Using the Communications Decency Act as the “It’s Never Us” Defense: Determining Whether States Can Subpoena Google

On Friday, February 13, 2015, a Mississippi federal judge, Judge Henry T. Wingate, held a hearing to determine whether or not Google had to turn over documents in response to a subpoena issued to it by Mississippi Attorney General, Jim Hood. The 79-page subpoena in question was issued in October 2014. It ordered Google to produce information on its search engine, autocomplete function, and YouTube ad revenues. The subpoena specified 141 document requests and 62 interrogatories. Hood claims to be asking for this information as part of his investigation to determine if Google is aiding criminals in piracy, illegal drug sales, and other illegal activities and to determine if Google could be liable for violating Mississippi consumer protection laws.
One of Google’s defenses to not responding to this subpoena is Section 230 of the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230. This Act provides that “No provider or user to an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Many websites that allow third-parties to post information often cite to this Act to escape liability for any harm that arises out of users trusting other users’ posts. Google claims in their brief that the CDA provides broad immunity to internet computer service providers, especially from state and local law enforcement that seek to prosecute these providers for third-party content. They claim that the broad immunity covers barring subpoenas for information “pertaining to immunized conduct.” Without this bar on subpoenas, Google claims, state officials could strip internet service providers of their CDA immunity by serving providers with “endless burdensome demands.”
Groups in opposition to Google and in support of Attorney General Hood’s subpoena, such as the International AntiCounterfeiting Coalition, claim that the CDA does not provide broad immunity to internet service providers such that states can never subpoena documents from these providers. They claim that the better public policy would be to read the CDA as perhaps offering a defense to conduct that is considered actionable. However, in early stages of investigations where Attorney Generals want to gather information to simply determine whether or not a company has engaged in actionable conduct, the CDA should not immunize internet service providers from having to provide requested information to investigating Attorney Generals. If the CDA offered immunity to all subpoenas, Attorney Generals would never be able to gather enough facts to determine when citizens of their states were being harmed. Interestingly, the International AntiCounterfeiting Coalition concede that if information were found, the CDA could still provide a defense to these allegations. This seems to support Google’s claim that subpoenas could become overly burdensome if internet service providers were forced to comply with subpoenas even when the CDA offers a clear defense and the lawsuit over the allegation would likely fail.
Judge Wingate is set to issue a ruling on Tuesday, February 24, 2015. It will be interesting to see what Judge Wingate decides. On one hand, Attorney Generals are charged with protecting their citizens from harm that arises from illegal activity. On the other hand, there is a long history of allowing internet service providers to be shielded from liability through the CDA in order to prevent providers from having to regulate users’ speech. In fact, the text of the CDA even states that one of the policies behind this Act is “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
If Judge Wingate were to force internet service providers to produce documents when subpoenaed, this could lead to increased regulation of third-party content by internet providers. Internet service providers could choose to regulate their users’ content rather than take the risk of being subpoenaed by law enforcement later on. Even if the threat of a lawsuit were low because internet service providers could still count on the CDA as a defense to being held liable for a third-party’s content, the burden of having to compile documents to answer a subpoena may be incentive enough for internet service providers to begin closely regulating the information that can be posted on their websites. Additionally, because service providers could be subpoenaed for information by state officials to determine if they are breaking any state laws, there may be added incentive to provide even more regulations so that internet service providers can be in compliance with the laws of all fifty states.

This could greatly hinder the amount of free speech that the internet currently fosters.