from the well,-well dept
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).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:
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).
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.Furthermore, Google debunks the notion that it has done nothing to deal with such sites:
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.
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 demandsThat 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.