Attorneys general from forty states and the District of Columbia have asked the United States Court of Appeals for the Fifth Circuit to lift a preliminary injunction preventing a state attorney general from investigating Google’s business practices.
In 2011, Google signed a non-prosecution agreement with the U.S. Department of Justice in which it acknowledged that it improperly assisted Canadian online pharmacy advertisers target U.S. consumers. Google agreed to forfeit $500 million and to adopt compliance and reporting measures.
“State Attorneys General have reason to believe that Google’s services are still being used for unlawful activities,” according to a brief filed on behalf of Mississippi AG James M. Hood, III at the end of June.
Google asserts that it’s not liable for displaying information created by third parties. “Congress broadly immunized interactive computer service providers from state regulation for displaying information created by others,” according to the company’s December 2014 motion for preliminary injunction.
However, three federal appellate courts have ruled that Section 230 of the Communications Decency Act, to which Google refers, does not confer unlimited immunity.
In the most recent case, Jones v. Dirty World Entertainment Recordings (2014), the Court of Appeals for the Sixth Circuit ruled that “immunity under the CDA depends on the pedigree of the content at issue.”
A website operator can simultaneously act as both a service provider and a content provider. If a website displays content that is created entirely by third parties, then it is only a service provider with respect to that content–and thus is immune from claims predicated on that content. But if a website operator is in part responsible for the creation or development of content, then it is an information content provider as to that content–and is not immune from claims predicated on it.
Section 230 “preserves a number of potential claims,” according to Attorney General Hood’s court filing, including “claims brought under state law … and a number of distinct immunity exceptions.”
A highly fact-specific analysis is needed to assess Google’s role and determine whether or not it’s conduct “crosses the line between immunized and actionable,” but as another amicus brief submitted by former Solicitor General Paul D. Clement on behalf of the Digital Citizens Alliance and others in support of Attorney General Hunt points out, that wouldn’t be possible.
The district court’s decision to shut down the investigation thus leaves law enforcement officials in an impossible position: the district court relied on the CDA to prohibit the Attorney General from uncovering the very facts needed to determine whether the CDA applies in the first place.
The amicus brief for the 40 state attorneys general objects to the fact that federal court jurisdiction was invoked prematurely, claiming that this matter should have been handled as a “routine discovery dispute” in the state courts.
This is a case about the authority of state Attorneys General to exercise one of their fundamental powers: the ability to investigate potential violations of state law.
This is also a case about whether CDA immunity is going to become unlimited notwithstanding the fact that Section 230 says “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”
Related: Secret conspiracy to revive SOPA?