Originally written for and cross-posted at Lawfare
Over the past decade, concern over Big Tech bias against conservative speech and speakers has dominated the narrative from the right. From repeated calls to repeal Section 230 of the Communications Decency Act to Donald Trump’s executive order attacking Twitter for censorship and subsequent petition from the National Telecommunications and Information Administration to the Federal Communications Commission (FCC) to reinterpret Section 230 to the passage of state anti-deplatforming laws in Florida and Texas that are now on their way to the Supreme Court, the memetic notion of liberal Silicon Valley tech workers secretly intervening to thwart the interests of conservatives has increasingly manifested in legal challenges to alleged discrimination by technology. The movement has now trained its sights on an unexpected target: Gmail’s spam detection.
On Oct. 21, the Republican National Committee (RNC) filed suit against Google, claiming the internet giant had “unlawfully discriminat[ed] against the [RNC] by throttling its email messages because of the RNC’s political affiliations and views” through the provision of Gmail. In particular, the RNC claims that Google “suspiciously” sends RNC emails to Gmail users’ spam folders at the end of the month, coinciding with fundraising drives.
As a practical matter, this lawsuit is alarming because it frames email providers as agents not for their users but for the senders of email, limiting or maybe even eliminating the ability for providers to offer spam detection services, which would make email effectively unusable. Mike Masnick has a detailed take on the pernicious policy implications of the RNC’s position.
Here, though, I want to dig into the legal merits of the RNC’s claims, which I think are dubious. Channeling the recent decision by the U.S. Court of Appeals for the Fifth Circuit that upheld Texas’s social media anti-deplatforming law, the RNC complaint draws comparisons to regimes prohibiting discrimination in the telegraph and telephone systems, internet service providers, social media platforms, dating and finance applications, and search engines under a wide range of common carriage, public accommodation, and general anti-discrimination laws. The arguments attempt to paint the RNC’s claims against a legal backdrop that essentially never allows information platforms to discriminate.
The trouble with the RNC’s pointillistic arguments is that they invoke a bunch of different laws that apply different rules to different kinds of platforms in different contexts. As I argue in a recent paper, the right way to think about these questions is to consider whether a platform fits into the scope of the specific statutory scheme being invoked and whether the discriminatory act the platform is (allegedly) engaging in implicates the specific ban in the statutory scheme.
Taking each of the statutory schemes in turn, the weaknesses of the RNC’s arguments become clearer. Indeed, many of the examples that the RNC marshals of “nondiscrimination obligations states like California have enacted” are not actually part of the complaint. Though the RNC trumpets the Texas social media law, which contains a prohibition on discrimination by email providers, and a case treating Google Search as a common carrier under Ohio law, the lawsuit’s claims focus (almost) exclusively on California law. The RNC also invokes a case about California’s net neutrality law but (sensibly) doesn’t make it a part of the claims because its non-discrimination ban applies only to broadband providers, not email services like Gmail.
Common Carriage Law
The first concrete legal claim the RNC makes is that Gmail’s spam detection violates California’s common carrier law. A telegraph-era statute enacted in 1872 and amended most recently in the 1873 to 1874 range, the relevant text is fairly simple:
Every one who offers to the public to carry … messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.
…
A common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry.
…
A common carrier must not give preference in time, price, or otherwise, to one person over another.
…
A common carrier of messages … must transmit messages in the order in which he receives them[.]
So, how does this bear on Gmail’s spam detection? The RNC’s first problem is that the message carriage portion of the statute has seldom been applied by the courts to much of anything, much less to internet platforms. The only case cited by the RNC is a 1979 California Supreme Court case, Goldin v. Public Utilities Commission, that declares in one line that telephone companies are common carriers, with no further analysis. But the only case Goldin relies on is a 1942 appellate case, People v. Brophy, that doesn’t address that issue specifically, and the only other appellate case I can find that raises the question, Riaboff v. Pacific Telephone & Telegraph (1940), notes a “total absence of authority on the point” and declines to address it.
