Whether Or Not Mississippi Attorney General Jim Hood Is In Hollywood's Pocket, He Sure Doesn't Understand Free Speech Or The Internet
from the let's-take-this-slowly dept
We already discussed the rather unbelievable (in that they are, literally, unbelievable) claims from Mississippi Attorney General Jim Hood that he didn't know he was working with the MPAA's top outside lawyer when he had that same lawyer, Tom Perrelli of Jenner & Block, spend time prepping him for a meeting with Google in which he attacked Google's practices, and further when he signed his name to a ~4,000 word letter to Google that Perrelli wrote, attacking Google's practices. He just assumed that Perrelli -- who probably charges more per hour than you can possibly imagine -- was doing it to help Hood out, rather than for a client. And he expects everyone to believe that, even though at the same time Hood himself had called one of the MPAA's top lobbyists to discuss Google. And, further, he doesn't appear to think there's anything wrong that his political mentor, Mike Moore, who helped get him his job as Attorney General (Moore was in that job before Hood), just happened to take a cushy lobbying job paid for by Hollywood companies right around the same time. It's all a giant coincidence.But if Hood is going to take a step back and reflect on just how bad this looks, he sure isn't showing it. Instead, he's coming out swinging, holding a press conference in which he appears focused on revealing his own ignorance of the law and technology (with a special focus on his vast desire to censor the internet -- and anyone who criticizes him). This was held yesterday, prior to Google's filing this morning challenging Hood's subpoena (the one the MPAA knew was coming). While the Google filing discussed in that previous post detailed many of the problems with Hood's legal theories, the press conference displayed an astounding lack of understanding of the law, of search engines and of basic technology.
Take a look:
He then suggests not only that it was Google sorting through the emails, but also that this is illegal. He claims that the law says it's okay for reporters -- but perhaps not companies. Huh?
I want to talk about a story that's been pushed out by a large corporation called Google. I mean, they pushed this story out. They rifled through the emails that were stolen from Sony. And, you know, I equate it to rifling through someone's stolen property. You know, someone goes in your house and steals your filing cabinet and your clothes and the drawer and sets it out on the road. Do they have the right to go through it? Certainly there's case law saying the media has the right to publish this type of thing. But, you know, companies like Google that have pushed this story, putting it out to blogs, and it winds up, you know, they're trying to do a story about Sony working with other industries, not just within their industry, to try to do something about intellectual property theft, and Attorneys General is unfair, to say the least, that they try to spin it, by feeding the NY Times documents and emails and things like that, to indicate somehow that Attorneys General just came to this because the motion picture industry just got involved in it.So, again, he implies that Google was the one who rifled through the documents, and that it's possibly illegal -- and further suggests that giving actual evidence to reporters at the NY Times is, at the very least "unfair." Hood has a very interesting understanding of journalism and fairness. But, note, of course, that he doesn't deny what the NY Times actually reported -- that he, as Attorney General -- took a ~4,000 word letter from the MPAA's top attorney and sent it to Google almost entirely unchanged.
Instead, this press conference is about attacking Google and free speech at every opportunity. Every single opportunity. He kicks it off by talking about (what else?) child pornography (because that's the copyright industry's go to moral panic button -- even though all it's done is actually made the child porn situation even worse by making it more difficult to find and deal with abusers). And then he excitedly talks about getting banks to stop doing business with sites, and then easily slides back and forth between child porn and copyright infringement as if you can block one you can easily block the other. This is an old argument of the copyright industries, and it's simply wrong. Child porn can be identified, because it's inherent in the image itself. Copyright, on the other hand, isn't about the material, but the use. You can't tell, just by looking at a picture, a song or a movie if it's infringing or not. You can't tell if it's licensed. Or if it's fair use. Or if it's public domain. But Hood doesn't seem to care. Despite no legal basis, he declares certain sites to be flat out illegal, and says that Google needs to block them completely. He even seems to recognize the lack of a legal basis, because he says that Google should just "team up with a non-profit" who will "make a list" and Google should censor that list.
Let's just be clear about what Attorney General Jim Hood is asking for here: he's asking for a censorship list of sites that need to be blocked without a legal review or court order.
And, then, from child porn to copyright... he moves on to drugs.
