jim hood – Techdirt (original) (raw)

State Attorneys General Really Want To Go After Big Internet Companies; But Claim It's About Privacy, Not Bias

from the we'll-see... dept

We’ve written a few times about how Attorney General Jeff Sessions’ plan to meet with State Attorneys General about going after big internet companies for perceived political bias was a clear First Amendment problem. He still held the meeting earlier this week, and it appears that at least some of the attendees agreed that targeting how the platforms present content was likely a non-starter, even if Sessions apparently kept trying to raise it as an issue. From a Washington Post report that quotes a few people who were in attendance:

Attorney General Jeff Sessions opened the meeting by raising questions of possible ideological bias among the tech companies and sought to bring the conversation back to that topic at least twice more, according to D.C. Attorney General Karl A. Racine.

Of course, the fact that the others in attendance mostly pushed past the question of political bias isn’t exactly good news for the internet platforms, as the AGs apparently focused on other ways they could and should target the companies:

?We were unanimous. Our focus is going to be on antitrust and privacy. That?s where our laws are,? Jim Hood, Mississippi?s attorney general, said in an interview.

Of course, it seems like almost journalistic malpractice to quote Jim Hood talking about going after social media platforms without mentioning the fact that he was the centerpiece of a the conspiracy by the top movie studios to attack Google with nonsensical complaints about illegal things he found while doing searches on Google. If you don’t recall, the Sony hack revealed a plot by the legacy movie studios to have their lawyers effectively run an investigation for Jim Hood — and even the NY Times revealed that his eventual subpoena to Google was written by the MPAA’s lawyers. A judge reviewing Google’s legal fight with Hood noted that it seemed pretty clear that Hood’s actions were done in “bad faith.” So… consider me at least marginally skeptical that Hood is an objective voice on what is and is not appropriate for a state Attorney General to investigate regarding the big internet platforms.

Obviously, if there are real antitrust violations, then that’s a valid issue to explore. But, so many of the attacks themselves seem to be a hell of a lot more “politically biased” than any of the claims about how the internet companies themselves are politically biased.

And while there was some talk about the privacy practices of the various platforms (which, while they may be concerning, it’s not clear how any of them violate any laws…), some of the talk also involved an astounding incomprehension of the encryption discussion. And, for that, we’ll go back to Jim Hood again:

For other states, the issue was the tech industry?s relationship with law enforcement. That included talk about Apple and ?how we in law enforcement depend on cellphones.? Hood said that Apple has ?waved at us and didn?t use all their fingers? in its handling of encryption.

That is not at all an accurate portrayal of what happened. Apple was making sure that everyone’s information was safe by using strong encryption. The FBI sought to undermine that safety by demanding that Apple make a massive, and very dangerous, change to its software.

Indeed, it’s quite incredible for Hood to bring this up in the context of the AGs discussing “privacy” concerns about how the big tech companies handle data. If you want them to protect data, you want them to use strong encryption. Yet, here, Hood is whining that Apple dared to actually protect people’s privacy.

So… if tech companies actually protect people’s privacy with strong encryption, they get yelled at and threatened with legal action by Attorneys General. And if they don’t protect people’s privacy… they get yelled at and threatened with legal action by Attorneys General. Just what exactly are they supposed to do?

Again, it is entirely possible that these companies have violated various laws. Perhaps they’re in violation of antitrust laws, though the evidence there is lacking so far. But, from everything that’s been said coming out of this meeting, it does not inspire much confidence that there are reasonable and objective reasons for taking legal actions against these platforms. Instead — and this is all too typical for state AGs — there appears to be a lot of grandstanding and bluster without much substance.

Filed Under: antitrust, encryption, first amendment, free speech, internet, jeff sessions, jim hood, privacy, social media
Companies: apple, facebook, google

Is Hollywood 'Exploiting' Anti-Trafficking Organization To Support SESTA?

from the not-a-good-look-guys dept

We’ve been a bit perplexed about how much momentum SESTA has. As explained, it’s a bill that is called the “Stop Enabling Sex Traffickers Act” but it has many serious problems that could impact just about any online service, even if they have no idea that they’re being used to support sex trafficking. Also, there’s some aspect of moral panic to all of this, as the actual statistics suggest that the size of the sex trafficking problem is not nearly as big as many politicians and organizations claim. That’s not to say it’s not a problem — because clearly it is a problem, and an important one. But it does suggest that broad-brush solutions with massive consequences to the entire internet should be reviewed a bit more carefully.

Indeed, as we’ve suggested, the way SESTA is currently structured, there appears to be a high likelihood that it would make the sex trafficking problem worse, by making it prohibitively risky for internet platforms to seek out and report to the authorities evidence of trafficking on their platforms. This is why a whole bunch of experts and organizations focused on stopping sex trafficking have all spoken out against SESTA, saying it’s the wrong solution. Freedom Network USA, which works to reduce trafficking around the US made this point clearly:

It is important to note that responsible website administration can make trafficking more visible?which can lead to increased identification. There are many cases of victims being identified online?and little doubt that without this platform, they would have not been identified. Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims. When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances.

Similarly, the Sex Workers Outreach Project (SWOP) has spoke out against SESTA, calling it a “disguised internet censorship” bill.

The Stop Enabling Sex Trafficking Act or SESTA, S. 1963, however cleverly titled, is not at all what it claims to be. It boasts of being the answer to uncovering and punishing those engaged in sex trafficking online but what it actually is about is internet censorship. It is an attempt to remove the protection websites are currently offered under Section 230 of The Communications Decency Act. Section 230 is in place to uphold freedom of expression on the internet and protects websites from being liable for what a third party might post outside of their knowledge. If this bill passes, any person or business online could be subject to civil or state penalties if the authorities ?believe? there is any trafficking or condoning of trafficking on your site. How is that determined? What activities will they consider illegal online? What about consenting adults engaging in sexual online courtship? What about our favorite fetish and cruising sites? What about individuals who enjoy posting nude or nude implied photos of themselves online? Would we then have to be worried about our naked photos being considered illegal solicitation?

But what about the groups supporting the bill? Well, we already looked at one group, that saw SESTA as a stepping stone to banning all porn. But I also wanted to look a little more closely at the National Center for Missing and Exploited Children — NCMEC. NCMEC has a very good reputation, and the organization has done a lot of really amazing work. While it’s a private non-profit, it was created by Congress and gets a ton of government funding. NCMEC has, at times, succumbed to moral panics and exaggerated threats around “stranger danger” and such — but for the most part, it’s a pretty respectable organization.

I was a bit surprised, then, to see its General Counsel, Yiota Souras, as one of the people testifying before Congress about SESTA recently, insisting that the bill is narrowly tailored (it’s not) and that it was unlikely to negatively impact most companies online (it would).

But, then another story caught my eye. Recently, the powerhouse DC lobbying firm, American Continental Group, announced that it had signed up a bunch of new clients, including News Corporation, the owner of 20th Century Fox.

