Mississippi AG to 'Re-Evaluate' Google Probe After 5th Circuit Vacates Injunction
Mississippi Attorney General Jim Hood said Monday that his office will “re-evaluate” how to proceed with enforcement of its subpoena looking into Google’s search practices. A three-judge panel of the 5th U.S. Circuit Court of Appeals vacated a 2015 U.S. District Court ruling in Jackson, Mississippi, which granted Google a preliminary injunction against Hood. Several parties supporting Google told us they view the 5th Circuit’s Friday ruling as only a procedural victory that requires Hood to enforce his subpoena before a federal court can adequately evaluate the company’s claims about the AG’s investigation.
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Supporters of Hood, a Democrat, told us they believe the 5th Circuit ruling is a victory over what they view as Google’s attempt to pre-empt state attorneys general from investigating the company. But Hood's supporters also suggested he should consider narrowing the scope of his investigation.
The injunction that Judge Henry Wingate granted Google in March 2015 “covers a fuzzily defined range of enforcement actions that do not appear imminent,” Judge Stephen Higginson wrote for the 5th Circuit panel. “We cannot on the present record predict what conduct Hood might one day try to prosecute under Mississippi law.” Chief Judge Carl Stewart and Circuit Judge Carolyn King voted to vacate Wingate’s ruling. Wingate had ruled and later affirmed that Google didn't need to "expose itself to civil or criminal liability before bringing a declaratory action to establish its rights under federal law." Wingate noted Google-submitted evidence that Hood publicized “inflammatory statements” against Google and that the company said it attempted to comply with many of Hood’s requests for changes to objectionable content (see 1503020060 and 1503310023).
Hood’s subpoena constituted a “pre-litigation investigative tool” for his investigation into how Google handles issues like copyright infringement, data theft, illegal prescription drug sales and human trafficking, the 5th Circuit said. Google’s invocation of its First Amendment rights as a basis for the injunction “cannot substitute for the presence of an imminent, non-speculative irreparable injury,” the 5th Circuit said. “And we cannot say at this early stage of a state investigation that any suit that could follow would necessarily violate the Constitution.” The court declined to opine “on the reasonableness of the subpoena or on whether the conduct discussed in the parties’ briefs could be held actionable consistent with federal law.”
Hood told reporters Monday that he fully expects that Google will file for an en banc 5th Circuit review of the three-judge panel’s ruling. He said his office is going to begin to review the extent to which Google has revamped its practices since Wingate’s injunction took effect more than a year ago. Hood said he's optimistic Google improved its practices for dealing with illegal prescription drug sales and prostitution, which he said remain his main focus. Hood said he remains interested in how Google deals with copyright infringement, and his office also has also begun to explore “several new issues,” including data mining and search manipulation. “Hopefully we can sit down and have a civil conversation now,” Hood said. He said his office wants to work with Google to determine when an information request may be difficult for the company to compile and he's willing to “pare back” his office’s requests when warranted. Google is “reviewing the implications of the Court's decision, which focused on whether our claim was premature rather than on the merits of the case,” a spokesperson said.
It’s “prudent” for Hood to “narrow the focus” of his investigation into Google’s practices given that the 5th Circuit’s ruling called the subpoena's scope expansive even as the court ruled in Hood’s favor, said NetCompetition Chairman Scott Cleland. “I’d be surprised if he doesn’t focus his investigation a little more now so he can take away” that line of criticism in advance of a possible en banc 5th Circuit review, said Cleland, whose group is backed by ISPs. The 5th Circuit’s ruling may provide Hood with a “face-saving way” to significantly narrow the scope of his office’s investigation amid the political backlash that Hood’s subpoena has caused, said an industry lobbyist who supports Google’s position on the subpoena.
Hood will need to make a “political decision” whether to continue to pursue his office’s Google investigation, Electronic Frontier Foundation (EFF) Senior Staff Attorney Mitch Stoltz told us. Stoltz filed a pro-Google amicus brief for EFF, the Center for Democracy and Technology, New America’s Open Technology Institute, Public Knowledge and R Street Institute. Hood will need to carefully consider his office’s investigation given what critics view as damaging documents made public in the 2014 Sony Pictures Entertainment data breach (see 1412170050) that claimed to show MPAA influenced Hood's criticism of Google's practices, Stoltz said. Google claimed in its lawsuit that a “substantial lobbying effort” by MPAA prompted Hood’s subpoena (see 1412190045).