A high-profile battle over whether Google must respond to an unusual and dangerous subpoena raises fundamental concerns about federal free speech law and the protections it affords hosts of online content.
Attorney General Jim Hood of Mississippi issued the 79-page subpoena in October, seeking information about Google’s policies and practices with respect to content it hosts, Internet searches, and more. The invasive request appeared to be based primarily on allegedly unlawful activities of third parties who use Google’s services. Then in December, journalists reported that documents disclosed in the Sony hack outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant. In the face of these developments, and the Attorney General’s unwillingness to narrow the request, Google sought protection from a Mississippi federal court.
EFF filed two amicus briefs in the case—one to the district court and one to the Fifth Circuit Court of Appeals—arguing that Congress’ express intent with Section 230 of the Communications Decency Act was to encourage the development of new communications technologies by holding online speakers responsible for what they say—instead of the soapboxes where they say it. It’s a principle that has allowed the Internet and the myriad online communities it contains to thrive. Attorney General Hoods campaign could also violate the the First Amendment, which protects the right of service providers to exercise editorial control over the third party content they host and the right of Internet uses to receive and engage with such information online.
In April 2016, the Fifth Circuit Court of Appeals overturned an injunction issued by a federal district court judge in March 2015. The injunction would have prevented Mississippi Attorney General Jim Hood from enforcing his massively large and demanding administrative subpoena against Google. The injunction would also have prohibited the Attorney General from bringing civil or criminal charges against the company for making third-party content accessible to Internet users. The court found that because the Attorney General had not yet moved to enforce the subpoena against Google—and because he did not have statutory authority to enforce the subpoena on his own without bringing it to court—the administrative subpoena was not “ripe” for review.
Special thanks to our local counsel Herbert W. Wilson II of Gulfport, Mississippi.