American Continental Group has signed another five clients: Cognizant Technology Solutions, Diebold Nixdorf, News Corporation, the Onex Corporation and Textron. The firm has signed more than 30 new clients this year, helped by the reputation of David Urban, a lobbyist there who?s seen as close to Trump?s administration after serving as a senior adviser on Trump?s campaign and helping him win Pennsylvania. (Urban?s name was mentioned as a potential replacement for Reince Priebus as White House chief of staff earlier this year.)

Manus Cooney, Chris Israel and Urban will lobby for News Corporation on intellectual property issues, according to the filing.

The name Manus Cooney stood out to me, because it turns out… he’s Chairman of the Board of NCMEC:

And, first of all, good for him. It’s good to see that he’s on the board of non-profits and helping make the world a better place. But, it at least makes me wonder if there isn’t something of a conflict here — and perhaps one that explains NCMEC’s over-enthusiastic support of such a bad bill. Yes, Cooney just took on News Corp as a client, but the firm also basically lists every other big Hollywood/legacy copyright player as a client. Viacom, Time Warner, the Authors Guild, Comcast (owners of NBC Universal), the Copyright Alliance, the Music First Coalition (an RIAA front group), Random House, Reed Elsevier, SoundExchange (an RIAA spinoff), Songwriters Guild of America, and others.

And it’s no secret that many of those organizations are supporters of SESTA, some more vocally than others. News Corp’s 21st Century Fox has directly come out in support, for example.

Hollywood really wants SESTA to pass for a variety of reasons, nearly all of them focused on its weird visceral hatred of one company: Google. You’ll recall, of course, how the Sony Pictures hack a few years back revealed the existence of Project Goliath — in which the various Hollywood studios colluded to try to support doing anything to harm Google. The key part of the Project Goliath strategy was to convinced state Attorneys’ General to target Google for basically anything bad found on the internet. Its first “success” story was getting Mississippi Attorney General Jim Hood to subpoena Google and claim it was responsible for all the bad stuff people found on Google — including counterfeit pharmaceuticals, sex trafficking and, of course, copyright infringement.

It was, of course, later revealed that the letter that Hood sent to Google had actually been authored by the MPAA’s outside lawyers. Google pushed back against all of this, and a judge told Hood that nearly all of his attack was barred by CDA 230 (it also noted that the subpoena appeared to have been done in “bad faith.”)

Now, let’s pull all of this together: a big part of Hollywood’s plan to handicap Google was to allow state Attorneys General to attack Google for bad stuff that people could find via Google. That flopped, in large part because of CDA 230, which protects sites from the actions of third parties. Now, along comes SESTA, whose entire point is to punch a giant hole in CDA 230, such that if a site is used to “facilitate” trafficking, the site suddenly loses its immunity. Another key point in SESTA: saying that claims brought by states Attorneys General are no longer immune from action under CDA 230. Hmmmmmm…

And, then, suddenly we have NCMEC step up to make clearly misleading to downright false statements in support of SESTA at the very same time that NCMEC’s chairman of the board is pushing to get a lobbying deal with News Corp. — one of the leaders of the anti-Google effort, and it raises at least some questions about whether NCMEC’s support of SESTA is really about saving children… or helping Hollywood attack the internet.

Filed Under: cda 230, intermediary liability, jim hood, lobbying, manus cooney, sesta, yiota souras
Companies: american continental group, google, ncmec, news corp

Google Hating Mississippi Attorney General Sues Company… With Ammo From EFF

from the well,-this-could-get-interesting dept

We’ve written a fair amount about Mississippi Attorney General Jim Hood over the years, with a major focus on his factually-challenged hatred of Google, that may or may not be influenced by Hood’s heavy funding from Hollywood. What is known, however, is that the MPAA, quite clearly, decided to use Hood as a pawn in its campaign to attack Google. The Sony Pictures hack from a few years back revealed a detailed plan, put together by the MPAA, to funnel money and resources to Hood solely for the purpose of attacking Google with questionable legal claims. Hood’s first attempt to do so (with letters that were literally written by the MPAA’s lawyers) effectively failed, following a legal challenge from Google.

Hood, of course, is not one to give up, so he’s back again with a lawsuit filed against Google, arguing that the company has violated student privacy with its Google Apps for Education. If this sounds vaguely familiar, here’s the twist: this is the same basic complaint that the EFF complained about in a filing to the FTC a year and a half ago. The EFF, of course, actively fought Jim Hood in his initial attack on Google, so it’s a neat trick by Hood (and, perhaps, the MPAA?) to now use the EFF’s own legal arguments against Google.

As I stated back when the EFF filed its complaint, even though we frequently agree with the EFF on things (and even though we wish Google was better on privacy), I’m still struggling to see what the privacy violation is here. The key issue is that Google signed a pledge — the Student Privacy Pledge — which says that when offering its apps to schools, it will safeguard student’s privacy in some very clear ways. Multiple third parties, including the Future of Privacy Forum — who helped create the very pledge Google is accused of violating — has looked at Google’s G Suite for Education and concluded that it complies with the pledge. There are no ads in the G Suite for Education, which is the main privacy issue. But the EFF’s complaint was that by sync’ing student accounts, it’s storing information about the students in violation of the pledge. But the sync feature is just to allow students to be able to log in from multiple devices and have the same experience — and Google insists that none of that information is ever used for advertising or other datamining. If it turns out that’s not true, then there are issues. But if Google is being accurate here, I’m just don’t see where the problem is.

As far as I can tell, the FTC has done nothing with the EFF’s complaint. But now it appears that (without naming EFF), Jim Hood has decided to jump in to the legal waters and claim that Google is violating its pledge on student data privacy.

It feels like someone in Hood’s office (again, perhaps with some nudging from friends at the MPAA) decided that it would be a neat trick to use the EFF’s own complaint against Google to go after Google yet again. It most likely will mean that EFF won’t oppose Jim Hood as it did last time around. However, taking a step back and looking at the actual complaint, it’s difficult to see how it will stick. As stated above, the organizations that created the very pledge in the first place have claimed that EFF is wrong (and are now saying that Hood is wrong), and that Google complies with the pledge itself. This also seems like a weird issue for Hood to focus on for any other reason than because he wants to attack Google. In fact, it’s questionable how this is anything but an Attorney General using his position for something of a personal vendetta against a company he dislikes.

It will be interesting to see how Google responds to this lawsuit… and how far it can actually go.

Filed Under: apps for education, jim hood, mississippi, privacy, privacy pledge, students
Companies: eff, google

Mississippi Attorney General Jim Hood Withdraws Google Subpoena As Google Appeals Court Ruling

from the not-over-yet dept

Earlier this month, the Fifth Circuit appeals court tossed out the lawsuit that Google had filed against Mississippi Attorney General Jim Hood, following Hood’s decision to send a subpoena that was written by the MPAA’s lawyers, as part of a plan by the MPAA to pay money to get state Attorneys General to attack Google.

While some in the legacy copyright world painted the ruling in the Fifth Circuit as a “victory” for Jim Hood, and a loss for Google, anyone reading the details would recognize it was anything but that. The court made it pretty clear that Hood’s subpoena was ridiculous and had no chance of surviving a judicial review… but dumped the case on a procedural issue, arguing that since Jim Hood had not yet taken any action concerning Google’s unwillingness to respond to parts of the subpoena, there was nothing to dispute. Basically, the court said “wait until Hood actually tries to force you to do something… and then we’ll tell him his subpoena is bogus.”

