internet?but the Constitution and Congress have denied him the authority to mandate it.

Google further lists out the various threats and statements Hood has made:

In several letters to Google, the Attorney General has falsely accused it of, among other things, ?aiding and abetting? and even ?encourag[ing] . . . illegal activity.? Id. Ex. 5 at 3. He has characterized Google as an ?accessory before the fact? in criminal conduct, id. Ex. 2 at 1, asserted it has ?no corporate conscience for the safety of its customers,? id. Ex. 17 at 1, and claimed that Google ?facilitates and profits from numerous illegal online activities,? id. Ex. 17 at 2. See also id. Ex. 15 at 3 (page 1 of the draft letter). He has threatened to ?take legal action to change [Google?s] behavior,? id. Ex. 2 at 3, outlining ?[p]ossible [c]auses of [a]ction? against Google in a presentation to the National Association of Attorneys General (?NAAG?), id. Ex. 10 at 53-57, sending numerous requests for information, see, e.g., id. Exs. 1, 5, & 22, and a broad litigation hold notice, id. Ex. 8. The Attorney General has demanded in several meetings that Google pre-screen or block third-party content and search results that merely may involve illegal activity, even at the cost of burdening lawful, protected speech. See, e.g., id. Ex. 2 at 2; id. Ex. 22 at 2; id. Ex. 27 at 5:13-6:24, 7:16-8:14. He has even sought a ?24-hour link through which attorneys general[]? can request that links to particular websites be removed from search results ?within hours,? presumably without judicial review or an opportunity for operators of the target websites to be heard. Id. Ex. 5 at 3.

That last one is crazy. Hood is flat out demanding a tool for government officials to censor the internet, based solely on those officials’ requests.

The Attorney General has cited no evidence at all of misconduct by Google to back up these inflammatory allegations. He has instead identified a handful of web pages among the trillions reflected in Google?s index, and a smattering of videos amongst the millions of hours watched every month on YouTube, and asserted that some of the content of those websites and videos (all created by third parties) is unlawful…. He has noted that advertising occasionally appears alongside the videos about which he complains…. And he has criticized some of Autocomplete?s algorithmically-generated predictions.

Whatever that says about the actions of those who created and developed the content about which the Attorney General complains, it in no way implies that Google has violated the law. Given the vast quantity of third-party content available on the Internet, it is no surprise that some small percentage of the information found via Search or posted on YouTube is inappropriate or unlawful. Statutes such as the CDA and DMCA accept the inevitability of problematic content online as the cost of a free and open Internet, and squarely immunize Google and other interactive service providers from liability arising from such third-party content.

Furthermore, Google debunks the notion that it has done nothing to deal with such sites:

Nevertheless, Google has worked to address the Attorney General?s concerns…. In response to his questions, Google provided over one-hundred pages of written answers detailing its policies and practices for voluntarily combating abuse across its services, and voluntary shared nearly 100,000 pages of supporting documents. YouTube engineers even created a custom reporting tool and trained the Attorney General?s office on how to use it so that they could report for expedited review and possible removal videos they deemed objectionable…. To date, over half a year later, the Attorney General has used this tool to report only seven videos…. Nor, to the best of Google?s knowledge, has the Attorney General filed any legal action against any of the actual creators of the specific underlying content to which he has objected. Google has also explained the applicability of CDA immunity and the DMCA safe-harbor provisions to services like Google, as well as the constitutional concerns raised by his demands

That part I bolded is the key. It shows the reality of the situation, which is that Hood isn’t really trying to stop bad content online, no matter how many times he argues otherwise — he’s just attacking Google.

There’s much more in the filing, including arguing that Hood is violating the First Amendment directly in his most recent subpoena to Google:

The Attorney General has made clear that he disagrees with how Google exercises editorial judgment in the composition of its search results and YouTube content, and wishes to force Google to adopt editorial judgments that he would prefer. For content he disfavors, he asks that Google censor from search results links to websites that are readily available on the Internet, regardless of whether any court has found them unlawful, and has even gone so far as to demand that certain search terms themselves be banned…. The Attorney General has also demanded that links to disfavored content be demoted in search rankings and marked with a warning to users…. Conversely, he has asked Google to promote favored content (e.g., Hollywoodapproved websites) by raising its standing in search results and indicating its favored status with an icon…. Such demands by a government official to displace a private party?s editorial judgment in order to favor certain speech or speakers over others strike at the heart of the First Amendment.

