Corruption Watch: State Attorneys General Line Up Behind Jim Hood, Support Power To Attack Enemies Of Big Corporate Donors

from the gee,-I-wonder-why... dept

A large group of state Attorney Generals has now stepped into the legal fight between Mississippi Attorney General Jim Hood and Google. As we’ve explained a bunch, Hood went after Google with an investigation and detailed subpoena that was funded and written by the MPAA itself. In response to this, a federal court has already called out Hood’s actions, noting that there was “significant evidence of bad faith” on the part of Hood as he attempted to unconstitutionally hold Google responsible for anything bad that its search engine found on the internet.

We’ve written plenty about issues with state Attorneys General. The state Attorney General position is frequently seen as the stepping stone to becoming state governor or US Senator. State AGs have a reputation as being grandstanding tools, focusing on getting big headlines over actually enforcing the law. In fact, they often will focus on grandstanding even when there is no legal basis whatsoever. The most damning account of this is one we wrote about five years ago, in which a group of AGs teamed up to shake down Chris Tolles, the CEO of online forum site Topix. The story is incredible and well worth reading. You’ll see how a bunch of state AGs kept putting out press releases, blaming Topix for things with no legal basis. Tolles would go talk to them, explain how the company works in order to build understanding, and the state AGs would then, immediately, turn around and take what he told them, totally misrepresent it, and issue another press release twisting what he’d said into implying that the company was up to no good.

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That’s right. Another press release. This time from 23 states’ Attorney’s General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.

In short, to state AGs, no opportunity to issue a press release slamming a tech company is too good to miss. We’ve seen it done against Twitter, Facebook, Craigslist, small social networking sites, MySpace, ISPs, and video game companies. Frequently there is no actual legal basis for this at all. They just issue completely misleading and out-of-context press releases that slam companies, frequently because people who are up to no good use those tools and the companies haven’t magically weeded out bad actors. In fact, the state AGs have become so drunk with the power of all this that they’ve actually pushed very strongly to change federal law to give them more power to blame websites for the actions of their users, by exempting their investigations from Section 230 of the CDA (the law that says you can’t blame sites for actions of their users).

A few years ago, seeing all these grandstanding plays by state AGs, some enterprising companies began to realize that this was a great way to attack competitors or companies they didn’t like. And thus, as the NY Times covered last fall, a huge lobbying effort was set up by companies to woo state AGs with lobbying dollars, and push them to attack companies they didn’t like. Microsoft, for example, used this to shake down foreign companies over copyright claims, even though copyright is a federal issue, rather than a state one. The NY Times article is rather eye-opening. It details how much lobbying efforts are now targeting state AGs, and how ridiculous it looks. It often involves ex-state AGs, lavish fundraisers and (quite often) issues that are completely unrelated to the state AGs mandate. Laws against corporate influence — including things like having to register to lobby and preventing revolving door issues — often don’t apply to lobbying state AGs, and so the money and influence has come pouring in, which is making state AGs quite happy.

All this is prelude to the amicus curiae brief (friend of the court) filed by 40 state AGs in the appeal of that ruling against Hood. If you think that the state AGs are going to give up their new lobbying gravy train or their power to unconstitutionally shake down big companies, you’ve got another thing coming. The entire brief is one of “Hey we need this power, because FUD!” It starts out with a heartfelt plea for the continued right to “investigate potential violations of state law.” Except, of course, that’s almost never what these cases are about. Often there are no violations of law at all, but rather an attempt to blame companies for actions of their users — which again is protected from liability.

If allowed to stand, the District Court?s March 27, 2015 order (the ?Order?) enjoining the Mississippi Attorney General?s enforcement of his own subpoena would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry. With the Order as a guide, any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be filed civil claims and file a preemptive lawsuit in federal court against state law enforcement authorities. Such an outcome would undermine Attorneys General?s powers, granted to them by state constitutions and state statutes, to protect the general citizenry from violations of state law. It would also flood the federal courts with what amount to state-law discovery disputes. And it should not be countenanced by this Court.