Even if California’s ancient common carrier law applies to telephone companies, it’s not obvious that it also applies to email providers. The statute’s unexplained amendment to exclude “telegraphic messages”—does this encompass email?—and the fact that California felt the need to enact an entirely separate net neutrality statute to extend non-discrimination obligations to internet service providers (ISPs) suggests that the scope of the statute is intended to be understood as relatively narrow.
It also is unclear how the mechanics of the statute, which seem to contemplate the delivery of a message from a sender to a recipient by a single carrier, would map onto a service like email. As Masnick notes, email is a decentralized service offered by a wide range of providers that communicate via open protocols. Unlike centralized social media platforms like Facebook and messaging applications like iMessage, anyone can run their own email server. Assuming the server adheres to the open protocols that all other servers use, all of the users of that server can send and receive communications to and from users on other servers. And, though large companies like Google and Microsoft provide popular, widely used email services, many people, companies, educational institutions, and governments operate their own.
One consequence of this arrangement is that a sender’s email service must rely on the recipient’s service to complete the delivery. With that in mind, applying California’s common carrier law to email raises the question: Does every email service “offer to the [sending] public” to deliver every message sent to its users?
The long and well-understood role of spam prevention, which is critical to prevent email services from collapsing under the load of unwanted spam and preventing users from accessing wanted messages, seems to suggest that whatever offer an email service makes to complete delivery to its users is, at most, qualified. It’s also important to underscore that any “offer” made to an email sender to complete delivery typically is not a commercial one for which money will be exchanged, but merely a compliance with open technical protocols. And the development of those protocols has long contemplated the mitigation of spam.
The RNC puts significant stock on the other side of the offer—the notion that Gmail’s users have requested the sent emails by signing up for campaign email lists. As a factual matter, it’s unclear the extent to which this is true. For example, Republican pundit Erick Erickson alleges sloppy list management by the RNC that results in the delivery of emails from lists for which recipients have never signed up. It’s also questionable that the RNC has standing to make these complaints on behalf of Gmail’s users, who are not a part of the lawsuit.
But even assuming the premise is valid, the offer Gmail makes to its users pretty obviously contemplates the provision of spam prevention—for example, the second marketing bullet point on Gmail’s home page touts that “Gmail blocks 99.9% of spam … from ever reaching your inbox.” Google’s terms of service rather prominently highlight the use of “artificial intelligence and machine learning … to better detect and block spam.” The spam folder is presented prominently in Gmail’s user interface. Perhaps the precise contours are debatable, but it’s pretty clear that spam prevention is a core part of Gmail’s “offer.”
As an aside, the fact that spam mitigation is a widely understood and accepted premise of just about every commercial email service poses another problem for the invocation of the California common carrier statute. Common carrier regimes that apply non-discrimination regimes to firms that “offer” (or “hold out” to provide) services to the public perennially run into the trouble that the behavior supposedly barred by the statute (publicly discriminating, or not providing service to some parts of the public) also undercuts the application of the statute, because it’s hard to hold out as serving everyone when discrimination is an obvious feature of your service. This kind of Möbius-strip dynamic bedeviled the D.C. Circuit’s arguments about net neutrality and is likely to arise here.
Even if the common carrier statute does reach email providers and impose an obligation on the receiving side, it’s still unclear that Gmail funneling messages to a user’s spam folder violates the specific ban on discrimination in the statute. The cornerstone of the RNC’s complaint is not that emails aren’t delivered, but that they aren’t “inboxed”—that is, they end up in a user’s spam folder instead of their inbox folder. Emails are still accessible—just in a different mailbox. It’s hard to argue that this is a failure to “accept and carry” the emails or to transmit them in the “proper order.” Does directing to spam versus the inbox constitute an unlawful “preference?” Fitting the detailed features of a modern email service seems quite far beyond the technologies that the California legislature might have contemplated 150 years ago in drafting the common carrier law.
