At SCOTUS, South Carolina agency seeks immunity from Google subpoena

WASHINGTON (CN) — South Carolina’s parks department asked the Supreme Court on Thursday to let it avoid a subpoena in an antitrust lawsuit against Google.

The Palmetto State is part of a multi-state lawsuit against the tech giant for its influence over online advertising. During discovery, Google issued a subpoena for records from the state’s Department of Parks, Recreation and Tourism, including its proprietary online advertising file.

The agency tried to use an immunity defense to skirt the subpoena, but the Fourth Circuit rejected its argument. South Carolina’s parks department then asked the Supreme Court to step in.

“The decision below improperly intrudes into every state’s prerogative to order its own government and disregards foundational principles of federalism,” the department wrote in an emergency application. “This court’s guidance is needed on this important question discerning the balance of state and federal power.”

South Carolina’s attorney general objected to Google’s first subpoena request, claiming he didn’t have possession, custody or control over department records. The department said that since the attorney general is a separate publicly elected constitutional state officer serving the public, he doesn’t have constitutional authority to subpoena records.

In contrast, the governor needs authority over agency records to provide oversight.

Google then subpoenaed the department directly — but the agency said the separation between the attorney general and executive agencies preserved its sovereign immunity. The Fourth Circuit threw out the argument, reasoning that sovereign immunity belongs to the state.

“This leaves no separate identity or authority of state agencies: ‘Put simply, the arm is the state, and the state is the arm,’” the department wrote.

South Carolina’s parks agency said the ruling violated state law and broadly expanded the power of state officials through judicial fiat.

“Federal interference with this balance ‘strikes at the heart of the political accountability so essential to our liberty and republican form of government,’” the department wrote.

South Carolina has passed a law stressing that the attorney general is not acting on behalf of or representing individual agencies — or in possession, custody, or control of their records — in cases like this one. And the attorney general has no executive control over the Department or right to obtain its records. But the Fourth Circuit held the will of the state “does not matter.”

The Parks Department says it either has to comply with the subpoena and moot its lawsuit or risk contempt.

“A stay for one South Carolina agency will not harm Google any more than its decision to not subpoena any arm of state government in 33 states — that is to say, it will not harm Google at all,” the department wrote. “That likely is why Google never sought to enforce its subpoena until 65 days after the Fourth Circuit issued its mandate — and only after the Department asked Google if it would consent to a stay. Granting a stay now will not materially change Google’s position.”

Texas, South Carolina and 16 other states have argued in their lawsuit that Google stifled competition in the advertising industry by monopolizing the online ad business. They claim Google cut a deal with Facebook that manipulated auctions for mobile app ad space in the social site’s favor to avoid competition with the tech giant’s ad exchange.

The case is scheduled for trial in March 2025. The Justice Department filed a similar suit in 2023.

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