What a bunch of hogwash. If there’s a legitimate violation of state law, then such cases will quickly get dumped. In this case, it was clear from the beginning that the investigation (again, paid for and run by the MPAA rather than Hood’s office) had nothing to do with “violations of state law.” It was, as revealed by the Sony emails, entirely about trying to attack Google. That’s why the court ruled in Google’s favor, noting directly that Hood’s proceeding “was brought in bad faith” and “with the purpose of harassing” Google in an effort to “coerce Google to comply” with unconstitutional demands to remove material from its website (in violation of the First Amendment).

The only situations in which Google’s lawsuit provides a “roadmap” to others is if these state AGs are doing a similar attempt to use their power to demand the censorship of First Amendment-protected content at the behest of corporate interests. If they’re not doing that, they don’t have much to worry about. But, I guess, if you look at all those examples above, those kinds of bogus actions are an important part of some AGs’ press and fundraising strategies. No wonder they’re so loathe to give it up.

The state AGs’ brief continually argues that state AGs should have almost unlimited power to investigate anything, because that’s a huge source of their power, but it’s equally the source of the kind of corruption that the NY Times article spoke about:

In furtherance of this paramount duty, Attorneys General have broad authority under the common law and/or state statutes1 to investigate potential violations of state laws within their jurisdiction, particularly state consumer protection laws.

But that broad authority does not trump the First Amendment and in no way should allow state AGs to launch massive investigations funded for and run by corporate entities into companies those entities don’t like — and whose sole purpose appears to be to violate the First Amendment rights of those targeted. This is a pretty basic and obvious distinction, and the fact that these state AGs play dumb about it is ridiculous, though not all that surprising.

The filing goes on and on about the importance of “civil investigative demands” (CID) — the kind of subpoena-like tool that the MPAA wrote for Hood to send to Google. And no one doubts the importance of such tools. No one is questioning that. What’s being questioned in this case is the ability for a third party representing corporate interests to write such a CID, give it to a state AG, and have that state AG send it — especially when the clear intended purpose of that CID is not to investigate any violation of state law, but rather to force a company to censor content in violation of the First Amendment. Again, these distinctions are pretty obvious and the state AGs’ brief ignores them all.

The state AGs also attack the fact that Google went to a federal court here, arguing that since Hood hasn’t yet filed suit, Google has no right to go to court first — which is just wrong. Not only has Hood made his intentions clear, Google is noting that it is protected under federal law from the crux of this investigation (to which the court agreed) and thus it is perfectly reasonable to seek an injunction by going to court.

And, of course, the state AGs try to attack Section 230. As we already noted, the state AGs have been lobbying strongly for a special exemption to Section 230 that would allow state AGs to ignore it. And here, it doesn’t take them long to refer to the one case that has limited the interpretation of Section 230, the infamous “roommates.com” case, which argued that the site was not protected for content that it created itself (in that case, involving pull down options that could be seen as violating fair housing laws). This ruling is cited by nearly everyone seeking to undermine Section 230, and in nearly every case it has failed. That is one tiny narrow exemption from Section 230 in a very specific case, totally unrelated to the issues that Hood (er… the MPAA) are arguing in the CID that was sent. But, no matter, the state AGs see a tiny, tiny loophole and attempt to drive a Mack truck through it:

Google attempts to avoid this jurisdictional bar by arguing, in part, that it is entitled to immunity under the Communications Decency Act for any state law consumer protection claims the Attorney General may bring against it. Notably, however, the immunity the CDA affords internet service providers is not absolute. Although the CDA immunizes an interactive computer service from liability for content posted by a third party, it does not provide immunity for content or speech properly attributable to the service provider itself. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (?Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties[.]?) …. Accordingly, the Mississippi Attorney General is entitled to investigate Google?s activity to determine whether Google may be responsible for web content violative of Mississippi?s Consumer Protection Act. Indeed, it is unfair to ask the Attorney General to respond to Google?s contention that the CDA cloaks it with immunity when Google is withholding, and now has a preliminary injunction permitting it to withhold, the very materials that will allow the Attorney General to evaluate whether the CDA applies to Google?s acts and practices.