The Unruh Act
This brings me to the second claim the RNC makes, which is that Gmail’s treatment of the RNC’s email violates California’s Unruh Act. The Unruh Act is a general non-discrimination law that declares:
All persons within the jurisdiction of this state are free and equal, and no matter what their [long list of protected characteristics] are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
The Unruh Act is a fair bit more expansive in its coverage than the common carrier statute. Indeed, it’s perhaps easier to argue that Gmail is a “business establishment” with respect to incoming email senders seeking to reach its users, given the courts’ broad treatment of the term and the “of every kind whatsoever” qualifier. And, though the statute does not specifically include political affiliation, the RNC observes that it has been extended to cover political discrimination by the courts.
The problem for the RNC, though, is that the Unruh Act is pointedly targeted at intentional discrimination. The act specifically declares that it:
shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of [long list of protected characteristics].
Moreover, the California Supreme Court has recognized that the Unruh Act does not preclude discrimination related to a “legitimate business interest.” All this is to say that the RNC’s claim here rests on proving with some degree of specificity that Google is intentionally discriminating against the RNC on the basis of its politics and that the RNC is not merely inferring the appearance of a disparate impact based on Google’s ordinary operation of its spam prevention facilities.
Here, the RNC’s complaint falls short, presenting no specific evidence of intentional discrimination on Google’s part. Instead, the RNC rests on a disparate-impact-style analysis, suggesting that its third-party analysis of its “inboxing” rates can be explained only by intentional discrimination on Google’s part.
Even if this kind of disparate impact argument could be enough to satisfy the statute, its invocation puts the onus on the RNC to prove that its emails really are being treated differently by Google on the basis of the RNC’s political affiliation. While evaluating the details is beyond the scope of my expertise, other commenters are skeptical. Masnick bluntly argues that “Republican politicians send a shit-ton of spam.” His take is surprisingly supported by Erickson, who declares that the “problem is not Google … , but the GOP consultant class.” Erickson characterizes the situation not as “Google abusing Republican emails” but, rather, as “Republican consultants abusing email [addresses] they have access to and Google … protecting [its] users from spam.” Erickson also notes that Democratic campaigns get snared in Google’s spam traps less often because they engage in “good email stewardship.”
Loose Ends
The remainder of the RNC’s claims are mostly an array of generic tort-style claims—unfair competition, intentional and negligent interference with prospective economic relations, and general negligence. I’m not a tort law expert, but these claims also seem susceptible to the same kinds of problems that are likely to undercut the common carriage and Unruh Act claims—namely, that Google doesn’t owe much of a duty to the RNC and that the RNC’s discrimination claims are questionable as a factual matter. And we haven’t even gotten to the array of defenses that Google is likely to raise. I expect one will be an assertion that its spam detection is protected by the First Amendment. Another likely defense will be that the application of these California laws raises an array of federalism and preemption issues, including under Section 230 of the Communications Decency Act.
One more claim that I can’t help but call out, though, is the assertion that Gmail is subject to provisions of Title II of the Communications Act. This is a real screwball—the Republican FCC, under Chairman Ajit Pai, spent the better part of former President Donald Trump’s turn in office overturning the application of net neutrality rules under Title II to ISPs and trying to stop California from filling in the gaps with its own statute. And though Title II has long been applied to the phone network as a basic communications application, the Pai FCC (rather ironically, given the posture of this case) put text messages outside Title II’s scope on the grounds that doing so was necessary to allow phone companies to stop spam texts. More importantly, as the RNC’s complaint concedes—neither the FCC nor the courts have blessed the application of Title II to email.
The RNC’s maneuver here—couched as “preserv[ing] the issue for further review or intervening Supreme Court precedent”—leaves me scratching my head. Is this attempting to pour a crude intellectual foundation for a future Republican FCC to apply Title II to email providers (or social media)? Given the long-standing Republican opposition to applying Title II to, well, much of anything to do with the internet, we would truly be through the looking glass relative to the pre-Trump conservative telecom law orthodoxy.
In any case, it seems clear that with this action, as with the Texas common carrier law’s non-discrimination obligation for email providers, Republicans intend on bringing non-discrimination law to bear on tech platforms more broadly. For now, though, I’m skeptical that the RNC has the law on its side in California.