Another CDA Victory: Google wins TRO against AG Hood

Published On April 9, 2015 | By Elizabeth Banker | Fourth Amendment, General

On March 27, 2015 Google succeeded in obtaining a temporary restraining order and preliminary injunction against Mississippi Attorney General Jim Hood (“AG”) from Judge Windgate in the U.S. District Court for the Southern District of Mississippi.

The order prevents the AG’s enforcement of an administrative subpoena issued to Google and restrains the AG from: (1) enforcing the subpoena; and (2) bringing civil or criminal charges against Google under Mississippi law based on third party content available through its service.

Based, in part, on the acrimonious history between the two parties (detailed in the Court’s decision), the court found that it had jurisdiction because there was a case or controversy and the Younger Abstention Doctrine did not apply.

In evaluating the merits of Google’s petition, the Court found that Section 230 of the Communications Decency Act (“CDA”) applies to Google’s publishing of third party content. The Court accepted Google’s contention that all of the third party content targeted by the AG’s subpoena, and for which the AG threatened an enforcement action, is protected by Section 230 (and perhaps by other federal laws, including the DMCA). In support of its argument, Google cited a 2013 letter to Congress signed by Jim Hood and 46 other state AGs complaining about the limitations the CDA put on their ability to pursue state enforcement actions.

The Court also found that Google’s speech was protected by the First Amendment and that the AG’s actions likely had chilling effects. The Court went even further to find that the subpoena to Google was potentially issued in retaliation against Google for engaging in protected speech.

As the subpoena related substantially to what was likely protected speech, the Court agreed with Google that the areas the subpoena sought to investigate were not proper areas of inquiry and that the subpoena was potentially so overly broad that it violated the Fourth Amendment.

Given the constitutional significance of the rights at stake, the Court granted Google’s request for a temporary restraining order and preliminary injunction. The AG has already filed an appeal. The case is likely to attract a lot of attention from other State Attorneys General (11 participated as amici at the district court level) as it may call their own investigations into third party-provided content hosted on online platforms into question. For online content providers, this case is a welcome victory to further the breadth of the CDA and DMCA immunities, as well as for First Amendment rights of providers and the consumers of the content they host.

 Photo by Tom Eversley

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.

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