Google Tells Court That GOP Should Look At Its Own Email Practices Rather Than Blaming Gmail
As we noted recently in reporting on the FEC dismissing the Republican's laughably ridiculous complaint that Google was dumping their fundraising emails into the spam folder as an in-kind contribution" to Democrats, there was still the GOP's even more ridiculous lawsuit. Last week, Google filed its response, and it's... worth reading to see how thoroughly and completely it dismantles the GOP's silly complaint. Most of the news coverage of the complaint has been about how Google mentions in passing that it's ending the pilot program" it set up to allow politicians to avoid the spam folder. However, I think this is a misread of what's in the filing. It just notes that The Pilot Program is scheduled to run through January 31, 2023," which is the nature of a pilot program." It's unclear if Google will look to continue it or bring it back during the next election season.
Still, the reply brief is worth reading. It kicks off with a pretty clear statement:
Nobody likes spam.
And that's why we have spam filters.
That is why Google uses sophisticated spam-filtering technologies toprotect users of its free email service, Gmail, from unwanted and potentially dangerous emails.Contrary to the claims of the Republican National Committee (RNC"), Google designs its spamfiltering technology to make its product better for users-not for any political or partisanpurposes. Indeed, effective spam filtering is a key feature of Gmail, and one of the main reasonswhy Gmail is so popular
And the FEC's rejection of the similar complaint was well timed for this response:
The RNC is wrong. Gmail's spam filtering policies apply equally to emails from allsenders, whether they are politically affiliated or not. Indeed, the Federal Election Commission(FEC") has already rejected the RNC's political-discrimination theory, finding that Gmail filtersspam to enhance the value of the Gmail product," not to influence any election for federaloffice."
The response also notes that the RNC never bothered to participate in the pilot program when it had the opportunity:
Ironically, the RNC could have participated in a pilot program during the 2022 midtermelections that would have allowed its emails to avoid otherwise-applicable forms of spamdetection. Many other politically-affiliated entities chose to participate in that program, whichwas approved by the FEC. The RNC chose not to do so. Instead, it now seeks to blame Googlebased on a theory of political bias that is both illogical and contrary to the facts alleged in its ownComplaint. And even if the RNC could somehow plausibly allege such a theory-which it has notdone and could not do-its claims should be dismissed for a variety of independent reasons.
We knew this already. It was clear that the Republicans deep down inside know that it's their own spammy habits that are the problem, which is why they ignored the pilot program that would have given them what they wanted. Because part of being in the pilot program was that if you were in the program and were seen to be engaging in spammy activity, Google would dump you from the program.
I think much of this response is better read if you mentally read the sentences as if they're dripping with sarcasm. I mean:
The Complaint identifies several potential explanations for the alleged fluctuations in theRNC's inboxing rate, most of them mundane. For example, Google allegedly informed the RNCthat the fluctuations could be addressed by reduc[ing] the frequency of emails that [the RNC]sends at the end of each month." ... (The RNC does not say whether it heeded that advice,suggesting that it did not.) Nevertheless, according to the RNC, the only reasonable inference" isthat Google is intentionally sending critical RNC emails to spam folder[s] because it's the RNCsending them." ... In other words, the RNC claims Google suppress[es]" the RNC's emailsat the end of each month because Google disagrees with the RNC's political views.... TheComplaint does not explain why, if Google harbored such deep-seated animus toward the RNCand its political beliefs, Google would target the RNC's emails only at the end of each month.Undeterred by that and other gaping holes in its theory, the RNC alleges no fewer than sevenclaims against Google. Every claim fails for the reasons below.
As the complaint notes, while the case is filed in federal court, there's only one federal claim, and it makes no sense:
The RNC's sole federal-law claim alleges that Gmail's spam filtering violates theTelecommunications Act... But the Act's nondiscrimination obligations apply only to common carriers." 47 U.S.C. 202(a). And, as the RNC admits, binding precedent" holds that email providers," like Gmail, are notcommon carriers" under the Act.
Oops.
