The Republican National Committee sued Google on Friday in a California federal court, alleging the tech giant intentionally diverted millions of RNC emails to the spam folders of supporters and potential donors to throttle its political speech. The RNC’s lawsuit proves significant both factually and legally.
Factually, the lawsuit details extensive circumstantial evidence indicating Google has manipulated its email service to disadvantage the Republican organization. The RNC’s 28-page complaint reveals that “for most of each month, nearly all of the RNC’s emails make it into users’ inboxes,” but that “at approximately the same time at the end of each month, Google sends to spam nearly all of the RNC’s emails.” “Critically, and suspiciously,” the complaint continues, “this end of the month period is historically when the RNC’s fundraising is most successful.”
The RNC’s complaint further claims it worked with Google for 10 months to resolve the issue but received only ever-changing excuses, failed solutions, and eventually silence, leading it to conclude, “Google is intentionally sending critical RNC emails to the spam folder because it’s the RNC sending them.” To support that inference, the RNC highlights the low “inboxing rate” an outside firm found for RNC emails at select times of the month.
The “inboxing rate” represents the percentage of times a sender’s email reaches a user’s inbox. The RNC retained a leader in the field of assessing inboxing rates, called Validity, which used a platform to analyze said rate. According to the complaint, Validity performed a statistical analysis to assess the rate of RNC emails that reached the inbox versus the spam filter. And because the RNC’s email list consists solely of people who have requested to receive emails from the RNC, the Republican organization maintains that few if any emails should reach the spam filter.
But the statistical analysis uncovered “egregious discrimination” that began at least in February of 2022, according to the lawsuit. That month, the RNC explained in its complaint, as it began working on matters related to the 2022 midterm election, its “‘inboxing’ rate suddenly dropped from rates consistently above 90% to nearly 0% on certain days during the last week of each month.” An “inboxing rate” of nearly 0 percent means that almost every email sent from the RNC to a Gmail user ended up in the spam folder.
To support its claim that Google purposefully pushed RNC emails to recipients’ spam folders, the RNC complaint cataloged the various explanations Google provided for the problem and refuted them. The RNC also stressed that, unlike Google, neither Yahoo! Mail nor Microsoft’s Outlook Mail had “inboxing” rates dropping to nearly 0 percent.
Additionally, the RNC cited a recent study by researchers at North Carolina State University that found “Google’s Gmail labels significantly more campaign emails from Republican political candidates as spam than campaign emails from Democratic political candidates.” Specifically, that study “found that Gmail labeled only 8.2% of Democratic campaign emails as spam, compared with 67.6% of Republican campaign emails.”
Based on these factual allegations, the RNC alleged claims under eight separate counts, ranging from violations of California’s Unruh Civil Rights Act, which prohibits discrimination in the provision of services based on political affiliation, to the state law tort of negligent interference with prospective economic relations. Most significantly, legally, however, is the RNC’s claim under the federal Telecommunications Act.
Under the Telecommunications Act, common carriers hold various non-discrimination obligations. And according to the RNC’s complaint, Google is a common carrier, which the Telecommunications Act defines as “any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy…” Thus, the RNC continues, the Telecommunications Act prohibits Google from discriminating against the RNC based on its political viewpoint.
In pursuing its claim against Google under the Telecommunications Act, however, the RNC acknowledges that the Federal Communications Commission does not classify email providers as common carriers subject to the nondiscrimination obligations of the statute and that courts have upheld the FCC’s determination. Thus, under controlling precedent, the RNC’s claim against Google under the Telecommunications Act will fail.
Nonetheless, the RNC brought the Telecommunications Act claim to challenge that precedent, the complaint explains, stressing that while the technology may be different, “at bottom, Google’s email service is a modern-day Western Union: Google offers to carry messages in the form of electronic mail.” The reference to Western Union proves significant because discrimination by the telegraph giant of begone years — including by targeting political speech — led to the regulation of common carriers.
The courts, however, have yet to accept that argument in the context of email service, leaving the RNC with its state law claims and an argument on appeal for the courts to reconsider what a “common carrier” means in the modern world.
Those state law claims offer their own upside, however, namely providing the RNC an opportunity to expose, through discovery, proof of political discrimination by Google.