In other words, because of the very narrow and specific Roommates.com ruling, state AGs should be able to demand all sorts of stuff from companies, even if everything they’re targeting is protected by Section 230, just in case the fishing expedition happens to turn up something not protected by Section 230. That interpretation effectively eviscerates the entire point of Section 230 protections and would allow the state AGs to shake down companies over actions they had nothing to do with. Such an interpretation is not just dangerous, it basically would open the floodgates to more of these bogus corporate-run and corporate-funded investigations.

The state AGs also present a ridiculous and misleading claim of “What’s the big deal here, Google can just respond to the subpoena and it’s not required to change any practices…”

Yet, here the Attorney General?s Subpoena merely represents an investigation. Responding to the Subpoena itself would not force or coerce Google to change its practices and procedures or otherwise abandon its rights. And, in fact, Google has not changed its behavior based on the Subpoena in order to eliminate the threat of potential prosecution–instead, it seeks to eliminate that threat through its lawsuit and the preliminary injunction.

But that ignores the entire history of how the state AGs operate. Again, read that story about Chris Tolles and Topix and his interactions with the state AGs. Despite no legal basis whatsoever, the state AGs constantly used any information he gave them in out-of-context and misleading press releases, creating a massive wave of bogus public pressure to force him to give in or just keep fighting more bad publicity and more bogus threats.

Whatever happens in this particular case, it seems abundantly clear that many state AGs are out of control and somewhat drunk on the power of the office they hold — which has created a situation that can only be described as corrupt. They have tremendous investigatory powers to demand information, and yet there are almost no real limits on how they can effectively sell that power to third parties in the form of fundraisers and even handing over the keys to the investigation to those third parties themselves, as demonstrated by the MPAA writing out the entire CID that Hood sent Google. It’s not surprising that fellow state AGs don’t want to give up such power, but hopefully the court sees through this kind of power grab and puts an end to these kinds of bogus “investigations.”

Nothing in this case would end the state Attorneys General legitimate investigatory powers. It would only serve to stop the abusive practice of allowing special interests to run clearly unconstitutional campaigns against companies they dislike by laundering them through state AGs offices — or to stop the AGs themselves from engaging in these kinds of grandstanding against companies by misrepresenting what’s happening and the law in order to get headlines. If the AGs want headlines and to present themselves as protecting the public, perhaps they could focus on actual law breakers instead.

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Comments on “Corruption Watch: State Attorneys General Line Up Behind Jim Hood, Support Power To Attack Enemies Of Big Corporate Donors”

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53 Comments
GEMont (profile) says:

Re: Re: Re: AGs can do anything they please

Actually, “Bribery” is absolutely legal in the USA when its a politician you’re bribing and as long as you follow the guidelines set out in the “Rules For Successful Lobbying“.

Seeing as how all of the AG’s are already on the Sony Lobby List, and therefor getting 100s of grand a year for their “services” from the Mobster CEOs of America, this gang-up is little more than a show of hands, to let Hollywood and the other Legacy Industries know that the Boys are on the job and earning their graft, and deserve a raise in pay for their efforts.

nasch (profile) says:

Re: Re: Re:2 AGs can do anything they please

Seeing as how all of the AG’s are already on the Sony Lobby List, and therefor getting 100s of grand a year for their “services” from the Mobster CEOs of America…

Collectively maybe, but I’m guessing each of them is only getting a few thousand to maybe tens of thousands. Politicians, even at the national level, can be bought for much smaller campaign contributions than you might think.

GEMont (profile) says:

Re: Re: Re:3 AGs can do anything they please

I was doing an accumulation tally, for services rendered over the last decade or so, cuz this stuff is not really new and has been “the way things are done” for some time now.

I think they used to call it the “Good Old Boys Network”, or something like that.

And while its always easier to vanish a few grand at a time into your offshore, than it is to dump a quarter million in one shot, without someone noticing, the overall total graft funnelling its way into the pockets of elected officials and especially these cowboy politicos they call Attorneys General, probably totals a few hundred million over the last ten years, if not a billion or three.

It is pretty much just a legalized secondary, and untaxable income, now that its called Lobbying rather than Bribery.

I like to think of it as the Yacht Fund, although most of these cowboys are probably more interested in the Bimbos and Cocaine.

