Judge Suggests Attorney General Jim Hood Is Unconstitutionally Threatening Google 'In Bad Faith'

from the ya-think? dept

About a month ago, we noted that a federal court had granted a temporary injunction blocking a subpoena issued by Mississippi Attorney General Jim Hood, demanding all sorts of information from Google. At the time, the judge only said that Google’s argument was “stronger” than Hood’s, but said a full ruling would come out in time. That full ruling [pdf] is now out, and boy, does it make Jim Hood’s anti-Google vendetta look questionable — specifically saying that there is “significant evidence of bad faith” on the part of Hood to try to use his government position to unconstitutionally coerce Google into making changes to its service that it has no legal obligation to make.

If you don’t recall, Hood has a long-standing obsession with Google, despite having an astounding level of ignorance about how the search engine actually operates. In his anti-Google rants, Hood makes statements that are blatantly false and repeatedly argues that Google is to blame merely because its search engine finds websites that Hood’s office doesn’t like and doesn’t think should exist at all. And that doesn’t even touch on the now known fact that the MPAA secretly funded Hood’s investigation and wrote nearly every word of the threatening letters sent to Google.

While Hood and various MPAA supporters have insisted that he’s clearly in the right, at least federal judge Henry Wingate doesn’t see much to support that. Hood tried desperately to keep this issue out of federal court, using a variety of claims, including the so-called “Younger Abstention” which argues that federal courts should stay out of certain issues. However, as Wingate notes, that only applies in three specific cases, none of which apply to Hood’s campaign against Google — and, even if any of them did apply, there’s a further exception for “bad faith” — and Wingate is pretty convinced that Hood is acting in bad faith:

Moreover, even if the Younger elements were satisfied here, the court would not be required to abstain here because an exception to the application of the doctrine applies. Indeed, federal courts may disregard the Younger doctrine when a state court proceeding was brought in bad faith or with the purpose of harassing the federal plaintiff… Google has presented significant evidence of bad faith, allegedly showing that Attorney General Hood?s investigation and issuance of the subpoena represented an effort to coerce Google to comply with his requests regarding content removal. As previously discussed, the Attorney General made statements, on multiple occasions, which purport to show his intent to take legal action against Google for Google?s perceived violations. When Google declined to fulfill certain requests, the Attorney General issued a 79-page subpoena shortly thereafter. The court is persuaded that this conduct may evidence bad faith on the part of the Attorney General.

The court also notes that Hood clearly recognizes that many of his attacks on Google are blocked by Section 230 of the CDA (which, again, say you can’t blame a service provider for actions of its users), because Hood himself signed a letter to Congress asking for Section 230 to be amended to exempt investigations by state attorneys general (we wrote about that dangerous effort at the time as well).

From there, Judge Wingate notes that it seems clear that Hood is likely violating Google’s First Amendment rights too, even noting that the subpoena itself appears to be retaliation for protected free expression:

Furthermore, the court also is persuaded that Google has demonstrated a substantial likelihood that it will prevail on its claim that Attorney General Hood has violated Google?s First Amendment rights by: regulating Google?s speech based on its content; by retaliating against Google for its protected speech (i.e., issuing the subpoena); and by seeking to place unconstitutional limits on the public?s access to information. First, the relevant, developing jurisprudence teaches that Google?s publishing of lawful content and editorial judgment as to its search results is constitutionally protected…. The Attorney General?s interference with Google?s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google?s protected speech, thereby violating Google?s First Amendment rights.

Additionally, it is well-settled that the Attorney General may not retaliate against Google for exercising its right to freedom of speech by prosecuting, threatening prosecution, and conducting bad-faith investigations against Google…. As explained supra, Google has submitted competent evidence showing that the Attorney General issued the subpoena in retaliation for Google?s likely protected speech, namely its publication of content created by third-parties. Given the gravity of the rights asserted herein, the court finds it appropriate to enjoin further action on behalf of the Attorney General until a determination on the merits of Google?s claims is made.

Judge Wingate also sides with Google on the 4th Amendment, noting that the broad subpoena appears to be a “burdensome fishing expedition” that goes well beyond what the Attorney General is allowed to request.

Google also wins on the key issue that the MPAA was using Hood to press: how it handles searches for copyright-covered material. As Google points out, copyright is a federal law issue, not a state law issue, so the requests regarding copyright are preempted by federal law. Hood (and, apparently, his MPAA-paid lawyers who helped draw up the subpoena) tried, weakly, to get around this preemption by arguing that by finding unauthorized material, Google was “misleading customers.” That doesn’t fly:

The Attorney General admits that certain requests contained in the subpoena ?could arguably be used to show copyright infringement? (AG Response, p. 30), but argues that the same information could also be used to expose Google?s various practices of misleading customers. The court is not persuaded that the Attorney General?s posited theoretical basis for making these requests is sufficient for the purpose of rebutting Google?s preemption allegation.

Basically, the judge clearly recognizes Hood’s effort for what it was: a broad fishing expedition that was partly “retaliation” against Google for daring to stand up for its right to run an online search engine. The case is far from over, but Hood (and his MPAA-assisted team) are going to have to move on to some other plan of attack. Maybe (just maybe), they can focus on (1) going after actual criminals, rather than made up ones and (2) telling the MPAA to learn how to innovate, rather than blame Google for its own failures.

