Google Owns ‘Common-Carrier Liability’ by Sending Emails to Spam: RNC

The Republican National Committee’s Oct. 21 complaint against Google (see 2210260080) “is about the market-dominant communications firm unlawfully preventing one of the two major national political parties from communicating its political and fundraising messaging to millions of Americans” through Gmail. So said the RNC’s opposition Monday (docket 2:22-cv-01904) in U.S. District Court for Eastern California in Sacramento to Google’s Jan. 23 motion to dismiss (see 2301240033).

The RNC alleges Google is deliberately channeling its fundraising emails to donors’ Gmail spam folders out of “partisan animus.” It alleges its emails wind up in spam especially during the crucial end-of-month periods when fundraising activities reach their peak.

The RNC’s claims should be dismissed “for a variety of independent reasons,” said Google’s Jan. 23 motion. Its sole federal claim is that Google violated the Telecommunications Act, it said. But the TCA applies only to common carriers, and “binding authority makes clear that email services like Gmail are not common carriers under federal law,” Google said.

But the RNC “stated a common-carrier claim under California law,” said its opposition. Google, through its Gmail service, “is a common carrier of messages,” it said. “Google insists that it doesn’t offer services to the public because it’s only willing to do business with users who agree to its terms of service,” it said. “But a California court long ago rejected that argument.” Courts in the 9th Circuit “also rejected that terms of service negate common-carrier status under California law,” it said.

Google is offering the public “the service of sending and receiving electronic messages, which necessarily includes ‘carrying’ those messages,” said the RNC’s opposition. Google provides instructions for non-users and users on sending and receiving emails, it said. Google also offers “to receive emails from non-Gmail users and deliver them in the Gmail user’s inbox,” it said. “Email service providers like Gmail thus offer themselves to the public as merely conduits for sending and receiving messages just like the telephone.”

Contrary to Google’s contention, “it doesn’t matter that the RNC is a non-Gmail user emailing a Gmail user,” said the RNC’s opposition. “Google’s offer to carry messages extends beyond those who have Gmail accounts,” it said. People using email service providers other than Gmail “may still send messages to Gmail addresses,” it said. “Indeed, Gmail welcomes such emails, as it welcomes all email users that agree to its terms of service.”

Just because Google doesn’t transport the email the entire way to its recipient doesn’t “absolve it from common-carrier liability,” said the RNC. “Common carriers have typically transmitted a message using several companies.” Google’s liability, even if it’s just the final company handling email delivery, “mirrors the treatment of a common carrier’s delivery of goods using multiple vendors, where the company that carries the goods to their destination is liable for a mis-delivery,” it said.

Google violated its common-carrier obligations, and the RNC “stated a common-carrier violation in two ways,” said the opposition. Even if Google delivered the emails “by (un)intentionally consigning them to spam, Google violated its duty to care,” said the RNC. Google also “refused” or “postponed” transmitting the RNC’s emails “when it relegated them en masse to the spam folder,” it said.