Mississippi Voter says:

Re: Re: Re: AGs can do anything they please

It seems that Hood is for sale, last month on the campaign finance report he submitted,interestingly only 6 of his campaign contributions came from his constituents. That’s right 6 people in the whole state last month. The other 100K+ came from companies and others out of state. It is good to know that Wal-Mart, McDonalds, Ebay and others are concerned about the citizens in Mississippi. I am afraid his challenger would never be able to pull in that kind of cash to get him out.

andy says:

Funny

Any communication by any ag in this regard to any business should be an immediate request by a federal court to rule on the law. Let the AG’s lose all credibility and maybe they will be more careful about allowing others to threaten competitors through the ag’s office with the ag signing his name to their demands.

hopefully the federal judge in this case will put the ag’s in their place and advice them to back off and refuse to help the mpaa or any of its affiliates in future.

Anonymous Coward says:

For those interested, participating AGs (per the PDF):

Per pages 18 and 19, section Conclusion, the participating Attorneys General are (in PDF order, which is alphabetical except for the first three considering themselves Commonwealths instead of States):

Kentucky
Massachusetts
Pennsylvania
Arizona
Alabama
Alaska
Arkansas
Colorado
Connecticut
Florida
Georgia (which has a space in the preview, but not in my comment as typed…)
Idaho
Illinois
Indiana
Iowa
Kansas
Louisiana
Maine
Maryland
Michigan
Minnesota
Missouri
Montana
Nevada
New Hampshire (also looks fine in the edit box…)
New Jersey
New York
North Dakota
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Utah
Vermont
Washington
West Virginia
Wisconsin
District of Columbia


If you prefer to see the state Attorneys General who did not sign, that would be:

California
Delaware
Hawaii
Mississippi
Nebraska
New Mexico
North Carolina
Ohio
Texas
Virginia
Wyoming

Anonymous Coward says:

Re: For those interested, participating AGs (per the PDF):

and somehow Massachusetts, rather than getting a space I did not type, dropped off the list entirely. It is part of the first list. I still see it in my out-of-browser list of states that I used while filtering the list of all states to produce the list of non-participating states.

DigDug says:

Re: For those interested, participating AGs (per the PDF):

To all of the above State AGs that signed the brief…

The activities that you are supporting are illegal.
If you continue to support / condone the illegal activities, then you will be charged with criminal conspiracy, aiding and abetting a known felon (Hood), criminal mischief, and all-around fucktardery.

Pull your heads from your asses and prosecute the law as it’s written, not as you want it to be.

The current law clearly and undeniably states that sites, like google, are not responsible for what the “people” aka “users” post / place on web sites.

It’s called Safe-Harbor – you might want to look it up before you commit political suicide as well as getting put up in the 1 star prison of your state’s choice.

Anonymous Coward says:

Re: Re: Re: For those interested, participating AGs (per the PDF):

If you continue to support / condone the illegal activities, then you will be charged with…

By whom? Federal prosecutors have no interest in going after state prosecutors.

Federal prosecutors have no interest in going after the MPAA—either. For whatever that’s worth.

tqk (profile) says:

Re: Re:

See, the thing here is the corruption isn’t from other AGs, it’s from the MPAA, a fact that shouldn’t be buried.

No, the MPAA’s involvement shouldn’t be buried, but this wouldn’t e a problem if the AGs weren’t corrupt. They’re peddling influence. The MPAA’s just a customer.

When the hell is this country going to wake up and realize corporations are the true problem?

They’re not. They wouldn’t be a problem if the gov’t wasn’t a problem; if it was doing its job.

R.H. (profile) says:

Re: Re: Re: Re:

To continue, the voters wouldn’t be a problem if the voting system did its job.

The way it is now, if we actually had more than two viable political parties we could end up with something like the most recent UK elections where a group with less than 40% of the vote, got 51% of the seats in government and therefore 100% of the power. Not good….

That One Guy (profile) says:

Re: Re: Re: Re:

Oh to be sure, it’s all those pesky voters’ fault.

This, in case you haven’t been paying attention, is your typical election option:

Candidate A: Corrupt, completely willing to sell out everything and everyone for a buck, and who cares only for their own power and prestige.

Candidate B: Same as above, has slightly better/worse hair.

