“Keeping an Eye on Immunity”: Fifth Circuit Rules Against Google in Vacating Prohibition on the Mississippi Attorney General’s Enforcement of a Subpoena

By: Chante Westmoreland

On May 18, 2016, Judges Stewart, King and Higginson of the Fifth Circuit Court of Appeals issued an opinion and order vacating an injunction that would have prevented the Mississippi Attorney General, Hood, from enforcing a subpoena against Google. The court’s opinion in Google, Inc. v. Hood has implications for Internet service providers that currently enjoy the broad immunity provided by the Communications Decency Act against claims stemming from publication of third-party information.

Amidst growing concern that search engines were not doing enough to “combat copyright infringement, the sale of prescription drugs and counterfeit products, and other ‘illegal and harmful’ activity on the Internet,” Attorney General Hood began encouraging other state attorneys general to join his cause against Google’s current regulatory policies.

In 2014 alone, Google processed over 3.5 billion searches per day, making Google the Internet’s leading search engine. Google earns revenue through AdWords and AdSense, programs that essentially allow third-party advertisements to be displayed alongside actual search results. There are over forty million advertisements created each day through Google’s use of these programs. This type of large-scale activity made Google the target of Hood’s efforts.

Google takes measures to regulate material such as copyright takedown notices, court rulings, or laws preventing the displaying of child sexual abuse and personal financial information. Additionally Google’s “Autocomplete” search feature blocks predictive text for words and phrases that could fall into the category of hate speech. Similarly, AdWords filters out advertisements for counterfeit goods, drugs, weapons, and other dangerous products or services. It also restricts (but does not prohibit) ads for healthcare related content, alcoholic beverages, intellectual property-violating material, and “adult-oriented” content. Google argued that more stringent measures would be inconsistent with free speech values and practices of similar companies.

In April 2013, Hood wrote to Google to express his concerns, and Google responded by highlighting its aforementioned policies. Hood informed Google that these policies were insufficient and threatened litigation if Google did not take voluntary action. Finally, in October 2014, Hood issued an administrative subpoena, which stated that there were “reasonable grounds to believe that Google Inc. may have violated… the Mississippi Consumer Protection Act.”

Google filed suit in federal court after being served with the subpoena. The district court enjoined Hood from enforcing the administrative subpoena and from bringing charges against Google for making third-party content accessible. The Fifth Circuit reversed this decision on procedural grounds; namely, the court did not feel that there existed “imminent irreparable harm” that necessitated an injunction. Notably, the court did not decide the issue of whether Hood could enforce his non-self executing subpoena or whether section 230 immunity would in fact protect Google in this scenario.

Judge Stewart focused his analysis on the improper application of equitable remedies at such an early stage in the case. After all, he explained, Hood had not yet sought to enforce his subpoena or even begun the actual prosecution he threatened. However, Judge Stewart did offer a reminder that section 230-immunity was intended to protect free speech and the free-flow of information.

Section 230 of the Communications Decency Act offers Internet service providers “broad immunity” against claims stemming from publication of third-party information. According to Judge Stewart, circuit courts have consistently given this immunity wide scope. However, this opinion has Internet service providers wondering when and in which circumstances courts will continue to apply this immunity.

In the opinion, Judge Stewart emphasizes the importance of section 230 of the Communications Decency Act. However, the decision to vacate the district court’s injunction calls into question the threshold of Internet service providers’ protection. Here, the court says that the threat of prosecution is not imminent enough to trigger injunctive relief. This seemingly means that although Internet service providers supposedly have “broad immunity,” that immunity does not activate until they are on the steps of the courthouse. Thus it appears that section 230 does not protect against “all claims” stemming from third party content, but from “all prosecutions” stemming from third party content. However in a footnote, Judge Stewart did mention that immunity could possibly be applied at the motion-to-dismiss stage, despite the inquiry usually being fact-intensive.

If section 230 of the Communications Decency Act were diminished, Internet service providers that allow third parties to post their own content would risk liability for what users post. This liability could result in 1) a chilling effect on free speech by users; 2) the stifling of creativity, as users would have less access to innovative ideas; 3) the delaying of “real-time” content display; and 4) the silencing of “unpopular opinions” as determined by the majority group of users of any particular service provider.

Thus far, this case could be read one of two ways. On the surface, it appears to be a victory for Hood, and therefore for other state law enforcement agencies that are looking to hold Internet service providers liable for third-party content by possibly finding an exception to the broad immunity rule. After all, Hood is now free to enforce his administrative subpoena. On the other hand, the language in the case seems to strongly support congressional intent behind section 230. In other words, Congress intended to provide Internet service providers with broad immunity against third-party content, and therefore the court plans to uphold this immunity. The question remains, however, how broadly the court will continue to apply this immunity.

Although Google would seemingly have immunity under section 230, its current efforts to regulate some third-party content would certainly make the company seem more sympathetic to a judge or jury. Google’s preemptive attempts to make its search engine a safe space is likely a good idea for companies because it shows that they made a “good faith effort” as opposed to failing to act altogether. By making an effort, companies may be able to stave off liability (or at least minimize damages) in case a court finds that the act was not protected by section 230.

Google, Inc. v. Hood reminds us of the “importance of preserving free speech on the Internet, even though it can sometimes be used as a conduit for much that may be distasteful or unlawful.” Thus, it remains difficult to tell if the Fifth Circuit will begin chipping away at the type of activity that triggers immunity or will continue to apply it broadly in the interest of protecting free speech online.