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Comments on “Judge Suggests Attorney General Jim Hood Is Unconstitutionally Threatening Google 'In Bad Faith'”

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Anonymous Coward says:

Conspiracy charges

Remember how Kim Dotcom was charge with conspiracy charges to do something illegal? I wonder how the AA’s and AG Hood will feel when someone brings the same kind of allegation at them and seizes all assets on the assumption that they were obtained illegally. Seems to be a perfectly valid legal way of destroying people and businesses now.

Anonymous Coward says:

Re: Conspiracy charges

Kim.com didn’t really do anything wrong yet he was severely punished. Yet this AG acted in bad faith and his actions were far worse and his punishment, if any, will be far less. Heck, the government acting against Kim acted far worse than Kim allegedly did yet they will go unpunished. That’s our system of injustice for you. It’s a crime to threaten the business model of those that buy and pay for our politicians, after all, they spent good money buying those politicians and they are legally entitled to a return dang it!!!

Mason Wheeler (profile) says:

Moreover, even if the Younger elements were satisfied here, the court would not be required to abstain here because an exception to the application of the doctrine applies. Indeed, federal courts may disregard the Younger doctrine when a state court proceeding was brought in bad faith or with the purpose of harassing the federal plaintiff…


Hood: Younger! Younger!
The law: I may be younger but I wasn’t born yesterday

That Anonymous Coward (profile) says:

As it is very clear that the AG has repeatedly lied, shouldn’t that be grounds for removal from office?
As it is very clear that he sold the use of his office to those willing to pay him the right amounts result in investigations into all of his actions and in the **AA’s who bought this access?

If they had any legal basis, why would they secretly buy these silly attacks? They are obviously trying to end-run around the law and in the process have shown how far they are willing to go and how easily one can buy influence. There are penalties for these actual violations of the law, and it is well past time that they be enforced.

John Fenderson (profile) says:

Re: Re: Re:

Technically, lying is legal unless you’re under oath. There are some corner cases (for example, if you lie to a cop who is investigating a crime, you’re “obstructing justice” — the lying wasn’t illegal, but the effect of the lying was.)

However, I’ve long argued that public officials should be considered “under oath” whenever they are performing their duties (perhaps with an exception for certain things like cops working under cover).

That Anonymous Coward (profile) says:

Re: Re: Re: Re:

This is an elected offical who publicly stated that the **AA hadn’t done anything.

They paid him
They wrote the letter
He then pulled out lawyer/client privilege to HIDE the truth
Funny he works for the state, he took on another client?

He managed to make a bigger mockery of his office than it was before, and now with bonus evidence available about the quid pro quo I am at a loss as to why no charges have been filed or the process started to put him on leave while an investigation proceeds. Anything the AG’s office has touched is now fair game for being considered tainted, because he sold his influence. Perhaps if we actually enforced the same harsh penalties on them as everyone else has to face perhaps they might not do stupid things.

Anonymous Coward says:

This is bad ,but not as bad as politicians who write
laws or treatys based solely on the interests of music,film companys or drug companys to force other countrys to bring in laws that are anti consumer anti privacy and limit freedom to regulate drug prices
or enforce standards in food.
eg the has laws against certain chemicals in food products
which the usa does not have .

Anonymous Coward says:

Re: Re: Re:

Justice is for those whom can afford to buy it.

Our system has become wholesomely corrupt as the plebs sit back and bicker over left vs right, north vs south, and red vs blue.

Everything George Washington said would happen if we did not drop the party/location/ideological bias.

“I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”

Karl (profile) says:

Re: Bad Faith Must Be A Joke

it has been found guilty of its employees driving around neighborhoods breaking into computer systems remotely and stealing data, passwords etc..??

If you’re referring to the whole Street View thing from 2010, that never happened. Google did not break into computer systems remotely (everything was broadcast to the public), and did not steal data, passwords, etc. (they only collected a minuscule amount of data from each public WiFi router).

Here’s what happened:

Nine days ago [May 5, 2010] the data protection authority (DPA) in Hamburg, Germany asked to audit the WiFi data that our Street View cars collect for use in location-based products like Google Maps for mobile, which enables people to find local restaurants or get directions. His request prompted us to re-examine everything we have been collecting, and during our review we discovered that a statement made in a blog post on April 27 was incorrect.

In that blog post, and in a technical note sent to data protection authorities the same day, we said that while Google did collect publicly broadcast SSID information (the WiFi network name) and MAC addresses (the unique number given to a device like a WiFi router) using Street View cars, we did not collect payload data (information sent over the network). But it’s now clear that we have been mistakenly collecting samples of payload data from open (i.e. non-password-protected) WiFi networks, even though we never used that data in any Google products.

However, we will typically have collected only fragments of payload data because: our cars are on the move; someone would need to be using the network as a car passed by; and our in-car WiFi equipment automatically changes channels roughly five times a second. In addition, we did not collect information traveling over secure, password-protected WiFi networks.

So how did this happen? Quite simply, it was a mistake. In 2006 an engineer working on an experimental WiFi project wrote a piece of code that sampled all categories of publicly broadcast WiFi data. A year later, when our mobile team started a project to collect basic WiFi network data like SSID information and MAC addresses using Google’s Street View cars, they included that code in their software – although the project leaders did not want, and had no intention of using, payload data.

  • http://googleblog.blogspot.com/2010/05/wifi-data-collection-update.html

    This is not even remotely as unethical as bribing a U.S. Attorney General to go after a corporation, primarily because you’re against an open Internet. It’s not even remotely as unethical or illegal as that same Attorney General trampling all over the First Amendment and due process to do so.

    I know you want to paint your masters as the good guys, and Google as mustache-twirling evil villains, but it just ain’t so.

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