Last week, after over a year of fighting in court, Mississippi Attorney General Jim Hood withdrew a burdensome, 79-page investigatory subpoena issued to Google back in October 2014. Documents from the 2014 Sony hack implied the subpoena was part of a Hollywood plot against the search giant, with the Motion Picture Association of America (“MPAA”) pushing the Attorney General to aggressively investigate and smear the company.
Last year, a federal district court issued an injunction prohibiting Hood from enforcing the subpoena. Although the Fifth Circuit Court of Appeals vacated the injunction last month on the ground that Hood had not yet moved to enforce the subpoena (and because he did not have statutory authority to enforce the subpoena without asking for court’s help), the court made it clear that the subpoena was “expansively” written and presented a serious threat of violating both the First Amendment and Section 230 of the Communications Decency Act (CDA).
Hood seems to have taken note. According to Google’s most recent filing, Hood withdrew the subpoena by letter on April 22, 2016. Hood, however, indicated that Google was still under a “litigation hold”—essentially meaning that Google could be in trouble if it didn’t hold on to the documents that are the subject of the subpoena. (And given the incredible breadth of the subpoena, that’s a lot of documents.)
Unsurprisingly then, Google isn’t done fighting. The company has asked for a rehearing before the Fifth Circuit panel.
We are happy to see Google continuing to fight against this attempted abuse of a power by a state government official. Hood’s subpoena is replete with speculative, non-specific allegations, and it appeared to be based primarily on allegedly unlawful activities of third parties who use Google’s services. Holding a service provider like Google liable for this information would be a direct violation of Section 230, which is intended to encourage the development of new communication technologies by shielding intermediaries from liability based on third-party content. The subpoena also threatens to violate the First Amendment, which 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.
We support an injunction against Hood in this case. We told the Fifth Circuit as much in an amicus brief back in August 2015. As we argued in our brief, allowing this this type of abuse of investigatory powers by state officials would set a dangerous precedent. An injunction is necessary to send a message that courts will not tolerate such abusive use of a state official’s investigatory subpoena power. It’s an important message to send, because not all companies will have the resources to fight back against such abuses of power.
Thanks to the Center for Democracy and Technology (CDT), New America’s Open Technology Institute (OTI), Public Knowledge (PK), and R Street Institute for joining our amicus brief.