Google has now asked the appeals court to reconsider throwing out the case, but also reveals an interesting tidbit in the footnotes: it appears that after the ruling, Hood withdrew the entire subpoena:

If you can’t read that, it says:

By letter of April 22, 2016, Hood withdrew the subpoena that Google had challenged.

That should be a pretty clear indication that this wasn’t the victory some of the MPAA/Hood supporters have been claiming. Of course, Google does think it’s entirely possible that Hood will issue an updated subpoena, which is part of the reason that it’s asking the court to review the ruling. In a later footnote it points out that along with the withdrawal letter, Hood did warn them that the letter requiring Google to retain documents for possible litigation “remains in effect.”

As for the meat of Google’s petition, the company argues that the court was wrong to dump the entire lawsuit, pointing out that there were two claims in the original filing — one for injunctive relief (i.e., blocking Hood from doing anything with the subpoena) and one for declaratory judgment (basically saying that the company was doing nothing wrong). The company says that the ruling tossing the lawsuit just referred to the injunctive relief question, not the declaratory judgment — and further makes the argument that there was a real risk of Hood pursuing unconstitutional measures, meaning that a lawsuit for declaratory judgment is perfectly reasonable.

The panel directed the district court to dismiss the entire case as unripe because Google had not shown an ?imminent threat of irreparable injury.? … But that standard does not apply to Google?s claims for declaratory relief regarding threatened enforcement action. Under settled law, such claims ?need cross only a low threshold; the Supreme Court requires no more than a ?credible threat of prosecution,? one that is not ?chimerical,? or ?imaginary or speculative.?? …. Google met that standard. Accordingly, Google requests that the panel amend its decision to permit Google?s claims for declaratory relief regarding threatened enforcement action to proceed.

Of course, it’s also possible that the court may argue that even if that’s true, the whole thing is moot now that Hood has withdrawn the subpoena.

Google tries to address that as well, but I’m not convinced the court will buy it.

In addition to identifying specific conduct he deemed unlawful, Hood took concrete steps that reinforced the peril Google faces. He wrote the company?s outside counsel requesting that Google ?preserve potentially relevant information that may be used as evidence in pending or reasonably foreseeable litigation.?… Hood gave a presentation to fellow attorneys general that detailed Google?s alleged wrongdoing, explained the elements of ?Possible Causes of Action,? and offered theories to overcome Google?s anticipated defenses.

It’s in this section that Google includes the footnote noting that Hood told the company that the preservation letter was still in effect, suggesting that he may still intend to go after Google.

Still, it looks like all the MPAA got for the hundreds of thousands of dollars it threw at this was making Mississippi’s Attorney General look foolish, and showing just how far the MPAA will go to try to attack Google, rather than adapt to the internet.

Filed Under: 5th circuit, declaratory judgment, free speech, jim hood, mississippi, section 230, subpoena
Companies: google, mpaa

Appeals Court Says Google Must Take Further Abuse From AG Jim Hood Before It Can Challenge Hood's Abusive Behavior

from the you-must-get-fucked-a-little-longer-before-we-can-examine-complaints-of-chafing dept

Towards the end of 2014, Google filed for an injunction against Mississippi Attorney General Jim Hood, whose close ties with the MPAA had led to a sustained campaign of harassment over Google’s supposed lack of interest in policing the entire internet for infringing material.

Early in 2015, the district court granted Google’s requested injunction against Hood’s 79-page subpoena, which the court noted was a “burdensome fishing expedition” that went beyond the bounds of what a state AG could actually demand. Not only that, but the court noted that many of Hood’s actions were blocked by Section 230 of the CDA because the content in question had been uploaded by third parties.

Unfortunately for Google, the Fifth Circuit Appeals Court has reversed the lower court’s decision and vacated the injunction. It’s being portrayed as a victory for the MPAA and its kept man, Jim Hood, but those actually reading the decision will find the reversal is just procedural. TL; DR: Google must face additional legal harassment from Jim Hood before it can challenge said legal harassment in a federal court.

We conclude that the district court erred in granting injunctive relief because neither the issuance of the non-self-executing administrative subpoena nor the possibility of some future enforcement action created an imminent threat of irreparable injury ripe for adjudication.

The decision also notes that it is passing no judgment on Hood’s subpoena nor his other actions against Google.

We express no opinion on the reasonableness of the subpoena or on whether the conduct discussed in the parties’ briefs could be held actionable consistent with federal law.

Which works out in Hood’s favor, as a great deal of the opening of the opinion details the many, many actions Google undertakes to address online piracy — including its swift responsiveness to Hood’s increasingly ridiculous demands. [emphasis added]

Google has made some changes in response to Hood’s investigation. It created a “trusted flag” mechanism through which Google promptly reviewed videos Hood’s office complained about. After being trained on that tool, Hood’s office flagged seven videos, six of which Google quickly took down. When asked by the district court, Hood’s counsel could not identify any investigatory efforts related to the videos his office flagged. His office has nevertheless asked that Google immediately remove flagged videos pending review and “consider implementing a more comprehensive content evaluation process.”

As for the broad subpoena the company is challenging, Google has already turned over 100,000 pages of documents in response. These documents showed the content targeted by Hood’s office (but not, notably, by any investigation) was generated by third parties. This still wasn’t enough for Hood, who refused to narrow the scope of the subpoena — leading directly to Google’s injunction request and the district court’s grant of this request.

The Appeals Court — while reversing the injunction — notes that Hood’s actions against Google do present possible First Amendment issues, but nothing about the actions taken by both parties to date brings it to the level where it feels it can uphold Google’s request. The court similarly finds Hood’s attempt to force the federal court system to resolve this (in his favor) by denying Google the right to bring its challenge of his actions to a federal court — either at this point or at any point in the future.

We first reject Hood’s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction. Federal courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. We apply the “well-pleaded complaint rule” to determine whether a suit arises under federal law, asking “whether the plaintiff has affirmatively alleged a federal claim.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328 (5th Cir. 2008). As a corollary, “anticipated or potential defenses, including defenses based on federal preemption, do not provide a basis for federal question jurisdiction.” Id. Here, Google brings four claims under 42 U.S.C. § 1983 alleging violations of the United States Constitution and federal statutory law. This satisfies the well-pleaded complaint rule.

Focusing on Google’s claims for declaratory relief, Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong, as illustrated by our recent decision in NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015)

In the end, it boils down to Hood having to make some forward progress in his “investigation.” As it stands now, Google is on the receiving end of an incredibly broad subpoena and has complied with portions of it. It has challenged the subpoena based on anticipated actions by Hood in the future if it fails to comply with all aspects of it, but Hood has not moved forward with any punitive actions as of yet. Until he does, the court is unable to support an injunction against Hood.

The statute under which this administrative subpoena was issued gives Hood no authority to enforce it; instead, if the recipient refuses to comply, the Attorney General “may, after notice, apply” to certain state courts “and, after hearing thereon, request an order” granting injunctive or other relief and enforceable through contempt.