And, of course, just because some of the content targeted may not be protected, that doesn’t relieve the First Amendment problems:

State enforcement actions targeting unprotected speech can violate the First Amendment by limiting the ?public?s access to constitutionally protected matter.? Smith v. People of California, 361 U.S. 147, 153 (1959). A state may not penalize a bookseller for unknowingly offering obscene material because he would then ?tend to restrict the books he sells to those he has inspected,? and the limits on his ability to inspect content would ?tend to restrict the public?s access to [content] which the State could not constitutionally suppress directly.? …. Similarly, a state may not sanction a magazine for unknowingly publishing unlawful advertisements because ?publishers cannot practicably be expected to investigate each of their advertisers,? and the risk of sanction could lead a publisher to reject advertisements that ?could conceivably be deemed objectionable by the [government],? which would deprive the public of access to protected speech, and the potential advertisers an ?avenue of access to the public.? MANual Enters., Inc. v. Day, 370 U.S. 478, 493 (1962).

There’s a lot more in there, but those are some of the high points. Hood has been provoking Google (at the behest of the MPAA and others) for a long time. It appears that Google has hit back.

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Companies: google, mpaa

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Comments on “Google Files Legal Challenge To Attorney General Jim Hood's Subpoenas”

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51 Comments
a tired citizen says:

Re: enough

This is not the first time Attorney Hood has used deep pockets to flex his authority. He won his position by wrongfully conviting Marlon Howell of muder with false information and destroying evidence. Yet these kind of people continue to get away with it. When is enough ever enough? Simply put, “money is the power and f–k the little people!” Google should hold him responsible, because Mississippi is still the #1 racist state, and who cares, right?

Anon E. Mous (profile) says:

It will be interesting to see what the people of Mississippi think about Hood using his public office to do the bidding of the MPAA at the behest of Hollywood entertainment conglomerates.

If anything this is just another example of how you can funnel monies and buy a politician in elected office to do your bidding under the guise of their sworn duties as an elected official.

Hood is just another in a long line of politicians that when he speaks, you’ll always wonder what the truth really is.

Move over Ronald McDonald, there is a new clown to fill your shoes, and it’s Jim Hood.

Anonymous Coward says:

The truth of the matter is that Google has been engaging in fraud with the accounts of disconnected AdSense clients. They are being sued by multiple entities and being investigated for this fraud.

Google thinks it can put up a smokescreen saying Hood is being bought by the MPAA and other nonsense.

Good luck with that, Google.

Anonymous Coward says:

Re: Re: Re:

I Googled it and I found this link

http://www.cnet.com/news/new-lawsuit-accuses-google-of-adsense-fraud/

“A lawsuit filed Tuesday against Google accuses the tech titan of engaging in widespread fraud by canceling AdSense accounts just before they were due to pay out.”

However there are some things suspect about this

“Matt Cutts, the executive in charge of Google’s Web spam team, decried the claims as a “conspiracy-laden fake, from the typos to wrong terminology to untrue policies to the lack of specific names of people.””

“The anonymous accuser described on PasteBin claimed first-hand knowledge of a purported scheme that started in 2009 to cancel AdSense accounts just before payouts to prevent publishers from collecting money that Google owed them.”

http://www.cnet.com/news/google-rebuffs-claim-of-adsense-fraud/

These accusations seem to stem from some anonymous users on Pastebin and Reddit.

“read the accusation, which had been posted on PasteBin and reposted Reddit.”

