'No Basis' to Sue Email Service Provider for Spam Folder Sorting: Google

There’s "no basis" for an email sender to sue the provider of an email service “just because some of the sender’s emails were sorted into users’ spam folders,” said Google’s reply Monday (docket 2:22-cv-01904) in U.S. District Court for Eastern California in Sacramento in support of its motion to dismiss the Republican National Committee’s complaint.

The RNC sued Google Oct. 21 for alleged violation of the Telecommunications Act, saying the suit was “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 (see 2302280061).

In its Jan. 23 motion to dismiss, Google said the suit should be dismissed “for a variety of independent reasons,” 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.”

The RNC “stated a common-carrier claim under California law,” said its Feb. 27 opposition to Google’s motion to dismiss. 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,” the RNC said. A California court rejected that argument, and courts in the 9th Circuit “also rejected that terms of service negate common-carrier status under California law,” the RNC said.

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.

Even if Google delivered the emails “by (un)intentionally consigning them to spam, Google violated its duty to care,” alleged the RNC. Google also “refused” or “postponed” transmitting the RNC’s emails “when it relegated them en masse to the spam folder.” The RNC alleges Google deliberately channels its fundraising emails to donors’ Gmail spam folders out of “partisan animus.” RNC emails wind up in spam especially during the crucial end-of-month periods when fundraising activities reach their peak, it alleged.

In its Monday reply, Google said the RNC was urging the court to “adopt bizarre interpretations of the law that no other court has adopted and to read facts into its Complaint that simply are not there.” The RNC “cannot explain why Google would sort the RNC’s emails into spam folders for only a few days at the end of each month -- but not at any other time -- if Google meant to discriminate,” said the tech company’s reply. The RNC said the end of the month is when its fundraising is most successful, “but the RNC does not allege that Google knew that,” said the reply.

Google spent 10 months “repeatedly trying to resolve the alleged inboxing issue," it said, and “even provided the RNC with ‘suggestions’” that had a “significantly positive impact.” The RNC’s “only retort is that it is no ‘defense’ that Google ‘could’ve discriminated more often and more invidiously,’” said Google’s reply.

The complaint admits Google gave the RNC at least six explanations for the alleged fluctuations in the RNC’s inboxing rate, based on “ordinary aspects of bulk email management and spam filtering technology,” rendering the RNC’s “speculative theory of discrimination even more implausible,” Google said.

An A/B test conducted by the RNC supported that the determination of whether an email was sorted to an inbox or spam folder didn't depend on whether it was the RNC sending the email, Google said. The only difference in the emails was the hyperlinks to different variants of an external RNC webpage, so “the hyperlinks themselves determined whether certain emails were treated as spam -- not the RNC’s ‘political affiliation,’” said Google’s reply.

A North Carolina State University study the RNC used to show “intentional discrimination” didn’t address end-of-month drop rates, said Google’s reply, and one of the researchers in the study “has since refuted claims that it reveals the sort of political bias alleged by the RNC,” it said.