Mississippi Attorney General Jim Hood has been a persistent critic of Google, complaining that the company's search engine leads consumers quickly to everything from pirated movies to illegal pharmaceuticals. In late October, Hood sent a broad subpoena to Google, which was recently published by The New York Times.

Now, Google has gone on the counterattack, asking a federal judge to throw out (PDF) Hood's subpoena. The search giant is quick to point out that Hood's entire investigation was undertaken "following a sustained lobbying effort from the Motion Picture Association of America."

Google says that Hood's efforts to force it to censor and rearrange its search results are barred by multiple laws. The first is Section 230 of the Communications Decency Act, which generally makes websites immune from lawsuits over what's published by third parties. The company also argues search results are protected by the First Amendment, since "the state can no more tell a search engine what results to publish than it can tell a newspaper what editorials to run."

Hood's subpoena seeks information from Google on a wide range of issues, from steroids and "bath salts" to credit cards and fraudulent documents. In its motion, Google agrees that much of the content Hood is concerned about is "objectionable." But the company argues it already blocks huge amounts of content that violate its own policies or the law, "blocking or removing hundreds of millions of videos, web pages, advertisements, and links in the last year alone." Those efforts "go well beyond Google's legal obligations."

Google suggests that if Hood's investigation is allowed to proceed, it's nothing less than a threat to the open Internet. Google lawyers write:

If a state Attorney General can punish, irrespective of well-established federal law, any search engine or video-sharing platform whenever he finds third-party content he deems objectionable, search engines and video-sharing platforms cannot operate in their current form. They would instead have to pre-screen the trillions of websites and millions of videos on the Internet, blocking anything they had not yet reviewed from being publicly accessible so as to avoid the ire of even a single state or local regulator.... The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have denied him the authority to mandate it.

In its motion, Google is asking a federal judge to block the Mississippi subpoena, which is due January 5, as well as prevent Hood from bringing a charge under Mississippi law as he has threatened.

“Threats and Demands”

In a portion of the memo, Google explains the limits it puts on its services. "Google restricts search results under very limited circumstances, such as web pages it has identified as a source of child pornography; content found by a court to be unlawful; spam; malware; sensitive personally identifying information (e.g., credit card and social security numbers); and shocking images that Google can identify automatically," Google lawyers explain.

Unlike the fairly open Google search, which points mostly to non-Google Web pages, YouTube is more restrictive, with guidelines that limit what's on the site. Google ads have even more restrictions, "because they are used to promote third-party products, services, and websites." Last year the company "disapproved" more than 428 million ads and terminated more than 900,000 AdWords advertisers.

Those restrictions aren't enough for Hood, who has made "increasingly strident allegations" against Google, threatening criminal and civil action and publicly stating that Google has been "aiding and abetting," even "encourag[ing]... illegal activity."

One of Hood's letters critical of Google, published earlier this week by The New York Times, was "largely written by lawyers for the movie industry," the company points out.

Despite the variety of issues in Hood's subpoena, the focus is "on websites containing allegedly infringing content," Google lawyers say. They continue:

He has demanded that Google promote in its Search results sites that have been endorsed by Hollywood, display an icon alongside such favored sites in its results, and de-index sites "substantially dedicated to intellectual property infringement." While these changes might suit the business interests of certain copyright holders, the Attorney General has never explained the source of his authority to pursue alleged copyright infringement, an area regulated exclusively by federal law, or to demand a remedy—whole site removal—Congress explicitly rejected.

Even on Hood's non-copyright complaints, he's grabbing federal authority, Google claims. For instance, his concerns about importation of pharmaceuticals are preempted by the Federal Food, Drug and Cosmetic Act.

Despite Google's good-faith efforts to comply, Hood keeps threatening to prosecute the company and has encouraged his fellow AGs to do the same.

The motion concludes by asking for protection from Hood's 79-page subpoena; one that's "admittedly punitive," and so long, Google notes, it requires a table of contents.

Putting in a protective order would "only briefly delay" the AG's dealings with Google and "allow Google's claims to be heard," the company states. It won't stop Hood "from prosecuting actual third-party wrongdoers who created the websites and videos to which he objects."