Attorneys General: Court Shouldn’t Have Halted Google Investigation

Mississippi Attorney General Jim Hood has garnered the support of 40 attorneys general in his effort to overturn a preliminary injunction that prevents him from enforcing a subpoena of Google over their search practices.

The attorneys general, led by Jack Conway of Kentucky, Mark Brnovich of Arizona and James “Buddy” Caldwell of Louisiana, argue that the preliminary injunction “would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry.”

The list included 23 Republicans and 17 Democrats. New York Attorney General Eric Schneiderman signed, California Attorney General Kamala Harris did not.

In March, U.S. District Judge Henry Wingate issued a preliminary injunction that bars Hood from enforcing his subpoena. Wingate wrote that there was a “substantial likelihood” that Google will prevail on its claim that Hood violated its First Amendment rights. The judge, however, has not made a final ruling on the merits of the case.

Hood is appealing that decision, and the attorneys general chimed in with an amicus brief on Monday.

Google claims that Hood’s investigation was unduly influenced by lobbying efforts of the MPAA, the Digital Citizens Alliance and Jenner & Block, which formed an “AG Working Group” as they pursue measures to combat piracy.

The attorneys general say that while they take no position on the likely outcome of Hood’s investigation, they write that the public has an interest “in preserving the ability of state attorneys general to investigate potentially unlawful and harmful conduct.”

They characterized Google’s lawsuit against Hood as preemptive and premature, as the search giant had yet to be subject to any complaint.

“Google’s suit does not merely challenge the subpoena’s requests for documents and information, it challenges the claims Google imagines the attorney general may file against it at some unknown point in the future,” the attorneys general write.

Earlier this month, Google asked a New York federal judge to force 21st Century Fox, NBCUniversal and Viacom to comply with a subpoena for their communications with Hood.

Google contends that the media companies played “key roles” in Hood’s investigation, spending “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.” They claim that the companies “formulated” Hood’s demands to Google and even ghost wrote talking points, letters and the civil investigatory demand.

In his appeal, Hood wrote that “what is surprising is that the district court allowed Google to stop in its tracks a state investigation that has barely begun.” He argued that the preliminary injunction is out of step with settled federal law and “deals a significant blow to fundamental principles of federalism and comity.”

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