Google notes that the RNC's own complaint provides six other reasons why the RNC emails may end up in spam, including things like the frequency" of emails, the high number of user complaints," and some technical issues. But then ignores all of those to insist it's because of discrimination. But Google notes that makes no sense:
Other facts alleged (and not alleged) further undermine the RNC's discrimination theory.For example, the RNC concedes that Gmail has inboxed the RNC's emails-in other words, hasnot routed them to spam folders-at rates consistently above 90%" for most of each relevantmonth.... The RNC offers no plausible explanation for why Google would inbox theRNC's emails at such a high rate for the vast majority of the relevant time period if Google's truegoal was to suppress[] the [RNC's] political speech and income." ... Similarly, the RNCoffers no plausible explanation for why, if Google meant to discriminate against the RNC, Googlenevertheless gave the RNC multiple suggestions" that had a significantly positive impact" onthe performance" of the RNC's emails.... The RNC also fails to explain why, if Google sofervently wished to target the RNC secretly," Google would do so by depressing the RNC'sinboxing rate, like clockwork, to the same degree and at the same time each month.
The RNC's complaint relied heavily on an A/B test it conducted, but Google notes that test actually undermines the RNC's own claims of political discrimination:
As the RNC admits, the A/B test suggests that Google is notsuppressing RNC emails based on their communicative content," i.e., based on the politicalpositions expressed by the RNC. Id. (emphasis added). That is obviously correct, and it isdevastating to the plausibility of the RNC's discrimination theory. After all, if Google is notsuppressing the RNC's emails based on the emails' communicative content," then it is hard tosee how the RNC (or this Court) could reasonably infer that Google is discriminating against theRNC based on its political affiliation" or its political views."
It goes on like this debunking one bad argument after another.
And there's even a Section 230 argument here - using (c)(2), the part of 230 that isn't often relied on, which grants liability protection for good faith moderation efforts.
As the Ninth Circuit hasexplained, Section 230(c)(2) grants two related types of immunity. Section 230(c)(2)(A)immuniz[es] internet-service providers from liability for any action taken to block" content thatproviders or their users deem objectionable, while Section 230(c)(2)(B) immunizes providersfrom liability for help[ing] users block offensive and objectionable online content," including byproviding software that filters [s]pam, malware, and adware." Malwarebytes, 946 F.3d at 1047,1052, amended (Dec. 31, 2019). Here, the RNC's claims against Google are barred by both typesof Section 230(c)(2) immunity.
As for the argument that Google's efforts are not in good faith"? Well...
The RNC likely will argue that Google's spam-filtering activities were not undertaken ingood faith" because they were motivated by political bias. 47 U.S.C. 230(c)(2)(A). But again,the RNC's Complaint does not plausibly allege that Google targeted the RNC's emails at all, letalone for improper reasons.... The RNC therefore has not met its burden ofalleging the absence of good faith," and its claims are barred.
And, of course, there's a more typical 230(c)(1) argument as well:
As explained above, Google is a provider of an interactive computer service" (namely,Gmail) under Section 230. See supra at n.7. And it is undisputed that the bulk emails at issuewere created by the RNC, not by Google. Thus, the first and third requirements for Section230(c)(1) immunity are easily met. The only remaining question is whether the secondrequirement-treatment as a publisher"-is also met.
The answer is yes" because the RNC plainly seeks to hold Google liable based on itsexercise of a publisher's traditional editorial functions." Jones, 755 F.3d at 407. All the RNC'sclaims boil down to the same idea: that Google improperly routed the RNC's emails to users'spam folders. But deciding how to organize and display content created by others is one of themost essential editorial functions" of all.... Accordingly, the Ninth Circuit has held that Section 230(c)(1) bars claims based onproviders' choices about how to curate content, including when those choices are made viaautomated systems like spam filters.
Of course, this was never actually about Gmail's spam filters. It has and will continue to be about (1) the companies that the GOP uses to spam gullible voters looking for someone to blame for declining donations, and (2) GOP politicians continuing to wage a nonsensical culture war against internet companies, because it has no actual policy proposals that matter to its rabid base.