Commentary

Mississippi AG's Demands For Information Likely Violated Google's Rights, Judge Rules

Google appears to be headed for a major victory in its showdown with Mississippi Attorney General Jim Hood.

The company has shown a “substantial likelihood” that its free speech rights were violated by Hood, U.S. District Court Judge Henry Wingate in the Southern District of Mississippi said in a written decision issued late last week.

Wingate said in open court on March 2 that he was going to enter an injunction that would prohibit Hood from attempting to enforce a subpoena for information relating to copyright infringement by companies that appear in Google's search results. But he didn't fully outline his reasons until late Friday, when he posted a written opinion in the high-profile battle.

In the sweeping 25-page ruling, Wingate appears to side with Google on every major point in contention. He said that Google's decisions about what to publish online were constitutionally protected, and that interfering with that judgment by threatening legal action “would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights.”

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Wingate also wrote that Hood lacks authority to target Google for linking to sites that allegedly infringe copyright, because state attorneys general don't have jurisdiction over copyright infringement.

The ruling stems from a two-year-old dispute between Google and Hood that landed in court late last year, shortly after emails disclosed in the Sony hack revealed Project Goliath -- a secret Hollywood-backed initiative to convince state attorneys general to target Google for allegedly enabling piracy.

Google went to federal court in Mississippi to seek an order prohibiting Hood from bringing charges against the company. Google also sought to prohibit Hood from enforcing a subpoena demanding information related to outside companies -- including operators of sites that Google indexes in its search engine -- that allegedly play a role in copyright infringement.

The search company alleged that Hood for months threatened to sue the company, or even prosecute it criminally, unless it blocks “objectionable” content created by consumers or outside companies.

When Google didn't comply with Hood's requests, he served the company with a 79-page subpoena demanding millions of documents. That move “may evidence bad faith on the part of the Attorney General,” Wingate wrote.

The judge added that Google likely is immune from liability for illegal conduct created by third parties. What's more, Wingate wrote, Hood knew that Google likely was immune from prosecution, given that Hood was among the law enforcement officials who recently urged Congress to change the law that protects Web services companies.

Wingate's recent decision isn't the final word on the matter. In fact, he notes in the opinion that the ruling is only preliminary -- meaning that he could change his mind after there's a trial.

In addition, Wingate has already filed an appeal of the ruling. While it's too early to predict the outcome, one possibility is that appellate judges will scale back the decision.

For now, though, Google has prevailed against Mississippi's attorney general as well as Hollywood.

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