When it comes to matters of public policy, you could not pick two elected officials with more differing views than the conservative Attorney General of Arizona, Mark Brnovich, and New York’s AG, Eric Schneiderman, dubbed the Empire State’s “gatekeeper of the left.” Nevertheless, they have come together to fight a court decision they strongly believe threatens their rights—and duties—to execute the laws of their states, a principle often referred to as “federalism.” And they are not alone.
A total of 40 Attorneys General (23 Republicans and 17 Democrats) have filed a joint friend-of-the court (“amicus curiae”) brief in the U.S. Court of Appeals for the Fifth Circuit, challenging a lower federal court decision prohibiting the Attorney General of Mississippi, Jim Hood, from carrying out an investigation of Google’s potential facilitation of access to, or advertising of, illegal products and services like child prostitution and false government identification documents.
Additionally, Internet safety groups like the Digital Citizens Alliance, Tyler Hooten Foundation, and Ryan United filed a separate brief, authored by conservative former U.S. Solicitor General Paul Clement, who successfully led the case against Obamacare, thereby preserving a state’s right to opt out of Medicare expansion.
Count the American Conservative Union with those defending the rights of state officials to do their jobs. More importantly, count the American Conservative Union among those supporting states’ rights embodied in what the Supreme Court has called “Our Federalism.”
The underlying issue goes back to 2011, when Google paid $500 million to avoid prosecution for its role in the advertising and sale of unauthorized Canadian pharmaceuticals to U.S. consumers. Not surprisingly, this piqued the interest of state AGs charged with the enforcement of state consumer protection laws, who have observed behavior leading them to believe Google may not be living up to their obligations under the 2011 non-prosecution agreement. In Mississippi, this led to a subpoena for Google documents. However, on the basis of a lawsuit filed by Google claiming federal law preempts Hood’s investigation, the federal district court in Jackson, Mississippi granted a preliminary injunction that stopped the investigation in its tracks.
“Our Federalism” deserves better. What the chief law enforcement officials of 40 states are objecting to is the interference of a federal court with a state investigation, a precedent that would truly have far-reaching and dangerous consequences.
In the brief filed on March 27, the AGs point out that if the Mississippi Attorney General can be barred from enforcing his own subpoena, “any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be-filed civil claims” to avoid an investigation.
In granting an injunction, the district court agreed with Google’s argument that Section 230 of the Communications Decency Act (“CDA”) gives Internet service providers like Google immunity from even being investigated by state law enforcement authorities. But as Clement argues, that’s demonstrably false. Clement, points out that Section 230 of the CDA expressly preserves the ability of state officials to bring claims under state law. Clement also notes that the CDA does not sweep remotely as broadly as Google portrays it: “An immunity from investigation would be a radical departure from the normal order and raise serious federalism concerns.” Clement adds there’s nothing that indicates Congress wanted to use the CDA to prohibit state officials from even investigating potential wrongdoing by an Internet company like Google for its own actions.
Now you might think, with all this legal infighting, that Google constantly stonewalls law enforcement; but you would be wrong. Google boasts on its website that in the last six months of 2014 alone, it complied with more than 7,500 requests for information in connection with criminal investigations, including 4,000 subpoenas. Regarding Google’s assertion Clement notes:
But under the district court’s sweeping theory of Section 230 [of the Communications Decency Act], that is all a matter of grace on the part of Google unless those information requests pertained solely to content actually created by the company. Needless to say, that rule would severely burden law enforcement officials’ ability to investigate criminal activity and protect the public.
It’s also interesting to note that in its lawsuit against the Mississippi Attorney General, Google attempts to undermine the investigation by noting that media companies cooperated with law enforcement officials to find ways to stop the theft of intellectual property, a very real problem that threatens our economy. Based on its concerns that American companies would dare work with law enforcement officials, Google has asked a federal court to force these companies to comply with — wait for it — a subpoena for any communications with General Hood.
Yet another irony is that one of the few Attorneys General missing in action on this issue is California Democrat Kamala Harris, who hopes to succeed Barbara Boxer in the U.S. Senate. It so happens that Google is headquartered in California. We hope that one who aspires to leadership would have the backbone to stand up for the Constitution over a single corporate entity.
We will let the courts hash out the underlying issues in these legal cases, but let’s hope that the Fifth Circuit reverses the district court’s overreaching and erroneous injunction, and restores “Our Federalism.”
Larry Hart is a government affairs consultant with the American Conservative Union.