Here's an example. Just today, my investigators typed in the words "buy drugs." [points to screen] And if you look right here, on this list, this is Google, what do you find here: Silkroad.org! That is an illegal drug site that was taken down by the federal government. And here's CanadianDrugs.com. That is the company, from which our investigators bought drugs online.... They know about that website, because I wrote them a letter and said here's where we made these purchases online. But yet, even today, some kid in Mississippi, types in "buy drugs," they're going to find a way to buy some.Huh. First off, Hood is flat out wrong about Silk Road. It was never at SilkRoad.org (that appears to be some author's site). It was a Tor hidden site. It never had a URL like that. Second, the site that's actually at the top of the list (SilkRoadDrugs.org) is a blog/news site about Silk Road and other types of hidden markets. This actually demonstrates the very serious problem with Hood's argument. What he's doing here is calling for the flat out censorship of a news publication for writing about hidden markets online (and the legal issues related to them). Hood and his staffers are so clueless that they can't tell the difference between an actual online drug market and a news site. And yet, they think that Google should just automatically censor sites on his say so? That's not how it works.
Furthermore, this highlights the absolute stupidity of trying to demand that Google ban "illegal" websites. In this case, you could never find Silk Road via Google (no matter what Hood wrongly claims) because it never had a Googleable URL. Instead, you could only find websites that then explain how to get to Silk Road. And that's exactly what would happen if you banned other sites. In its place would pop up informational sites -- protected by the First Amendment -- that explain how to get to the sites that Google was told to block. Thus, blocking those sites doesn't solve the problem in the slightest.
Second, the site that the search links to is not "CanadianDrugs.com," but "CanadaDrugs.com," (though CanadianDrugs leads to the same site) which is a site that is actually backed by PharmacyChecker, the Canadian International Pharmacy Association and the Manitoba International Pharmacists Association as being a legitimate online pharmacy. Now, yes, some can argue about the issue of importing drugs into the US from Canada, but importing legitimate drugs from Canada is very different from buying illegal drugs -- and in fact, politicians from President Obama to Senator Patrick Leahy have pushed for allowing greater importation of drugs from Canada as a way to make drugs more affordable. Apparently, Jim Hood doesn't want poor people to be able to buy cheaper drugs. Nice guy.
Third, and most importantly, Hood's populist crap about kids from Mississippi being able to buy drugs online -- that's not because of Google. Hell, Hood himself can be blamed just as much as Google, because at this very press conference he announces publicly a website from which he claims he was able to buy illegal drugs. Think about that for a second. If you're a kid in Mississippi looking to buy illegal drugs online, which are you going to do: do a random search for "buy drugs" on Google and then hope for the best. Or go directly to the website that the Attorney General of your state just said you can buy illegal drugs from. If the "crime" that Google has committed here is to point people to a site from which they can buy illegal drugs, hasn't Attorney General Jim Hood violated the very same law (in an even worse fashion by flat out saying there are illegal drugs there)?
Either way, if the site is illegal, that's not Google's decision to make. Get a court order declaring the site illegal and present that to Google. And, of course, as mentioned above, that still won't solve your problem, because it will just result in First Amendment protected websites telling users how to get to the sites that Google has banned.
Jim Hood doesn't seem to understand any of this, and it shows a real lack of understanding of both the First Amendment and the internet.
That's the kind of stuff we're talking about. We're talking about prescription drugs. Now, if they're stealing music and movies and software, you know, the piracy issues, that's bad! That's a crime. And if Google is assisting them, they're assisting in a crime.Okay, you'd hope that an Attorney General would know the law, but it looks like he doesn't know the first thing about the law here. First off, copyright infringement has both civil and criminal parts, but most copyright infringement is civil, not criminal (also, it's infringement, not "stealing.") Second, even if we were talking about criminal copyright infringement (which has a few requirements), to then argue that Google's role of linking to websites when people ask for those sites equals "assisting" shows a complete lack of understanding of the concept of "aiding and abetting" in criminal law. Aren't Attorneys General supposed to know this stuff? Just because a tool is used to commit a crime, it doesn't make the provider of the tool guilty of assisting. Again, if that were the case, then Attorney General Jim Hood himself broke the law multiple times in this press conference when he named sites where you can buy drugs and download music (he talked a lot about MP3Skull, for example).
In fact, Google got caught. They paid a half a billion dollar fine. Do y'all remember that? They paid a five hundred million dollar fine to the federal government.Except, no. Again, Hood is misrepresenting things. Google did pay a $500 million fine, but not for its search results. That was for advertisements in its AdWords program for a questionable pharmacy -- and the details in that case involved an ad sales guy for Google who seemed to go out of his way to try to help an obviously up-to-no good federal informant set up ads for a pharmacy to sell illegal drugs. In that case, there was fairly clear evidence that the employee in question was directly assisting questionable behavior. But that's very, very different from organic search results.