It doesn’t seem like these accusations carry that much credibility, at least not yet, and it would be interesting to see if this leads anywhere. If Google is indeed engaging in nefarious activities then, like anyone else, they should probably be fined (depending on how Adsense is supposed to work and how the agreements are structured). but, at this point, for this AC to claim this as ‘truth’ seems like he is just fishing for anything to accuse Google of and to distract us from the issue at hand. Big corporations receive lawsuits over all sorts of things all the time, sometimes they are responsible and they lose those cases, sometimes they aren’t responsible and they prevail, sometimes it’s unclear and they simply settle because it’s not worth the hassle of litigating. The AC’s attempt to change the subject seems off topic at best.

“Google thinks it can put up a smokescreen saying Hood is being bought by the MPAA and other nonsense.”

The evidence suggesting that the MPAA has bought Hood hasn’t came out due to Google’s efforts and, in fact, seems to have caught Google by surprise. But I suppose you will try to put up a smoke screen that Techdirt is secretly bought by Google to put up this smoke screen despite not having any evidence. Because these baseless claims with no evidence are supposed to be taken seriously yet the claims of corruption against the MPAA with plenty of evidence to back them up are supposed to be ignored.

Anonymous Coward says:

Re: Re: Re: Re:

and even if Google does happen to be wrong here no one is arguing that Google is always perfect. Like all big organizations they probably have dome some things that they probably should not have done. but to use that to discredit Google here and distract us from the issue at hand doesn’t seem to really contribute to the discussion.

Anonymous Coward says:

Re: Re: Re: Re:

Interesting post and it certainly may have merit. A lot of this seems to boil down to Google’s poor communication with its customers and users, something Techdirt has pointed out in the past is a weakness of Google. Google certainly isn’t perfect and there are some things it needs to improve on, things a competitor can perhaps come in and fulfill. It would be interesting to see where this case goes as the facts come out and your link does suggest that these cases may have merit. However they still aren’t really that relevant to the OP.

Anonymous Coward says:

from the Verge

The company has also issued a document preservation notice to both the MPAA and the law firm Jenner & Block, asking them to retain documents related to the Goliath campaign and hinting at further legal action in the future. The result is a major campaign against a program that, until a week ago, no one outside of Hollywood studios knew about. It’s just the kind of counteroffensive MPAA executives worried about in the initial email leaks, when they raised concerns over “what Goliath could do if it went on the attack.”

That One Guy (profile) says:

Re: Re:

Once you make it high enough up the ladder, you can get away with pretty much anything in the US, with one notable exception: Anything sexual, criminal or not.

The US is filled to the brim with prudes, and people downright terrified of sexuality, so if a politician is accused of sexual misconduct, they are screwed.

Taking money, and orders, from special interests? Business as usual, not a problem.

Get a BJ in a bathroom and get caught? Immediate calls for resignation and mass outrage.

Alien Rebel (profile) says:

Re: Re: Re:

If you stop to think about it, a BJ in a stall indicates a politician who’s motivated by something other than money, has impulse control issues, and maybe can be turned or compromised by a competitor on the cheap.

The moneyed interests naturally would like their political purchases to be predictable; simple creatures that respond to money only.

Anonymous Coward says:

i doubt if Hood has done any of this for nothing, so can only assume he has been ‘encouraged’ in the ‘Time Honored Way’. the ridiculous part is if there was any truth in what he was saying the MPAA would be saying it, not him. there would be no reason to have him (and others), doing the dirty work because there wouldn’t be any ‘dirty work’ to do. the only reason he has been thrown at this is because the entertainment industries know full well there isn’t an iota of truth in what he has said and was just hopping some of what was said would achieve something positive for them. that one thing achieved would then be used as a lever to get other things achieved!
what is desperately needed is for the government itself and the security forces in the form of the DoJ to have some balls and do what they should have decades ago, along with Congress and told the MPAA and others their fortunes if they didn’t stop their ‘holier than thou’ attitude and stopped trying to rule the world as if, like the industries, it was make believe. as it is, the corruption i fear has gone too deep for too long and wont be rid of until the stupid old farts in Congress atm have curled up their toes and some young blood has taken the vacant positions!!

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