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
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
, small social networking sites
, 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.