NEW ORLEANS (Legal Newsline) - This week, the Consumer Electronics Association and other industry groups showed their support for search engine giant Google, asking a federal appeals court to uphold an injunction against Mississippi Attorney General Jim Hood.
“Amici represent cutting-edge Internet, technology and consumer electronics providers, many of which would lack the legal resources to respond to a sprawling retaliatory investigation,” they explained in their 23-page brief. “Amici’s small business and startup members are not equipped to dispute such extra-judicial demands by state law enforcement officials, and few online services could manage varying demands to limit access to content originating from 50 different states, each with their own view of what speech may be permitted online.”
The groups argue that state attorneys general cannot supersede the Communications Decency Act and the Digital Millennium Copyright Act by demanding online services suppress third party speech.
“Congress deliberately chose to limit the liability of online services for the actions of third party users,” said Gary Shapiro, president and CEO of CEA.
Shapiro said doing so has helped encourage innovation and investment, and made the U.S. the home to most of the world’s leading Internet businesses.
“Attorney General Hood disagrees with Congress’s national Internet policy, evidently believing that service providers should monitor and filter the Internet for content he deems objectionable,” the groups wrote in their brief.
Shapiro said if Hood is allowed to proceed, it would set a dangerous precedent allowing state attorneys general to “handcuff” the Internet and economy.
In March, Judge Henry Wingate for the U.S. District Court for the Southern District of Mississippi granted Google’s motion for a temporary restraining order and motion for preliminary injunction against Hood.
The judge’s order prevents the attorney general from enforcing subpoenas or bringing a civil or criminal charge against Google under state law, as threatened.
Hood filed an appeal with the Fifth Circuit soon after.
In July, 40 of the nation’s state attorneys general filed an amicus brief, siding with Hood.
Those states signing the brief included: Kentucky, Massachusetts, Pennsylvania, Arizona, Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia and Wisconsin. The District of Columbia also signed.
The list included 23 Republicans and 17 Democrats. Notably missing was California Attorney General Kamala Harris, a Democrat. Google is headquartered in Mountain View, Calif.
Hood sent a 79-page subpoena to Google last fall. The attorney general has said he suspects the company is helping criminals through its search engine and autocomplete function. Hood also takes issue with the company’s sharing of YouTube ad revenue.
But Google, which filed its lawsuit against Hood in December, argues it can’t be held responsible for third-party content. It also believes the attorney general is in cahoots with movie studios to use legal action to obtain better piracy protection.
In his full written order March 27 -- a follow-up to his March 2 order granting Google’s motion for a TRO and preliminary injunction -- Wingate was highly critical of the attorney general, saying he could not “wage an unduly burdensome fishing expedition into Google’s operations.”
CEA, CCIA and Engine contend the Motion Picture Association of America -- a Washington-based trade association and lobbying group -- and Hood’s office collaborated on a secret “dirty tricks” campaign to attack Google.
“While this case is clear as a matter of law, as a matter of ethics it is highly disturbing,” Shapiro said. “Hood’s involvement destroys the presumption of impartiality we require from public officials and law enforcement officers. Meanwhile, the MPAA -- once one of D.C.’s most reputable trade associations -- stains its reputation by engaging in a covert smear campaign.
“We urge both Attorney General Hood and the MPAA to discontinue these unsavory, objectionable and possibly illegal tactics at once.”
The groups, in their brief, argue that state attorneys general and the motion picture industry are “perfectly free” to exercise their authority “in the many areas where doing so does not contradict national Internet policy” or lobby Congress to change that policy.
“This Court should not allow state attorneys general to use burdensome investigations to undermine national policy and obtain power Congress has thus far declined to grant,” they wrote.
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