Judge tears apart Republican lawsuit alleging bias in Gmail spam filter

A federal judge yesterday granted Google's motion to dismiss a lawsuit filed by the Republican National Committee (RNC), which claims that Google intentionally used Gmail's spam filter to suppress Republicans' fundraising emails. An order dismissing the lawsuit was issued yesterday by US District Judge Daniel Calabretta. The RNC is seeking "recovery for donations it allegedly lost as a result of its emails not being delivered to its supporters' inboxes," Calabretta noted. But Google correctly argued that the lawsuit claims are barred by Section 230 of the Communications Decency Act, the judge wrote. The RNC lawsuit was filed in October 2022 in US District Court for the Eastern District of California. "While it is a close case, the Court concludes that... the RNC has not sufficiently pled that Google acted in bad faith in filtering the RNC's messages into Gmail users' spam folders, and that doing so was protected by Section 230. On the merits, the Court concludes that each of the RNC's claims fail as a matter of law for the reasons described below," he wrote. Calabretta, a Biden appointee, called it "concerning that Gmail's spam filter has a disparate impact on the emails of one political party, and that Google is aware of and has not yet been able to correct this bias." But he noted that "other large email providers have exhibited some sort of political bias" and that if Google did not filter spam, it would harm its users by subjecting them "to harmful malware or harassing messages. On the whole, Google's spam filter, though in this instance imperfect, is not morally blameworthy." Calabretta gave the RNC partial leave to amend its complaint, but any new version of the lawsuit will have to be very different to move forward. "The Court grants Defendant's Motion to Dismiss in full on the ground that it is immune from suit on these facts under Section 230 with leave to amend to establish a lack of good faith," the order said.

Judge: Gmail isn’t a common carrier

In January, the Federal Election Commission rejected a related RNC complaint that alleged Gmail's spam filtering amounted to "illegal in-kind contributions made by Google to Biden For President and other Democrat candidates." The federal commission found "no reason to believe" that Google made prohibited in-kind corporate contributions and said that a study cited by Republicans "does not make any findings as to the reasons why Google's spam filter appears to treat Republican and Democratic campaign emails differently." The lawsuit in the US District Court "is not over" despite yesterday's ruling, RNC Chairwoman Ronna McDaniel said in a statement quoted by Courthouse News Service. "The judge has given us leave to amend and re-file our complaint. This suit represents a crucial action against Big Tech's anti-conservative bias. We look forward to filing our amended complaint and continuing this fight." While the RNC could eventually take this to a higher court, it faces a tough road in Calabretta's courtroom. Even if Google weren't entitled to Section 230 immunity, all of the RNC's "claims would still be subject to dismissal because they are either not a claim upon which relief can be granted, or because Plaintiff has failed to establish it is entitled to relief," Calabretta's order said. The RNC, which argued that Gmail should be treated as a common carrier, conceded that its common carrier claim is barred by federal law but asked the court to apply California common carrier law to Google. "However, no court, much less a court interpreting California's common carrier law, has found an email service provider to be a common carrier. This Court declines to be the first," Calabretta wrote. If the Republican group "were to amend its Complaint to seek injunctive relief only, the Court would likely dismiss the entire action for lack of subject matter jurisdiction," the order said. "As Plaintiff has conceded, its only federal claim is not viable, and if Plaintiff proceeded only on its claims for injunctive relief, the monetary hook required for diversity jurisdiction would not be met. In that event, the state law claims would be subject to dismissal."

RNC may amend two of seven claims

Five of the RNC's claims were dismissed without leave to amend. Those claims alleged a violation of California's Common Carrier Law, a violation of the state's Unruh Civil Rights Act, negligent interference with prospective economic relations under California law, unlawful discrimination under US law, and negligence under California law. The RNC's other two claims were dismissed with leave to amend. One alleges a violation of California's Unfair Competition Law. "The RNC argues that Google's conduct is fraudulent because Google misrepresented that it would deliver emails in good faith and failed to, is unfair for the same reason, and is unlawful because it violates other laws as alleged in the Complaint," the judge wrote. The RNC lacks standing to bring the fraud claim because it is not a Gmail user, the judge wrote. The RNC uses Salesforce and a separate email-delivery platform called Everest. The RNC claim that Google misrepresented how it would deliver emails "does not explicitly plead fraud" and "must be premised on some separate predicate unlawful offense," the order said. "Only claims which were sufficiently plead [sic] may serve as a predicate claim. Because the Court has not found any of Plaintiff's other claims to be sufficiently pled, this claim must also fail... Plaintiff will be granted leave to amend this claim to establish a plausible theory of unfairness or unlawfulness."

Political discrimination claim rejected

The RNC was given leave to amend another claim that alleged intentional interference with prospective economic relations under California law. The judge dismissed the claim as follows:

The RNC argues that Google's conduct was independently wrongful because "(1) it is political discrimination against the RNC, (2) it is dishonest to Google's users and the public, and (3) Google repeatedly lied about it." As established above, political discrimination is not prohibited by California anti-discrimination laws and so Google's alleged discrimination would not be unlawful. The latter two reasons do not provide a "determinable legal standard" under which the Court could find the conduct wrongful; they rest on a "nebulous" theory of wrongfulness which other courts have rejected.

The RNC "has failed to establish that Defendant's alleged interference constituted a separate, independently 'wrongful act' that would be an appropriate predicate offense" but "will be granted leave to amend this claim to establish that Defendant's conduct was unlawful by some legal measure," Calabretta wrote. Google said it is pleased about the ruling. "We welcome the Court's finding that there are no plausible allegations that Gmail's spam filters discriminate for political purposes," Google said in a statement provided to Ars. "We will continue investing in spam-filtering technologies that protect people from unwanted emails while still allowing senders to reach the inboxes of users who want their messages." Google previously ran a pilot program that let political emails bypass the Gmail spam filter. Google said in a January 2023 court filing that "the RNC has chosen not to participate in Google's FEC-approved Pilot Program."