[…]

Hood has not brought an enforcement action. And Google does not contest Hood’s assertions that it could raise its objections to the administrative subpoena if Hood ever brings an enforcement proceeding. The only real difference is that we have before us a state, not federal, subpoena. But we see no reason why a state’s non-self-executing subpoena should be ripe for review when a federal equivalent would not be. If anything, comity should make us less willing to intervene when there is no current consequence for resisting the subpoena and the same challenges raised in the federal suit could be litigated in state court.

In this as in any context, equitable relief is only appropriate when necessary to avoid an imminent irreparable injury. Because the administrative subpoena is not ripe for review, we hold that the district court should have rejected Google’s pre-enforcement challenge.

This ruling means Hood has to make the next move. Until he does, Google cannot seek an injunction as it cannot claim imminent irreparable injury when all Hood has done to this point is be an officious pain in the ass. If he seeks legal recourse for Google’s failure to comply, Google can challenge the act with an injunction. Until then, both parties can do little more than glare at each other angrily. The MPAA thinks this is a win. It’s not even a tie, and the court’s depiction of the events leading up to the failed injunction request are hardly favorable to Jim Hood.

Filed Under: 5th circuit, injunctions, jim hood, legal process, mississippi, subpoenas
Companies: google

Smoking Gun: MPAA Emails Reveal Plan To Run Anti-Google Smear Campaign Via Today Show And WSJ

from the editorial-independence? dept

If you talk to the reporters who work for various big media companies, they insist that they have true editorial independence from the business side of their companies. They insist that the news coverage isn’t designed to reflect the business interests of their owners. Of course, most people have always suspected this was bullshit — and you could see evidence of this in things like the fact that the big TV networks refused to cover the SOPA protests. But — until now — there’s never necessarily been a smoking gun with evidence of how such business interests influences the editorial side.

Earlier this month, we noted that the Hollywood studios were all resisting subpoenas from Google concerning their super cozy relationship with Mississippi Attorney General Jim Hood, whose highly questionable “investigation” of Google appeared to actually be run by the MPAA and the studios themselves. The entire “investigation” seemed to clearly be an attempt to mislead the public into believing that it was somehow illegal for Google’s search engine to find stuff that people didn’t like online. A court has already ruled that Hood pretty clearly acted in bad faith to deprive Google of its First Amendment rights. As the case has continued, Google has sought much more detail on just how much of the investigation was run by the MPAA and the studios — and Hollywood has vigorously resisted, claiming that they really had nothing to do with all of this, which was a laughable assertion.

However, in a filing on Thursday, Google revealed one of the few emails that they have been able to get access to so far, and it’s stunning. It’s an email between the MPAA and two of Jim Hood’s top lawyers in the Mississippi AG’s office, discussing the big plan to “hurt” Google. Beyond influencing other Attorneys General (using misleading fake “setups” of searches for “bad” material) and paying for fake anti-Google research, the lawyers from Hood’s office flat out admit that they’re expecting the MPAA and the major studios to have its media arms run a coordinated propaganda campaign of bogus anti-Google stories:

Media: We want to make sure that the media is at the NAAG meeting. We propose working with MPAA (Vans), Comcast, and NewsCorp (Bill Guidera) to see about working with a PR firm to create an attack on Google (and others who are resisting AG efforts to address online piracy). This PR firm can be funded through a nonprofit dedicated to IP issues. The “live buys” should be available for the media to see, followed by a segment the next day on the Today Show (David green can help with this). After the Today Show segment, you want to have a large investor of Google (George can help us determine that) come forward and say that Google needs to change its behavior/demand reform. Next, you want NewsCorp to develop and place an editorial in the WSJ emphasizing that Google’s stock will lose value in the face of a sustained attack by AGs and noting some of the possible causes of action we have developed.

In other words, Jim Hood and the MPAA were out and out planning a coordinated media attack on Google using the editorial properties that supposedly claim to have editorial independence from the business side. Notice that with the WSJ piece, they flat out admit that the editorial will be based on the ideas that “we” have developed. If you work for the WSJ, your editorial independence just got shot down. Remember when CBS stepped in and interfered editorially with CNET for giving an award to Dish at the same time that CBS was in a legal fight over that same device? That resulted in reporters quitting.

This is worse.

This is an out and out case where the MPAA is admitting to a plan whereby it will use mainstream media properties to run bogus and misleading stories to “attack” Google, to further the MPAA’s (believed, but misleadingly so) business interests. Is this really how the Today Show and the WSJ pick their editorial topics?

The “plan” goes even further after that, getting the MPAA to find (and almost certainly pay for) a lawyer to work with the “shareholder” previously identified to file legal filings against Google.

Following the media blitz, you want Bill Guidera and Rick Smotkin to work with the PR firm to identify a lawyer specializing in SEC matters to work with a stockholder. This lawyer should be able to the [sic] identify the appropriate regulatory filing to be made against Google.

As Google notes in its legal filing about this email, the “plan” states that if this effort fails, then the next step will be to file the subpoena (technically a CID or “civil investigatory demand”) on Google, written by the MPAA but signed by Hood. As Google points out, this makes it pretty clear (1) that the MPAA, studios and Hood were working hand in hand in all of this and (2) that the subpoena had no legitimate purpose behind it, but rather was the final step in a coordinated media campaign to pressure Google to change the way its search engine works. It’s pretty damning:

The document thus shows that the CID was not the foundation of a legitimate investigation?rather, it was a ?final step? that would be issued only ?if necessary? to further pressure Google to capitulate to the demands of AG Hood and his supporters.

The court has yet to rule on what else Hollywood needs to turn over, but just from what’s coming out already, serious questions are being raised (1) about Jim Hood and his office and what they were up to as well as (2) the editorial independence of the media arms of the MPAA studios, including both NBCUniversal (“the Today Show”) and NewsCorp. (the Wall Street Journal).

Filed Under: editorial independence, jim hood, media, mississippi, news, smear campaign, today show, wsj
Companies: comcast, google, mpaa, nbc universal, newscorp

Corruption Watch: State Attorneys General Line Up Behind Jim Hood, Support Power To Attack Enemies Of Big Corporate Donors

from the gee,-I-wonder-why... dept

A large group of state Attorney Generals has now stepped into the legal fight between Mississippi Attorney General Jim Hood and Google. As we’ve explained a bunch, Hood went after Google with an investigation and detailed subpoena that was funded and written by the MPAA itself. In response to this, a federal court has already called out Hood’s actions, noting that there was “significant evidence of bad faith” on the part of Hood as he attempted to unconstitutionally hold Google responsible for anything bad that its search engine found on the internet.

We’ve written plenty about issues with state Attorneys General. The state Attorney General position is frequently seen as the stepping stone to becoming state governor or US Senator. State AGs have a reputation as being grandstanding tools, focusing on getting big headlines over actually enforcing the law. In fact, they often will focus on grandstanding even when there is no legal basis whatsoever. The most damning account of this is one we wrote about five years ago, in which a group of AGs teamed up to shake down Chris Tolles, the CEO of online forum site Topix. The story is incredible and well worth reading. You’ll see how a bunch of state AGs kept putting out press releases, blaming Topix for things with no legal basis. Tolles would go talk to them, explain how the company works in order to build understanding, and the state AGs would then, immediately, turn around and take what he told them, totally misrepresent it, and issue another press release twisting what he’d said into implying that the company was up to no good.

