Commentary

Mississippi Attorney General Withdraws Google Subpoena

Mississippi Attorney General Jim Hood has withdrawn a 79-page subpoena demanding that Google provide him with millions of documents related to online copyright infringement.

Hood sent Google a letter withdrawing the subpoena on Friday, two weeks after a federal appeals court allowed him to resume investigating whether the company enables online copyright infringement. But even though Mississippi's top law enforcement official dropped the subpoena, he told Google it was still bound by a June 2013 "litigation hold" letter, which directed the company to preserve evidence.

Google disclosed Hood's move in a motion asking the 5th Circuit Court of Appeals to reconsider its earlier decision in favor of Hood. 

The court battle about the subpoena dates to late 2014, 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.

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Google sought an order prohibiting Hood from bringing charges against the company, and 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.

Last March, U.S. District Court Judge Wingate in Mississippi granted Google's request, after finding a “substantial likelihood” that Google's free speech rights were violated by Hood. Wingate ruled 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."

Wingate added 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.

Hood then appealed to the 5th Circuit, asking to resume his "hijacked" investigation.

On April 8, a three-judge panel of that court sided with Hood and lifted the injunction that prohibited him from enforcing the subpoena.

A panel of that court's judges wrote that Google's request for an injunction was premature, given that the company went to court before Hood took steps to force Google to comply with the subpoena. That panel also directed Wingate to dismiss Google's complaint.

On Friday, Google asked the appellate court to reconsider. "The record establishes that Google faces a genuine threat of enforcement action, one that is not imaginary, speculative, or chimerical," Google wrote.

The company added that although Hood withdrew the subpoena on Friday -- the same day that Google filed its court papers -- he also reminded the company of a "litigation hold" requiring it to preserve evidence.

"No one can reasonably be expected to brush off a state attorney general’s specific allegations of unlawful conduct and repeated threats of enforcement action," Google wrote. "The law does not require Google to either accede to Hood’s demands or call his bluff."

It's not yet clear whether Hood intends to pursue an investigation.

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