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EFF Fights Subpoena by Mississippi AG of Google

(CN) - The subpoena of Google by Mississippi's attorney general is a blatant attempt to chill online speech while burdening service providers, several nonprofits told a federal judge.

Electronic Frontier Foundation made the argument in a Feb. 2 amicus brief with the court in Jackson where Google is resisting a 79-page subpoena by Attorney General Jim Hood. Public Knowledge, New America's Open Technology Institute, Center for Democracy & Technology, and R Street Institute joined the brief.

Google wants the court to hold the subpoena, seeking information about Google's policies with respect to Internet searches for child pornography and illegal drug sales, invalid.

The EFF echoed Google's claims that Hood was improperly influenced by major Hollywood studios trying to crack down on pirated movies.

Indeed some of the documents disclosed in North Korea's hack of Sony "outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant," the group said in a statement.

For the EFF, the Communications Decency Act "precludes a state official from saddling any Internet service provider with burdensome and costly discovery based primarily on the provider's refusal to monitor, take down, or block disfavored third-party content."

Requiring online service providers to respond to subpoenas based on third-party conduct could be extraordinarily expensive, according to the amicus brief.

"Although some large service providers may have the resources to shoulder significant discovery burdens, a small online service provider likely would not," the brief states. "Smaller providers would therefore likely either adopt the restrictions required to avoid such a burden, or leave the business altogether, depriving users of valuable platforms for speech. Either outcome would, in turn, chill the online speech of Internet users who communicate via these platforms - exactly the result Congress sought to avoid."

EFF intellectual property director Corynne McSherry said that disregarding CDA 230, and requiring online service providers to respond in full to subpoenas like this one, would inevitably generate "extraordinary legal costs."

"That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation," McSherry said in a statement.

After Google filed its suit, Hood stepped back from his aggressive position on the subpoena, and indicated that he hoped to find a solution agreeable to both parties.

"In an attempt to resolve some of the problems the states' chief law enforcement officers have raised, I am calling a time out, so that cooler heads may prevail," Hood said in a December statement .

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