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That’s right. Another press release. This time from 23 states’ Attorney’s General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.

In short, to state AGs, no opportunity to issue a press release slamming a tech company is too good to miss. We’ve seen it done against Twitter, Facebook, Craigslist, small social networking sites, MySpace, ISPs, and video game companies. Frequently there is no actual legal basis for this at all. They just issue completely misleading and out-of-context press releases that slam companies, frequently because people who are up to no good use those tools and the companies haven’t magically weeded out bad actors. In fact, the state AGs have become so drunk with the power of all this that they’ve actually pushed very strongly to change federal law to give them more power to blame websites for the actions of their users, by exempting their investigations from Section 230 of the CDA (the law that says you can’t blame sites for actions of their users).

A few years ago, seeing all these grandstanding plays by state AGs, some enterprising companies began to realize that this was a great way to attack competitors or companies they didn’t like. And thus, as the NY Times covered last fall, a huge lobbying effort was set up by companies to woo state AGs with lobbying dollars, and push them to attack companies they didn’t like. Microsoft, for example, used this to shake down foreign companies over copyright claims, even though copyright is a federal issue, rather than a state one. The NY Times article is rather eye-opening. It details how much lobbying efforts are now targeting state AGs, and how ridiculous it looks. It often involves ex-state AGs, lavish fundraisers and (quite often) issues that are completely unrelated to the state AGs mandate. Laws against corporate influence — including things like having to register to lobby and preventing revolving door issues — often don’t apply to lobbying state AGs, and so the money and influence has come pouring in, which is making state AGs quite happy.

All this is prelude to the amicus curiae brief (friend of the court) filed by 40 state AGs in the appeal of that ruling against Hood. If you think that the state AGs are going to give up their new lobbying gravy train or their power to unconstitutionally shake down big companies, you’ve got another thing coming. The entire brief is one of “Hey we need this power, because FUD!” It starts out with a heartfelt plea for the continued right to “investigate potential violations of state law.” Except, of course, that’s almost never what these cases are about. Often there are no violations of law at all, but rather an attempt to blame companies for actions of their users — which again is protected from liability.

If allowed to stand, the District Court?s March 27, 2015 order (the ?Order?) enjoining the Mississippi Attorney General?s enforcement of his own subpoena would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry. With the Order as a guide, any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be filed civil claims and file a preemptive lawsuit in federal court against state law enforcement authorities. Such an outcome would undermine Attorneys General?s powers, granted to them by state constitutions and state statutes, to protect the general citizenry from violations of state law. It would also flood the federal courts with what amount to state-law discovery disputes. And it should not be countenanced by this Court.

What a bunch of hogwash. If there’s a legitimate violation of state law, then such cases will quickly get dumped. In this case, it was clear from the beginning that the investigation (again, paid for and run by the MPAA rather than Hood’s office) had nothing to do with “violations of state law.” It was, as revealed by the Sony emails, entirely about trying to attack Google. That’s why the court ruled in Google’s favor, noting directly that Hood’s proceeding “was brought in bad faith” and “with the purpose of harassing” Google in an effort to “coerce Google to comply” with unconstitutional demands to remove material from its website (in violation of the First Amendment).

The only situations in which Google’s lawsuit provides a “roadmap” to others is if these state AGs are doing a similar attempt to use their power to demand the censorship of First Amendment-protected content at the behest of corporate interests. If they’re not doing that, they don’t have much to worry about. But, I guess, if you look at all those examples above, those kinds of bogus actions are an important part of some AGs’ press and fundraising strategies. No wonder they’re so loathe to give it up.

The state AGs’ brief continually argues that state AGs should have almost unlimited power to investigate anything, because that’s a huge source of their power, but it’s equally the source of the kind of corruption that the NY Times article spoke about:

In furtherance of this paramount duty, Attorneys General have broad authority under the common law and/or state statutes1 to investigate potential violations of state laws within their jurisdiction, particularly state consumer protection laws.

But that broad authority does not trump the First Amendment and in no way should allow state AGs to launch massive investigations funded for and run by corporate entities into companies those entities don’t like — and whose sole purpose appears to be to violate the First Amendment rights of those targeted. This is a pretty basic and obvious distinction, and the fact that these state AGs play dumb about it is ridiculous, though not all that surprising.

The filing goes on and on about the importance of “civil investigative demands” (CID) — the kind of subpoena-like tool that the MPAA wrote for Hood to send to Google. And no one doubts the importance of such tools. No one is questioning that. What’s being questioned in this case is the ability for a third party representing corporate interests to write such a CID, give it to a state AG, and have that state AG send it — especially when the clear intended purpose of that CID is not to investigate any violation of state law, but rather to force a company to censor content in violation of the First Amendment. Again, these distinctions are pretty obvious and the state AGs’ brief ignores them all.

The state AGs also attack the fact that Google went to a federal court here, arguing that since Hood hasn’t yet filed suit, Google has no right to go to court first — which is just wrong. Not only has Hood made his intentions clear, Google is noting that it is protected under federal law from the crux of this investigation (to which the court agreed) and thus it is perfectly reasonable to seek an injunction by going to court.

And, of course, the state AGs try to attack Section 230. As we already noted, the state AGs have been lobbying strongly for a special exemption to Section 230 that would allow state AGs to ignore it. And here, it doesn’t take them long to refer to the one case that has limited the interpretation of Section 230, the infamous “roommates.com” case, which argued that the site was not protected for content that it created itself (in that case, involving pull down options that could be seen as violating fair housing laws). This ruling is cited by nearly everyone seeking to undermine Section 230, and in nearly every case it has failed. That is one tiny narrow exemption from Section 230 in a very specific case, totally unrelated to the issues that Hood (er… the MPAA) are arguing in the CID that was sent. But, no matter, the state AGs see a tiny, tiny loophole and attempt to drive a Mack truck through it:

Google attempts to avoid this jurisdictional bar by arguing, in part, that it is entitled to immunity under the Communications Decency Act for any state law consumer protection claims the Attorney General may bring against it. Notably, however, the immunity the CDA affords internet service providers is not absolute. Although the CDA immunizes an interactive computer service from liability for content posted by a third party, it does not provide immunity for content or speech properly attributable to the service provider itself. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (?Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties[.]?) …. Accordingly, the Mississippi Attorney General is entitled to investigate Google?s activity to determine whether Google may be responsible for web content violative of Mississippi?s Consumer Protection Act. Indeed, it is unfair to ask the Attorney General to respond to Google?s contention that the CDA cloaks it with immunity when Google is withholding, and now has a preliminary injunction permitting it to withhold, the very materials that will allow the Attorney General to evaluate whether the CDA applies to Google?s acts and practices.

In other words, because of the very narrow and specific Roommates.com ruling, state AGs should be able to demand all sorts of stuff from companies, even if everything they’re targeting is protected by Section 230, just in case the fishing expedition happens to turn up something not protected by Section 230. That interpretation effectively eviscerates the entire point of Section 230 protections and would allow the state AGs to shake down companies over actions they had nothing to do with. Such an interpretation is not just dangerous, it basically would open the floodgates to more of these bogus corporate-run and corporate-funded investigations.