Occasionally you’ll get ‘lucky’, and get a third option.

Candidate C: Not corrupt, not willing to sell out, has election fund amounts of about 5-10%(if lucky) of the other candidates, and as a result the vast majority of the voters have never even heard of them outside of any slime the other candidates may fling their way.

Of course sometimes the pesky ‘choice’ thing isn’t even in play, as there’s only one person running, meaning no matter how bad they are they’ll still get the position.

And the real kicker, the punchline to the whole joke of a system, is that even if a non-corrupt person makes it through the gauntlet, the system itself is corrupt, and they’re surrounded by corrupt people, leaving them essentially powerless to actually do any good even if they did want to.

Anonymous Coward says:

Re: Re:

you have to be kidding right? You have Sony, the MPAA, and the AG afraid to death of being investigated, wanting incriminating evidence thrown out because they know it goes against them, trying to avoid being investigated yet you claim it’s Google that’s somehow at fault and that they should be afraid? I don’t know what goes on in that twisted mind of yours but you really need to find a new drug to get high off of.

tqk (profile) says:

Re: Re: Re: Re:

I suggest you familiarize yourself with the facts of the situation. And do it somewhere other than a blog written by a confirmed Google shill.

Just to familiarize myself with the facts, who is it you’re shilling for again?

I’d guess the slimeballs who’re trying to buy favors from elected officials to attack seemingly innocent third parties, but that would be pre-judging you.

David says:

This is priceless

If allowed to stand, the District Court’s March 27, 2015 order (the “Order”) enjoining the Mississippi Attorney General’s enforcement of his own subpoena would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry. With the Order as a guide, any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be filed civil claims and file a preemptive lawsuit in federal court against state law enforcement authorities.

Uh, what?!?!? This translates into “If allowed to stand, there would be checks and balances and legal recourse.”

And that’s supposed to convince a court who has already determined to have a State Attorney General gone rogue “ok, it would be a bad idea to stop AGs from spinning out of control.”?

That’s more like an “Inimicus Curiae”. It is basically telling the court that the AGs are stomping at the gate for thwarting the rule of law and want the court to step aside.

If anything, it should cause the court to step in with a vengeance.

GEMont (profile) says:

Re: Re:

Very astute description.

The infestation is called fascism, and the USA has a really bad case of it.

It is indeed an infestation of internal parasites, and is normally fatal.

It is very difficult to diagnose because its an infestation by those already living in the affected nation – an infestation of the wealthiest people in the nation, who already own most of the structures and land in that nation and whose greed has convinced them that they can have it all.

See pre-world-war-2 Germany and Italy for a prognosis for America.

David says:

Re: Re:

Multinational megacorporations, even when having a seat in America, do not serve American interests. Take a look at all the tax haven crap they are pulling in order to evade serving American interests.

People conflating those corporations’ interests with the interests of America is just an example of successful propaganda. All those repeating that mantra do so because it keeps the hoi polloi patriotically proud of being exploited.

America is sort of a nostalgic homeland for corporations because it’s here that the people applaud the most when the corporations are shitting their beds.

Anonymous Coward says:

Re: Jim hood NAAG

Curiously, I don’t see that mentioned in the filing’s Statement of Interest.

Rules and Internal Operating Procedures of the United States Court of Appeals for the Fifth Circuit (Dec 2013)

5TH CIR . R. 29 BRIEF OF AN AMICUS CURIAE

 . . .

29.2 Contents and Form. Briefs filed under this rule must comply with the applicable FED. R. APP. P. provisions and with 5TH CIR. R. 31 and 32. The brief must include a supplemental statement of interested parties, if necessary to fully disclose all those with an interest in the amicus brief. The brief should avoid the repetition of facts or legal arguments contained in the principal brief and should focus on points either not made or not adequately discussed in those briefs. Any non-conforming brief may be stricken, on motion or sua sponte.

That One Guy (profile) says:

Re: ASHAMED

If you want to get their attention, make sure to include the magic word: Vote.

They don’t care how you feel about them, they care how you vote regarding them. A general scolding will be shrugged off, a promise that you will never vote for them, and will tell everyone you meet to do the same is much more likely to get a response.

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