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Google likely to prevail against Mississippi Attorney General's enormous subpoena, court says

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A federal court in Mississippi is convinced so far that Google will prevail against the state's attorney general in a lawsuit over an allegedly burdensome and over-broad subpoena. Google filed the suit a week after The Verge published a report tying Mississippi Attorney General Jim Hood to a secret Hollywood campaign to fight Google, pinning blame on it for piracy. Hood had handed Google a 79-page-long subpoena requesting a wealth of information and interviews, which Google is now fighting back against on grounds that it violates its First and Fourth Amendment rights.

"The Attorney General’s interference ...would likely produce a chilling effect."

The court granted Google a preliminary injunction against the attorney general earlier this month, and that's now being elaborated on in an order issued Friday. The court says that it believes Google has demonstrated a "substantial likelihood" that it will prevail on its First Amendment claims and that Google's Fourth Amendment claim has "substantial merit." This isn't necessarily a surprise — Google appeared to have a strong case, and a "substantial" chance at prevailing in a case is necessary for this kind of injunction — but the court's language emphasizes why it's critical here.

Legal precedent suggests that Google's interpretation law — particularly that search engines are generally protected from liability in the type of piracy cases that Hood is complaining about — is likely correct. "The attorney general’s interference with Google’s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights," the court writes.

The court also notes that the attorney general may not threaten prosecution because Google is using its First Amendment rights. The court writes, "Google has submitted competent evidence showing that the attorney general issued the subpoena in retaliation for Google’s likely protected speech, namely its publication of content created by third parties."

Of course, this is only the court's initial thoughts and may have no bearing on its final ruling. But it suggests that the court is strongly on Google's side for now. In response to the order, the Electronic Frontier Foundation writes that, "although the case is far from over — this is just a preliminary order — the court’s recognition of Google’s rights under the First Amendment and the [Communications Decency Act] is encouraging, and important for the overall health of the internet."