Once again, you'd hope that someone like an Attorney General bent on going after search engines would understand the difference between advertisements and organic search. But Hood doesn't seem to know or care.
But you can still go on here and find all kinds of drugs. Heroin!Is he really claiming that you can buy heroin on Google? Because that's bullshit. I'm sure there are places that you can buy heroin online but the idea that Google is the reason people are buying heroin is insane. Not being particularly knowledgeable about the world of heroin, I just spent some time trying fairly hard to search Google for a way to buy heroin and came up empty, other than (again) some news websites that basically just tell you about hidden drug markets online (please point the DEA or DOJ to this paragraph should they show up at my door asking why I've been doing those searches).
From there, Hood launches into a full-on assault on the internet. Or rather, his ignorant view of the internet and the law.
The internet, as I've been talking about... is the future of crime.What does that even mean?
Their motto is do no evil, but all I'm finding as I work with them is that they're pushing evil. They're pushing evil. They're pushing other companies that deserve their respect. But more important to me, they're creating a highway for my children and our children in Mississippi to buy drugs, to have human trafficking, to buy fake IDs. I mean we have examples of how you can go online right now and buy fake IDs.Hey, Jim Hood, stop confusing "Google" with "the internet." Google is a search engine. It finds what's on the internet. It is not the internet. It is not responsible for what people find or what they're looking for. This is a basic concept. It would help if you learned it.
We've got YouTube videos of how to buy a fake ID.Yes, that's also known as protected speech and it's done by people who are not Google. I'm sure there are books you can buy about fake IDs as well, but you don't blame the US Postal Service for delivering them when someone buys one.
Google says "well, our system, we can't track that." Well, we found that isn't true. Because they take down this "prescription drug without a prescription" autocomplete.Yes, here Hood seems to be conflating a variety of things. Yes, Google can and does edit the autocompletes to take down language that people complain about, but that's very different than saying "this entire site is bad." These are totally different things. Comparing the two suggests a level of technical ignorance that is kind of scary for someone so intent on censoring the internet. But, no worries, Hood's got a solution: he supports blatant out and out censorship, like that found in Germany:
If you go to Germany and type in "Nazi" you can't find anything.First of all, that's not true. Just try it. Second, even if it were, Germany's requirements on Naziism would be a violation of our First Amendment here in the US -- the kind of thing that an Attorney General should know about.
He goes on to insist this has nothing to do with SOPA or even filtering the internet... but that he just wants Google to filter these bad sites out. This gets back to the fundamental problem with supporters of censorship like Jim Hood. They think that "bad" is an objective thing, and that if they think a site is bad, that it's "obviously" bad and thus it's not censorship or filtering. Furthermore, Hood doesn't even seem to recognize that Google has been pretty active in pushing down a variety of sites associated with infringement, to the point that various torrent sites almost entirely disappeared from the site. That's what Hood was asking for, so why doesn't he admit that Google actually basically did a bunch of what he asked?
From there, the press conference went to questions, and the first reporter points out the obvious: "I don't know why you're going after Google on this, rather than the actual websites." To that, Hood said, again, that Google was "assisting" these websites, and claims that Google is making money from these sites advertising on Google. Yet, none of the examples he showed involved advertisements. They were all organic search. And, even if they were advertisements, Google is just a platform. Anyone can go in there and buy an ad saying just about anything. How is that Google's fault?
The same reporter then pointed to the YouTube videos about buying fake IDs and said "would that not be a stifling of the First Amendment?" And Hood's response:
No. Because Google's not the government. They don't owe a First Amendment... they should just say "we're not going to do business with you website unless you clean up your act."He's right that Google is not the government and Google can choose to block anything or set up its search results however. But the entire discussion here is about Hood -- a government official -- claiming that Google is breaking the law in not doing this. That is the First Amendment problem. And Hood doesn't even seem to understand that. In fact, just minutes later, he insists "there's going to be a court battle" to determine if Google has to block these sites. If that's the case, then it very much involves the government stepping in and deciding a free speech issue.
The reporter -- whoever he is, and he seems to fully understand all the things that Hood doesn't -- points out, again, that isn't the real problem with the actual websites, not Google. And then asks "what law is Google actually violating here." You can almost see the panic on Hood's face as he recognizes his unchecked anger wasn't about anything actually illegal. But he tries, valiantly, to come up with something:
Well, if you're made aware of it, then you're an accessory to it.Again, huh? Pointing people to information is not an accessory to a crime. No matter how many times Hood wants to claim it, he's wrong. Or, if he's right, HE VIOLATED THAT SAME LAW in this very press conference. Hood then claims that Google has to know entire sites are illegal based on DMCA notices concerning some content on that site being infringing. Right. But under that theory, YouTube shouldn't even exist, because Viacom insisted it was illegal based on DMCA notices but then failed in court.