The state AGs also present a ridiculous and misleading claim of “What’s the big deal here, Google can just respond to the subpoena and it’s not required to change any practices…”

Yet, here the Attorney General?s Subpoena merely represents an investigation. Responding to the Subpoena itself would not force or coerce Google to change its practices and procedures or otherwise abandon its rights. And, in fact, Google has not changed its behavior based on the Subpoena in order to eliminate the threat of potential prosecution–instead, it seeks to eliminate that threat through its lawsuit and the preliminary injunction.

But that ignores the entire history of how the state AGs operate. Again, read that story about Chris Tolles and Topix and his interactions with the state AGs. Despite no legal basis whatsoever, the state AGs constantly used any information he gave them in out-of-context and misleading press releases, creating a massive wave of bogus public pressure to force him to give in or just keep fighting more bad publicity and more bogus threats.

Whatever happens in this particular case, it seems abundantly clear that many state AGs are out of control and somewhat drunk on the power of the office they hold — which has created a situation that can only be described as corrupt. They have tremendous investigatory powers to demand information, and yet there are almost no real limits on how they can effectively sell that power to third parties in the form of fundraisers and even handing over the keys to the investigation to those third parties themselves, as demonstrated by the MPAA writing out the entire CID that Hood sent Google. It’s not surprising that fellow state AGs don’t want to give up such power, but hopefully the court sees through this kind of power grab and puts an end to these kinds of bogus “investigations.”

Nothing in this case would end the state Attorneys General legitimate investigatory powers. It would only serve to stop the abusive practice of allowing special interests to run clearly unconstitutional campaigns against companies they dislike by laundering them through state AGs offices — or to stop the AGs themselves from engaging in these kinds of grandstanding against companies by misrepresenting what’s happening and the law in order to get headlines. If the AGs want headlines and to present themselves as protecting the public, perhaps they could focus on actual law breakers instead.

Filed Under: attorney general, cda 230, censorship, copyright, corruption, grandstanding, jim hood, lobbying, mississippi, political power, states attorneys general

MPAA Argues That Sony Emails Shouldn't Be Used As Evidence In Google Lawsuit

from the oh-really? dept

We’ve already covered some of the details coming out in the flurry of legal filings in the dispute between Google and Mississippi Attorney General Jim Hood (helped along by the MPAA which financed and ran Hood’s investigation). However, there is one little tidbit mentioned towards the end in one of the MPAA’s many filings resisting subpoenas from Google to turn over internal documents. The MPAA’s lawyers at Jenner & Block not only argue that much of the material being requested is “privileged,” and thus allowing the requests will lead to lawsuits over the legality of those requests, but further argues that the emails in the Sony hack are similarly privileged and should not be available for use in lawsuits:

Quite apart from the policy concerns that arise if lawyers are allowed to use confidential documents first obtained by hackers, the fact that some privileged documents were published in the wake of the Sony hack will trigger subsequent litigation over privilege assertions. Privileged documents obtained by hackers and later published nevertheless remain privileged. Presumably, given Google?s apparent interest in the documents, Google will contest the privilege assertions.

This seems like a pretty longshot legal argument. It’s pretty typical in business settings that once documents are out there in the public, any legal restrictions on them vanish. The idea that these documents, widely discussed publicly and in the press, would magically be banned from use in a legal case that was brought on because of those revelations is a huge stretch.

Filed Under: evidence, jim hood, mississippi, privileged information, sony hack
Companies: digital citizens alliance, google, jenner & block, mpaa

Hollywood Resists Revealing Details Of Its Cozy Relationship With Mississippi AG Jim Hood, But Glimpses Come Out

from the buddy-buddy dept

The whole legal fight between Google and Mississippi Attorney General Jim Hood has been pretty nasty from the very beginning, but it’s been getting even nastier as it drags on. Even in many high stakes lawsuits involving large companies and the government, the filings tend to remain somewhat bland and low key. But this particular fight seems personal to many of the parties involved (going beyond just Google and Jim Hood to the MPAA and the studios it represents). If you don’t recall, for a few years now, Hood has been bizarrely blaming Google for the fact that people do bad stuff online, rather than understanding that a search engine isn’t responsible for the content that it finds. The reasons for Hood’s ignorance became a lot more clear after the Sony Hack, when internal emails revealed that Hood was acting as a puppet for the MPAA whose hand was shoved so far up Hood’s behind that it was a bit unseemly.

The MPAA’s lawyers ran the entirety of Hood’s “investigation.” Those lawyers actually wrote the subpoena that Hood sent Google (Hood merely added the opening and his signature). The studios paid for the investigation, and the program itself was explicitly designed not to protect anyone online but to bring down Google (dubbed “Goliath” in the documents). The MPAA hired Hood’s best friend, mentor and predecessor to lobby Hood on this… and (coincidentally, I’m sure), Hood hired the very same guy, Mike Moore, to help with the investigation — which should raise serious conflict of interest questions. As these details were revealed, Hood launched into a bizarre anti-Google rant that was both ill-informed and often flat out incorrect. He insisted perfectly legal things (a news site about dark markets) were completely illegal, he blamed Google for not doing things it actually had done, and he couldn’t seem to figure out the first thing about how the internet — or the First Amendment — actually work.

With this new info in hand, Google went to court to argue that Hood’s demands were illegal, and a clear attempt of abusing the power of his office to attack a business. The courts have overwhelmingly sided with Google up to this point — putting his demands (written by the MPAA) on hold and saying that it was clear Hood unconstitutionally acted in bad faith in violation of the First Amendment.

The judge also ordered Hood to cough up his communications with the MPAA — something Hood was refusing to do the last time we checked in on this case about two months ago.

Since then, there has been a flurry of activity in multiple courts as Google, Hood and the MPAA fight it out in increasingly emotional terms. As Hood tried to resist, Google opened up another front in this and sent subpoenas to the Hollywood studios directly for those same communications and more. The studios have resisted strongly, claiming that their own documents are unrelated and they’re not a party to the lawsuit. Google, however, has pointed out that since the MPAA was running the government’s investigation almost entirely, it seems reasonable to argue that that information should be disclosed:

Each Subpoenaed Party asserts “work product protection,” but none can identify any litigation they contemplated at the time the requested documents were created. They claim there is a “First Amendment privilege” shielding their activities from discovery, but they cannot explain how it applies here where they are engaged in lobbying government officials, where that lobbying is a matter of public record, and where their conduct is in no way likely to meet with government reprisal. And they assert “common and joint interest privileges” but cannot articulate any valid “interest” that creates or preserves a privilege. While some responsive documents might theoretically be subject to the attorney-client privilege, the Subpoenaed Parties have not collected or reviewed such documents, let alone provided a privilege log for them.

The studios then hit back angrily at these requests arguing that Google is going way overboard in asking for basically all of its anti-Google documents, even those it never actually sent to Hood (after finally agreeing that they would produce its communications with Hood):

The MPAA and Jenner have already agreed to produce all responsive documents they exchanged with Attorney General Hood prior to Google?s lawsuit; after all, only documents that Attorney General Hood actually saw could conceivably influence him. That should suffice if Google wants to probe the Attorney General?s motives.

