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

Court Says Prosecutor's Lies Means Man Can Have His Money Back, But Not His Life

from the and-not-even-a-wrist-slap-for-the-prosecutor dept

In a mess of a case that involved multiple incidents of prosecutorial misconduct, as well as an after-the-fact decision to seize assets, the only people walking away clean are the prosecutors. The Open File has the background and details.

In an appellate opinion notable for its extensive adjudication of several aspects of prosecutorial misconduct, the 5th Circuit has upheld a lower court finding of misconduct in a defendant’s first trial, as well as a claim of prosecutorial vindictiveness in his second. It has managed to do this while, nonetheless, affirming the defendant’s criminal conviction and sentence.

The defendant, Jason Dvorin, was convicted in 2012 for bank fraud, largely because of the testimony provided by his co-conspirator, Chris Derrington. He was sentenced to two years in prison and ordered to pay $100,000 in restitution.

He appealed this first conviction, which is when the first details of prosecutorial misconduct were uncovered.

During Dvorin’s first appeal, the government “discovered” that prosecutor Mindy Sauter had failed to disclose a sealed supplement to the plea agreement with Chris Derrington promising Derrington assistance in obtaining leniency at his own sentencing.

Not only did the government not disclose this close working arrangement between prosecutors and Dvorin's co-defendant, but it allowed him to perjure himself by affirming under oath that no such agreement was in place.

The government did the right thing… as far as that went. It admitted to the Brady and Napue violations and allowed the sentence to be vacated. But that didn't take Dvorin off the hook. All it did was set him up for a second trial.

It was at this point that the district court decided to get to the bottom of the prosecutorial misconduct.

[W]hen the case came up for retrial, the district court “issued a show cause order in which it requested that the government’s counsel file a pleading addressing why sanctions should not be imposed for Sauter’s failure to disclose Derrington’s plea agreement supplement and Sauter’s permitting Derrington to falsely testify that the government had not made him any promises.”

This pleading was accepted and the court took a look at Sauter's actions. But it decided that the abuse wasn't enough to justify letting Dvorin walk away from the charges. Not only that, but it cut Sauter a whole lot of slack.

[D]espite finding that Sauter had “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” the lower court did not find Sauter had acted in “bad faith,” and chose to impose no sanctions.

Dvorin was convicted and sentenced a second time. To add insult to the injurious behavior of its prosecutors, the government decided to tack on an asset seizure, which the court agreed to impose.

Both Dvorin and Sauter appealed this decision. Dvorin raised objections to the lack of sanctions against the prosecutor as well as the forfeiture order, which he termed "vindictive."

The prosecutor appealed in her individual capacity. Sauter's concern was for her own reputation.

In response to being called out by name for misconduct in the district court ruling, Mindy Sauter appealed the judge’s “reputational findings” that she had violated Brady and Napue.

Sauter didn't mind abusing her position to offer secret plea agreements and encourage her witness to lie to the court about it. But she did mind having her name made public -- in association with her own abusive actions -- by the court's decision to not bring sanctions against her. The appeals court, at least, didn't offer her much sympathy. It noted that a majority of the filings were still sealed, so any "reputational damage" was minimal. It didn't go so far as to disabuse her of her notion that her actions shouldn't have consequences -- even as it declined to hand out any additional punishment or vacate Dvorin's sentence.

To make things worse, the court -- while tossing out the $91,000 forfeiture -- similarly found any injury to Dvorin was so minimal that Sauter should not be personally punished nor have her case tossed. From the opinion:

The individual who was responsible for the discovery violation (Sauter) was no longer involved in the case at the time the district court was considering the propriety of awarding sanctions. Thus, the concern of deterring future misconduct was less significant than it might have been otherwise.

That's apparently how you escape being held responsible for your misconduct: keep working your way through your caseload. Although she did perform the acts that were later found to be Brady/Napue violations during the first prosecution of Dvorin, the fact that she wasn't directly involved in the retrial was apparently punishment enough.

As The Open File notes, the decision to let Sauter escape without even a slap on the wrist, while simultaneously finding the forfeiture order to be vindictive, is almost completely contradictory. The problems originated with Sauter. They were only made worse when the government decided to seize Dvorin's assets while trying him for a second time.

In sum, then, we have a court choosing, in Sauter’s case, to impute no ill motive to her suppression of material evidence, while at the same time imputing a vengeful motive to her successors.

If the problem of prosecutorial misconduct is ever going to be fixed, it must first be addressed. The court here barely does that. In fact, it seems the court would have done even less if Sauter hadn't taken it upon herself to try to rebuild her damaged reputation by appealing the lower court's decision.

In the end, everything Sauter did and everything the government attempted to vindictively pile on was left mostly intact. Dvorin may have gotten his money back, but he's still in prison. Sauter and the other government prosecutors are still free to abuse the system to the extent the courts will let them get away with it. This district has shown it's willing to permit a number of violations before it will even consider tossing convictions. Those are pretty good odds, if you're the sort of prosecutor who thinks breaking the rules is perfectly acceptable when pursuing "justice."

Filed Under: 5th circuit, chris derrington, jason dvorin