This is the point. You don't just get to point to a website and say "that's illegal." Go to court. Have an adversarial trial and then prove that a site is breaking the law. That's fine. But that's not what Hood is saying. He's saying if he or the movie industry or the drug industry points to a website and says "this site is illegal," then it should be blocked. But given how the entertainment industry has a long history of declaring new innovations illegal (the player piano, the radio, cable TV, the mp3 player, the VCR, YouTube, etc. etc. etc.), I'd much rather we don't go down the road where a particular entrenched industry gets a veto on innovations.
From there, Hood goes on to attack the State Attorney General's favorite bugaboo: Section 230 of the CDA. That law makes it clear that platform providers aren't responsible for the actions of users. And this makes perfectly good common sense because you don't blame AT&T for someone calling in a bomb threat, and you don't blame Ford for its car being the getaway car. But Hood really wants to blame internet companies for the way people use them. Because companies are easier to go after than people actually doing wrong -- and it generates much bigger headlines.
That was created because we wanted the internet to flourish. Companies like Google are using that shield as a sword. They're saying you can't come after us because we have immunity, even though we're changing our algorithm, and we're doing autocomplete. They're doing all that. They have that immunity unless they change that information. And when they use that autocomplete that's when they step into no man's land. They don't have that Section 230 protection.First of all, no, Section 230 wasn't created just because we wanted the internet to flourish. That was a side effect. Section 230 was created to put liability on the actual parties responsible rather than allowing grandstanders and ignorant people to go after service providers for the way people use their services. And Google isn't saying that it has immunity just because of the law, but because it's not the one doing the actions in question.
As for the whole autocomplete bit, Hood is again totally misrepresenting things. Section 230 actually does encourage companies to make edits like that, and specifically notes that companies can't be held liable for making such choices because it wants to encourage companies to do exactly what Hood is talking about. Arguing that Google is liable for changing the autocomplete results or shifting the algorithm creates incentives for companies to do nothing at all to avoid being blamed for their own actions pointing to bad results. Hood's own solution would make things much, much worse. Section 230(c)(2) makes this clear: "No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
I know Hood doesn't like the law, but the least he can do is understand it before misrepresenting it.
Then there's this: Hood directly calls for an insider to blow the whistle on Google:
I want some insiders to come forward who have been done wrong by Google from the Valley. I'm putting out a call to anybody out there that has information on how Google has done illegal acts. I'm trying to reach out to those people in the Valley or wherever they are. Because it's going to take an insider to bring this company to the point where it follows the law.Right. So, throughout this talk, Hood slams anyone looking at Sony's documents as "rifling through stolen information," and then in the very same press conference asks people to leak him insider information from Google. Does the man have no self-awareness at all?
At the end, he then admits that his office doesn't understand this stuff or have a budget -- so he has to rely on the rather biased MPAA instead:
Reporter question: Is there a budget for legal support?Uh, so there he is taking back basically everything he had previously said about the MPAA and admitting that he is relying on them and their lawyers? Going to industry for help is one thing. But having a very biased industry (with a known -- if totally misguided -- hatred for Google) not just driving the investigation but spending that million dollars on it and writing up the letters for Hood to send and prepping him for his meetings -- that seems like a very different thing than just "talking to the victims" as Hood repeatedly claimed earlier in the interview.
Hood: For our office? [shakes his head] You know, I've got investigators.... The answer to your question is No. We're going to have to spend some money. We don't have experts in the area of intellectual property theft. We're going to have to rely on lawyers that have that type of expertise. So, the legislature doesn't give me a budget of a million dollars just to do these kinds of major investigations, so we have to work with and rely on industries -- and we're going to work with them and their lawyers.
Also, it appears that Hood knows fuck-all about defamation law:
Hood: Implications AGs have been paid off might even be actionable.
— Therese Apel (@TRex21) December 18, 2014
But is it really any surprise that an Attorney General who is relying on a massively funded MPAA investigation to try to stifle free speech online is now implicitly threatening those who report on it with defamation lawsuits? So not only is he trying to censor the internet, he's trying to intimidate reporters into shutting up as well. Free speech be damned.
But it's okay. It's all for the children of Mississippi. And the headlines.
Filed Under: aiding and abetting, cda 230, copyright, free speech, illegal drugs, internet, jim hood, mississippi, piracy, secondary liability
Companies: google, mpaa