Google filed the present motion because it insists on more. Google demands documents that the Attorney General never saw, and that instead include the internal deliberations of the MPAA, its communications with its members, and the legal advice of Jenner, as well as communications with others similarly aggrieved by Google?s conduct, on the misguided theory that such documents somehow are probative of Attorney General Hood?s intent. Moreover, Google?s demands impose very substantial burdens on the subpoenaed parties, not only because they require a wide-ranging search for documents, but more importantly because many of the documents are protected by the attorney-client and First Amendment associational privileges. Not only would the MPAA and Jenner be required to devote countless hours to the creation of privilege logs, but further time-consuming and expensive litigation with Google over the privilege assertions would be a near certainty.

Then, last week, Google hit back in a flurry of additional filings concerning the MPAA and Hood. Many repeat the same basic points, but it’s clear that the battle is getting angrier and angrier on all sides. You can sense the exasperation on the part of Google’s lawyers as they explain, again, that the studios are clearly trying to hide the details of their plan to use Hood to attack their company in violation of the Constitution:

The Honorable Judge Henry T. Wingate has ruled that Google is likely to succeed against AG Hood under Constitutional and federal law.

It is undisputed that the parties before the Court on this motion ? Twenty-First Century Fox, Inc. (?Fox?), NBCUniversal Media, Inc. (?NBC?), and Viacom, Inc. (?Viacom?) (collectively ?the Subpoenaed Parties? or ?the Studios?) ? played key roles in AG Hood?s unlawful conduct. The record already shows that as part of a secret plan called ?Project Goliath,? they spent hundreds of thousands of dollars lobbying state attorneys general to pressure Google to alter its search results and other products in service of their agenda on federal copyright issues. In connection with Project Goliath, lobbyists for the Subpoenaed Parties formulated AG Hood?s demands to Google and ghost wrote AG Hood?s talking points, letters and even the CID that prompted Google?s lawsuit and Judge Wingate?s injunction.

Despite this extensive involvement in the events giving rise to the underlying litigation, the Subpoenaed Parties claim here that: (a) documents regarding Project Goliath, beyond their direct communications with AG Hood, are irrelevant; (b) they should not, in any event, be burdened to produce what they have; and (c) that such materials might be privileged ? but it is ?premature? to assess that issue. None of these arguments has merit.

And then, after the MPAA revealed some of the requested documents, Google went back to court to highlight that what’s been emailed only serves to more strongly support the claims of a questionable relationship between Hood and the studios, which should support their arguments for more information. It starts out with Google outright mocking the MPAA’s argument that it’s unfair to force them to hand over documents to a court in Mississippi, since they’re NY-based companies not operating in Mississippi. Google points out that the MPAA and the studios seemed to have no problem at all going to Mississippi to hang out with Hood, so it seems odd for them to suddenly act as if Mississippi is out of the way.

The MPAA and Jenner claim that Google somehow ?dragged [them] into its dispute with [the] Attorney General.? … The DCA portrays itself as a mere amicus of the Mississippi court, and reassures this Court that it ?does not do business in Mississippi.? … Their rhetoric does not match reality.

The Subpoenaed Parties sought out Mississippi when they co-opted the state?s Attorney General for their anti-Google campaign. Documents withheld by the MPAA until last week reveal a stunning level of involvement in Mississippi?s affairs. The MPAA and Jenner repeatedly travelled to the state to meet with the attorney general; they hosted campaign fundraisers and made contributions for Attorney General Hood (?AG Hood?); and they controlled the pen used to draft AG Hood?s illicit demands and threats to Google. The DCA (funded by the MPAA) likewise visited with AG Hood in Mississippi, established a presence on the ground, and regularly communicated with him ? retaining Mississippi?s former attorney-general, Mike Moore, to lobby AG Hood as part of ?Project Goliath.? It was Google that was ?dragged? into this dispute by the Subpoenaed Parties, and not the other way around.

And then there’s more:

The Subpoenaed Parties have made clear that they have no problem acting in Mississippi when it suits their ends. After their years of direct involvement there, litigating objections to a single subpoena in the state could not be an undue burden.

The filing notes that while the MPAA revealed its communications with Hood to Google, it did so only if Google promised to keep them confidential. Google notes that there is no legal reason to do so, but for now it agrees to do so. However, it does reveal the nature of what’s in some of them. And what it shows is the MPAA and Attorney General Hood working hand in hand, with the MPAA basically calling the shots.

The Subpoenaed Parties and their representatives made repeated visits to AG Hood?s office in Mississippi to guide his anti-Google work. Even when they weren?t physically at AG Hood?s office, they may as well have been, getting together with him in Denver and Santa Monica and holding a fundraising dinner for him in New Orleans. But those interactions only scratch the surface, as the documents reveal remarkably cozy and constant communications between the Subpoenaed Parties and AG Hood… (MPAA?s Brian Cohen greeting one of AG Hood?s staffers with ?Hello my favorite? and offering to send her pictures of his vacation in New Zealand); …. (discussing a meeting with AG Hood?s staff the MPAA?s Cohen gushed ?OMG we spent 3 hours.?). This pattern of sustained, intimate contact is hardly the mark of a party that merely ?communicated with Attorney General Hood? ?previously? as the MPAA characterizes itself.

Despite protesting that Google has ?inappropriately grouped? it with the MPAA and Jenner …, the DCA is no different. It retained Mike Moore, Mississippi?s former attorney general, as a lobbyist to influence AG Hood regarding his Google investigation, even while Moore was serving as a deputized agent of AG Hood in connection with that same investigation. Alongside the MPAA lobbyists, Moore too was in constant contact with AG Hood regarding Google. And he co-hosted the campaign dinner for him that the MPAA put on. … Similarly, the DCA?s Executive Director, Tom Galvin, was personally involved in discussions with AG Hood, also traveling to Mississippi to meet with him…. Although the DCA claims it ?does not do business in Mississippi? …, its ?business? is lobbying and manufacturing press at the behest of the MPAA which heavily funds it. It was extremely active in that regard in Mississippi. The Subpoenaed Parties did not act alone in animating AG Hood with respect to Google, they coordinated their efforts with the major Hollywood studios who make up the MPAA, including Fox, NBCU and Viacom (collectively the ?NY Parties?). That coordination continues to this day ? the NY Parties are using the same law firm, Jenner, to resist subpoenas from Google, and in the Southern District of New York, they have made relevance, burden and privilege arguments that are virtually identical to those that the Subpoenaed Parties have advanced here.

There’s a lot more in the documents being filed (some of which we’ll cover in other posts), but suffice it to say this fight is getting even nastier as it continues, and it sounds like the contacts between the MPAA and Jim Hood (the same emails that wanted a ridiculous amount of money to reveal following our public records request) show that the relationship was even tighter than was revealed from the leaked Sony emails.

