Commentary

Attorneys General Close Ranks Against Google

Dozens of state law enforcement officials are backing Mississippi Attorney General Jim Hood's request to resume his investigation into allegations that Google facilitates online piracy.


The officials contend in papers filed this week that U.S. District Court Judge Henry Wingate in Mississippi prematurely blocked Hood from developing potential evidence against Google. “Upholding the District Court’s preliminary injunction order would have broad and unwelcome consequences,” attorneys general from 39 states and the District of Columbia write in a friend-of-the-court brief filed with the 5th Circuit Court of Appeals.

“Obviously, it would thwart General Hood’s ability to investigate and enforce, as necessary, violations of Mississippi’s consumer protection laws,” the officials write. “Significantly, it also would invite federal-court challenges to scores of civil investigative demands issued every year by state Attorneys General across the county.”

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The attorneys general are weighing in on Hood's two-year-old fight with Google over “illegal” content available through the search results and on YouTube. The battle took place in private until last December, when materials leaked in the Sony hack revealed Project Goliath -- a secret Hollywood-backed initiative to enlist attorneys general to target Google for allegedly facilitating copyright infringement.

Days later, Google went to federal court, where the company sought an order banning Hood from attempting to enforce a subpoena for papers related to Web sites indexed in Google's search results. Google alleged that Hood had threatened to sue the company, or even prosecute it criminally, unless it agreed to block “objectionable” content. When it didn't agree to block material, Hood retaliated by issuing an “enormously burdensome” subpoena for millions of documents, the company said.

In March, U.S. District Court Judge Henry Wingate in Mississippi sided with Google and entered an order temporarily blocking Hood from attempting to enforce his subpoena. He said in a written ruling that Google's decisions about what to publish online were constitutionally protected, and that Hood's attempt to interfere with that judgment by threatening legal action “would likely produce a chilling effect on Google’s protected speech.”

Wingate also ruled that Hood can't target Google for linking to sites that allegedly infringe copyright because state attorneys general lack jurisdiction over copyright infringement.

Hood is now appealing that order. The Mississippi attorney general, along with his supporters, contend that the investigation focuses on whether Google violates the Mississippi Consumer Protection Act by misleading consumers. The anti-piracy organization International Anti-Counterfeiting Coalition elaborated on that theory earlier this year, arguing that Google might dupe consumers by leading them to think its search engine returns links to sites that don't infringe copyright.

“Google represents to consumers that it demotes pirated content and claims that its top search results are 'high quality,' which Google has represented means sites containing original content, sites to which consumers should feel comfortable providing credit cards, and sites that do not contain malware,” the group argued to Wingate. “But even the limited evidence available without investigation suggests that Google’s claims about demotion of pirated content may not be accurate in at least some cases.”

For their part, the attorneys general backing Hood argue that he is entitled to information needed to enforce the state's consumer protection law. “Google should not be allowed to bypass state subpoena review processes and derail a legitimate state consumer protection investigation by filing premature declaratory judgment lawsuits and obtaining sweeping preliminary injunctions in federal court,” the attorneys general write.

It isn't surprising that attorneys general would close ranks against a Web company. On the contrary, law enforcement officials in various states have long attempted to target Web companies that allegedly host illegal content.

In many cases, state law enforcement officials have not gotten far in those fights. Consider, in 2010, that South Carolina Attorney General Henry McMaster threatened to prosecute Craigslist executives for abetting prostitution by allowing users to post adult ads. That move spurred Craigslist to sue McMaster, who then agreed that he wouldn't move against the company while the lawsuit was pending. (Craigslist later dropped its adult listings, following which a judge dismissed the lawsuit, ruling that the possibility of prosecution was remote.)

The year before, a federal judge in Illinois dismissed a lawsuit by Cook County sheriff Thomas Dart, who accused Craigslist of creating a public nuisance by allegedly running prostitution ads. More recently, attorneys general in Washington and other states have unsuccessfully defended laws that would have allowed companies like Backpage to be prosecuted based on ads placed by users.

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