Last week, the Fifth Circuit Court of Appeals overturned an injunction issued by a federal district court judge last year. 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.

EFF supported the injunction as a measure necessary to nip the abusive use of a state official’s investigatory subpoena power in the bud, and we’re sorry to see the injunction overturned.

Attorney General Hood issued the 79-page investigatory subpoena at issue to Google back in October 2014, seeking information about Google’s policies and practices with respect to content it hosts, Internet searches, and more. The broad request—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. Documents later disclosed in the 2014 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 and working with him to plan a smear campaign against the company.

Google sought protection from a Mississippi federal court, and the court issued a preliminary injunction, blocking the Attorney General from enforcing the subpoena. The Attorney General appealed the district court’s order to the Fifth Circuit appeals court, and last week, that court overturned the district court’s order.  The court recognized that the subpoena was “expansively” written, but it 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.  As far as what happens next in the case, we’ll have to wait and see whether Attorney General Hood decides to enforce the subpoena.

EFF filed an amicus brief with the Fifth Circuit back in August 2015—joined by the Center for Democracy and Technology (CDT), New America’s Open Technology Institute (OTI), Public Knowledge (PK), and R Street Institute—urging the appeals court to uphold the injunction. As we argued in our brief, allowing this this type of abuse of investigatory powers by state officials would set a dangerous precedent. A campaign like Attorney General Hood’s violates Section 230 of the Communications Decency Act (CDA), which is supposed to encourage the development of new communication technologies by shielding intermediaries from liability based on third-party content. It 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. And while large companies like Google often have the resources to defend themselves against abuses of power by state officials, small companies often simply can’t afford to fight back. A similar campaign against a smaller Internet company could drive it into bankruptcy.

The Fifth Circuit recognized that this case implicates both Section 230 and the First Amendment and limited its holding to the fact that subpoena had not yet been enforced. But it’s a shame the court didn’t use this opportunity to send a message to state officials that abusive use of their investigatory powers would not be tolerated. 

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