Filed Under: attorney general, cozy relationship, jim hood, lobbying, mississippi, project goliath
Companies: digital citizens alliance, google, jenner & block, mpaa

Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret

from the how's-that-working-for-you? dept

Last we had checked in on the ongoing legal wrangling between Google and Mississippi Attorney General Jim Hood, a court had ruled pretty strongly against Hood, accusing him of acting in “bad faith,” for “the purpose of harassing” Google in violation of its First Amendment rights. Checking back in on the case to see what’s been going on, it appears that things have continued to get more and more heated. A little while after that ruling slamming Hood, Wingate ordered Hood to provide a bunch of information to Google as part of the discovery process for the case — including, bizarrely, responses to Techdirt’s FOIA request, which we had declined to continue after Hood’s office demanded over $2,000 and made it clear that they still likely wouldn’t give us anything. However, Judge Wingate thought that Hood’s office should turn that info over to Google:

Any documents already gathered in connection with the Techdirt Mississippi Public Records Act request that are responsive to Google?s requests.

But, more importantly, Judge Wingate ordered Hood to turn over the documents that the MPAA/movie studios and their lawyers at Jenner & Block had written for Hood, as well as emails with the MPAA’s government affairs boss, Vans Stevenson:

Any draft subpoenas provided to the Attorney General by the third parties identified in Google?s request.

Attorney General Hood?s November 13, 2013 email to Vans Stevenson, and any replies or responses thereto;

Attorney General Hood?s August 28, 2014 letter to the Attorneys General in all 50 states regarding setting up a working group;

Less than two weeks after that, Google told the court that Hood was refusing to turn over a bunch of that stuff, claiming that it was “privileged” material:

The Attorney General has withheld most of the documents called for by the Court?s order. But there is no valid basis to assert privilege. Most of the documents in question were prepared by third parties lobbying the Attorney General to take action against Google. Neither the attorney-client privilege nor the work product doctrine permits public officials to shield such interactions from scrutiny. The privilege log provided by the Attorney General confirms that there is no basis to withhold the documents.

According to Google’s filing:

On April 15, the Attorney General served his responses and objections for the five priority document categories, along with a privilege log and 65 pages of heavily redacted documents…. He produced no documents at all within the fifth category specified by the Court, later explaining that while documents had been ?identified? in relation to the Techdirt Mississippi Public Records Act request, none had been ?gathered.? He also refused to produce much of the responsive material in his possession, claiming that the documents are protected by the attorney-client privilege, the work product doctrine, the common interest doctrine, or some combination thereof.

And, Google points out that the idea that Hood has attorney-client privilege over this material makes no sense, as he does not have such a relationship with the people in question:

It also concedes that the Attorney General does not know who drafted many of the withheld documents and instead states, ?on information and belief,? that they ?were prepared by or at the direction of? one of two or three named lawyers in private practice, at the law firms Jenner & Block LLP (?Jenner?), Orrick, Herrington & Sutcliffe LLP (?Orrick?), and SNR Denton US LLP (?Denton?)…. The Attorney General confirmed that he had no attorney-client relationship with these firms. Published accounts indicate that, in connection with lobbying activities, Orrick represents Microsoft and Jenner represents the MPAA.

There’s a lot more in that filing that absolutely destroys the arguments that Hood is making as to how these documents, prepared by the MPAA’s lawyers, could possibly be privileged material, blocked from discovery.

A week later, Hood responded to Google’s filing seemingly spending about half of the space simply reiterating one of his misguided rants about how evil Google must be — none of which seems even remotely relevant to the question at hand, concerning whether or not Hood needs to produce these documents, including the emails from the MPAA and its lawyers, as they plotted to use Hood in their plan to take down Google, a company they don’t like. After that, it basically just repeats “attorney-client privilege” and “work product” as frequently as possible, insisting that revealing any of this to Google would completely undermine all that is good and holy by revealing to Google what Hood and his staff were thinking. That, of course, leaves out the fact that it wasn’t what Hood was thinking, but rather what the MPAA — an organization that has made it clear it wants to harm Google — was thinking in terms of how it could use Hood’s office to that end.

Allowing Google access to these documents and communications would reveal the nature of the Attorney General?s mental impressions and strategy regarding future litigation against Google.

Or, you know, the MPAA’s “mental impressions and strategy” which apparently include funding/hiring one of Hood’s closest friends (who Hood himself then hired to help with the subpoenas to Google), Mike Moore (the previous Attorney General who helped get Hood elected). The whole reason why the judge ordered Hood to turn this over was to find out about those “impressions and strategy,” as Judge Wingate believed that those “impressions and strategy” show a “bad faith” plan to attack Google in violation of the First Amendment. Hiding behind a bogus attorney-client privilege claim (when Hood has no such relationship here) is incredibly weak.

Finally, earlier this month, Google responded again and laid out the situation in a fairly straightforward manner:

The Attorney General served the 79-page subpoena at the heart of this case after sustained lobbying from the MPAA. The Court has found that Google is likely to succeed on the merits of its claims, including its claim that the Attorney General conducted his investigation in bad faith. The Attorney General is now trying to throw a veil of secrecy over his interactions with the MPAA and other lobbyists during his investigation, refusing to produce the draft subpoenas the lobbyists wrote, and the multiple policy memos (with titles like ?Google must change its behavior?) that the lobbyists sent him. He asserts, for example, that documents created by the MPAA?s lawyers are somehow his work product, and thus beyond the scope of discovery absent a showing of substantial need, simply because he read them. That is flatly wrong. The work product doctrine exists to shield from discovery an attorney?s thoughts and impressions developed in preparation for litigation. It does not protect a trade association?s communications with a government official, aimed at inducing the official to pressure a business rival.

It further explains how all those chants of “attorney-client privilege” and “work product” make no sense at all:

* The draft subpoenas, CIDs, and white papers do not constitute the work product of the Attorney General because they were not created by his counsel or agent, but instead by private third-parties seeking to influence his official conduct. * The same documents do not constitute the work product of private counsel because their clients (the MPAA, Microsoft, and others) were not anticipating litigation as a party. And any protection was waived when the documents were provided to the Attorney General to encourage an attack. * The letter to attorneys general is not work product because the unredacted portion of the document makes clear its primary purpose was to form a working group to induce Google to change its policies, not to prepare for litigation. And the common interest doctrine does not include unsolicited invitations to join such an effort.

Oh, and the Google filing also highlights the fact that both the MPAA and Hood appeared to employ Mike Moore separately to work on this same project, and this also further undermines the attempts to keep these communications a secret:

The record also suggests that any privilege was waived by the Mike Moore Law Firm?s parallel representation of the Attorney General and a private lobbying group, as well as Mr. Moore?s repeated disclosures of confidential information to outside interests.

This back and forth is kind of fascinating. The Judge has already made it quite clear that he’s not buying Hood’s story, and it seems pretty obvious from the Sony leaks and deeper reporting from the NY Times last year, that Hood’s fishing expedition was based almost entirely on the MPAA’s big plan to hamstring Google just because the MPAA really, really doesn’t like Google. That Hood would use his office as a state Attorney General to assist in such an action does not speak very well of Hood. That he’s now scrambling to hide the details of his relationship with the MPAA only serves to call more attention to that relationship.

Filed Under: attorney client privilege, discovery, first amendment, jim hood, mississippi, section 230
Companies: google, mpaa