Today, EFF and a coalition of public interest groups filed an amicus brief with the Fifth Circuit Court of Appeals in a high-profile battle over whether Google must respond to an unusual and dangerous subpoena issued by Attorney General Jim Hood of Mississippi. As we explain, the subpoena represents a threat to not only large Internet service providers like Google, but also small service providers and the users who rely on their platforms for online speech.

Attorney General Hood issued the 79-page subpoena back in October 2014, seeking information about Google’s policies and practices with respect to content it hosts, Internet searches, and more. The request—which was remarkably broad and replete with speculative, non-specific allegations—appeared to be based primarily on allegedly unlawful activities of third parties who use Google’s services. It also appeared to be served in retaliation for Google’s refusal to comply with the Attorney General’s prior demands that Google monitor, take down, or block certain third-party content. 

Then, in December, documents disclosed in the Sony hack revealed a Hollywood plot against Google, with the Motion Picture Association of America (“MPAA”) pushing the Attorney General to aggressively investigate the search engine giant. (Later documents suggest that the MPAA and Attorney General Hood were working together to plan an anti-Google smear campaign.)

Shortly thereafter, Google sought protection from a Mississippi federal court, asking the court to issue a preliminary injunction blocking the Attorney General from enforcing the subpoena. EFF filed an amicus brief—joined by the Center for Democracy and Technology (CDT), New America’s Open Technology Institute (OTI), Public Knowledge (PK), and R Street Institute—in support of Google, arguing that Section 230 of the Communications Decency Act (CDA) clearly protects hosts of Internet content from liability and burdensome discovery based on content generated by third-party users. The district court agreed with us and granted Google’s request for a preliminary injunction.    

The Attorney General was unsatisfied with this result and appealed the district court’s order to the Fifth Circuit.  EFF—again with CDT, OTI, PK, and R Street—filed a second amicus brief in support of Google, voicing our concern that allowing this type of abuse of investigatory powers by state officials would set a dangerous precedent. It would violate not only Section 230 of the CDA—which was intended by Congress to encourage the development of new communication technologies by shielding intermediaries from liability based on third-party content—but also the First Amendment. The First Amendment protects both 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.

Allowing such blatant abuse by state officials would also harm the public interest. As we state in our brief:

If allowed to continue, the pressure tactics employed by the Attorney General here would send a dangerous message to large and small service providers, as well as the Internet users who rely on their platforms to communicate, learn, and organize online. That message would stifle innovation, chill online speech, and flout the public’s First Amendment interest in an uncensored Internet.

We hope the Court of Appeals agrees and upholds district court’s preliminary injunction order.

Special thanks to our district court local counsel, Herbert W. Wilson II of Gulfport, Mississippi.