Google v. Hood: Coming Soon to an Appeals Court Near You

A courtroom drama pitting search giant Google against
Mississippi Attorney General Jim Hood is unfolding this summer in the Fifth
Circuit Court of Appeals. While fundamentally, the spat between Google and Mr.
Hood is only the most recent manifestation of disputes over role of online
intermediaries, Hood himself has referred to the details of Google v. Hood
as a “salacious Hollywood tale.” The facts are
stranger than fiction: a high-profile public official stands accused of colluding
with the film industry in a secret industry plot to censor the Internet, thanks
to information uncovered in emails released during the North Korean hacking scandal.

The story begins in October of 2014, when Hood’s office issued a hefty 79-page subpoena to the tech giant, requesting “141 specific documents, 62
interviews, and a catch-all request for any information relating to ’dangerous
content’ hosted on Google’s network.” Ostensibly, the request was part of an ongoing
crusade by several states against online illicit drug sales, which Hood
argues have led to a windfall of advertising dollars for Google. Google
challenged the discovery request, alleging that compliance would be so onerous
that it constituted a penalty in and of itself.

As outlined in an amicus brief filed by the Electronic Frontier
Foundation and co-signed by New America’s Open Technology Institute, Hood’s
punitive subpoena alone violates the express protections for Internet
intermediaries outlined in a 1996 federal law called the Communications
Decency Act (CDA), specifically Section 230. (I work for OTI; Eric Schmidt, the executive chairman of Google, is also on New America’s board, and New America has received money from Google and Schmidt.)  

The Internet as we know it today is a fire hydrant of online
expression and creativity, and in part, this is because Section 230 shielded it
from a crush of regulation and litigation that in its early days could have
reduced that flow to a trickle. The law immunizes websites and other
interactive web services–known as online intermediaries–from excess liability
for linking to or hosting third party content. For nearly 20 years, Section 230
has been held to be a core pillar of Internet law, enabling it to become what
Congress termed a “true diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for intellectual activity.”
In fact, its protections were considered so central to the flourishing at the
Internet that when the rest of the CDA was struck down as unconstitutional in
the 1997 Supreme Court ruling in Reno v.
ALCU, Section 230 survived.

If prosecutors are allowed to enforce overly broad subpoenas
like Hood’s, companies like Google would be forced to start limiting the speech
of their users to avoid receiving such subpoenas in the first place. This kind
of trickle-down censorship, exactly what Section 230 was designed to prevent,
would threaten the First Amendment protections of both Google and its users.

But of course, in this “Hollywood tale,” the plot thickens.

A few months after Hood’s original subpoena went out, the Sony
Hack rocked all of Hollywood. Thousands of files were released, but a select
few of these leaked messages revealed multiple exchanges
between Hood and representatives of the MPAA, or the Motion Picture Association
of America. While the major Hollywood studios and a Mississippi public official
might seem like strange bedfellows, “smoking gun” messages uncovered by The Verge reveal that Hood’s
offensive against Google may have originated with the MPAA. Further analysis by the New York Times even showed that one
letter sent out by Hood’s office on the subject of Google had mostly been
written by MPAA lawyers.

These emails situate the AG’s actions within a convoluted,
multi-year strategy against the search engine, planned and paid for by the
MPAA. The attack on Google, which is consistently referred to in the messages
with the code name “Goliath,” would be twofold. First, the MPAA laid out plans
for a legal campaign would be run out of various state AG’s offices, and
second, proposed a simultaneous “media blitz” aimed at harming Google’s stock
and add pressure for the company to remove all file-sharing links. The studio
execs seem to have had little concern for censorship risks. A message
sent by MPAA general counsel Steven Fabrizio reads, “We start from the
premise that site blocking is a means to an end.”

Actions taken by Hood’s office and the MPAA as the scandal
unfolded suggest that they knew they’d been caught red-handed. Hood called a “timeout,” and when from the watchdog blog
TechDirt asked for the release of emails exchanged between Hood’s Office and
members of the MPAA, the AG’s office refused to do so unless TechDirt agreed to
pay $2,103.10 in advance to cover “estimated costs” of fulfilling the
request. Similarly,
Hood’s alleged co-conspirators at the MPAA resisted requests to turn over
documents related to their own exchanges with Hood’s office, expressing their shock and dismay when Google
subsequently sued Hood and filed its own counter subpoenas of the MPAA in New
York Federal Court.

While outside observers can only speculate over the extent to
which Hood and the MPAA are in cahoots, it’s clear that they have similar
interests. Both parties were seeking to exert control over the Internet by
ganging up on Google, one of the biggest online intermediaries out there.

Beyond its melodrama, Google
v. Hood also embodies a deeper ideological clash that persists between
those who believe that Internet content must now be technologically and legally
controlled and those who argue that it remain as as open as possible in the
service of free expression. Organizations like the MPAA and its analogue in the
music industry, the Recording Industry Association of America (RIAA), advocate
for strict control, while technology companies (many of whom are the online
intermediaries who would likely bear the costs of any control regime) and civil
liberties activists want to preserve an unhindered atmosphere.

Despite the clear provisions of Section 230, those attempting
to exert control over online content and speech consistently target
intermediaries like Google more than anyone else, and often do so through back
channel lawsuits, which explains the triangulation of Mr. Hood, the MPAA, and
Google. While the movie studios do not necessarily share Mr. Hood’s interests
in the world of online drug sales, they are in a perpetual tizzy over the
online piracy. From their perspective, by providing links to pirate sites (or
links to sites that link to pirate sites) Google is a piracy enabler, and thus,
the archenemy.

While a market dominant search engine like Google might make
the headlines with this kind of lawsuit, its core issue of Section 230
protections is even more critical for smaller entities throughout the Web. A
smaller site might balk when confronted with legal action, realizing that hefty
legal expenses could actually drive it out of existence. Robust free expression
is so essential to the functioning Internet that overbroad efforts to control
such speech, including procedural ones like subpoenas, are both illegal and
detrimental.

Mr. Hood may have initially envisioned his role as one of a
crusading David against “Goliath,” as the ensuing legal proceedings between
Google and the MPAA get uglier, but at the moment, he seems cast as a hapless
extra in Clash of the Titans. This unproductive lawsuit is undoubtedly
distracting in his duties as a public official of Mississippi. In the words of
Mr. Hood himself, hopefully “cooler heads will prevail” in this latest fight
over the Internet.