Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
Prior blog post. If I say so myself, it was a really good post–you should read it first and then read this post. In my prior post, I wrote: “I hope you enjoy these 2,800 words on legal topics you assumed were definitively resolved over a dozen years ago.” Here we go again…I hope you enjoy another 1,700 words on the topic.
You may recall that the RNC claimed that Gmail’s spam filter was biased against Republican spam. The centerpiece of this claim was an academic study that the RNC intentionally misinterpreted, to the point where the authors criticized their willful misreading. Having had their case dismissed before, the RNC came back with new allegations:
the RNC alleges that once it filed this lawsuit in October 2022, the email diversions ceased, despite the RNC sending even more emails leading up to and during the November 2022 election. Moreover, the RNC emphasizes that it targeted its emails to users that had engaged with RNC emails more recently and more frequently, and that Google’s own data showed that the RNC’s spam rate was within the limits suggested by Google.
They still lose. The court summarizes its conclusion:
While the RNC may be correct that Google’s alleged conduct (if proven) is “unfair” in a colloquial sense, the RNC is unable to point to any legislative policy that is implicated by the alleged conduct. Nor can it point to a sufficient harm to users of Gmail — which is the focus of the UCL — that would suggest Google’s practices are unfair. And the RNC has not shown Google’s alleged conduct has violated any other law
That’s the right outcome, but the court’s rough treatment of Section 230 this time makes me sad.
Section 230(c)(2)(A)
Defendants reluctantly rely on the Section 230(c)(2)(A) defense because of its “good faith” prerequisite. Though it succeeded last time, Section 230(c)(2)(A) now fails because Google’s allegedly changed filtering practices post-lawsuit could be evidence of Google’s intentional diversion:
while there may be technical reasons to account for the abrupt end to the months-long inboxing pattern, the timing and the lack of a clear reason for the monthly diversions makes the RNC’s allegation that Google acted without good faith in diverting the RNC’s emails to spam sufficiently plausible at this early stage of the proceedings.
In other words, it just take an unproven hypothesis to overcome Section 230(c)(2)(A)’s “good faith” standard on a motion to dismiss. Not a very helpful safe harbor.
Section 230(c)(1)
The court says: “there is no allegation that Google published or failed to remove some potentially harmful content that caused an injury leading to the RNC’s claims; rather, the challenge is to Google’s decision to restrict the availability of, or to not publish, the RNC’s emails.” The court then couples this with the repeatedly rejected argument that if Section 230(c)(1) applies to removals, Section 230(c)(2)(A) becomes superfluous (“it is subsections (c)(2)(A) and (B) that explicitly provide protection for the act of filtering, or not publishing, content provided by third parties”).
I don’t even know what to say. The court is disregarding the dozens of cases where Section 230 has applied to removal of the plaintiff’s content, so the court’s standard is emphatically wrong. The whole (c)(1)/(c)(2)(A) superfluous issue has been discussed countless times. The last time I discussed this issue, I wrote:
Section 230(c)(2)(A) fills any gaps left open by 230(c)(1). In particular, it covers suits where an ICS provider is ALSO acting as an ICP, and thus ineligible for 230(c)(1). In that circumstance, the ICS provider can still claim the statutory immunity for its filtering or removal decisions if those are exercised in good faith. Otherwise, the filtering and removal decisions are covered by 230(c)(1) and can be done however the service wants.
The court doesn’t engage with any of the discussion about this issue over many years. Sigh.
The court says Section 230(c)(2)(B) also doesn’t apply here:
If Google can show that the decisions to filter were in fact based on a user’s individualized feedback such that Google was effectively just providing the user with the means to filter the RNC’s emails, Google may then be entitled to immunity under subsection (c)(2)(B). But, taking the RNC’s allegations as true, it was Google making the filtering decisions, at least in part, not Google merely providing the technical means for filtering to its users.
The court summarizes its rejection of Section 230:
section 230 subsections (c)(1) and (c)(2)(B) do not apply in this case. And section 230(c)(2)(A) — which could potentially apply — does not bar this suit given the RNC’s allegations that Google was not operating in good faith
This is a terrible ruling for email service providers and their efforts to keep spam out of their users’ inboxes. It suggests that Section 230 does nothing for email service providers because spammers can always concoct some story suggesting bad faith filtering. Without a statutory fast lane like Section 230, spammers can tie up email service providers in lengthy and costly court proceedings based on wispy and self-serving allegations. Compare the analogous decade-long battle in Enigma v. Malwarebytes. Indeed, this same judge, in the prior ruling in this case, issued these warnings:
Permitting suits to go forward against a service provider based on the over-filtering of mass marketing emails would discourage providers from offering spam filters or significantly decrease the number of emails segregated. It would also place courts in the business of micromanaging content providers’ filtering systems in contravention of Congress’s directive that it be the provider or user that determines what is objectionable (subject to a provider acting in bad faith). This concern is exemplified by the fact that the study on which the RNC relies to show bad faith states that each of the three email systems had some sort of right- or left- leaning bias. While Google’s bias was greater than that of Yahoo or Outlook, the RNC offers no limiting principle as to how much “bias” is permissible, if any.
All good points. Too bad the court drifted away from them.
The shredding of Section 230 comes as a consequence of an RNC effort to vindicate spammers’ rights. This isn’t the first concerted Republican effort to do so; recall for example the Texas social media censorship law tried to ban email spam filters. I guess the Republicans deserve some credit for making demonstrable progress in advancing their vision for America and giving voice to an important constituency. 🙄
UCL (17200)
Despite tearing down Section 230, the RNC still loses on the prima facie elements. This is yet another example of where Section 230 reform wouldn’t change the outcome (and Section 230 isn’t inhibiting the common law’s development).
To establish a 17200 claim based on unfairness, the RNC has to find some legal principles supporting it. It can’t do so. It pointed to the Unruh Act, but the court previously held that the Unruh Act doesn’t apply to discrimination based on political affiliation.
The court then turns to the dicey subject of whether email should be treated under common carrier laws. The court again says no:
Reading email into the common carrier law would implicate significant policy and Constitutional considerations that the California Legislature has not addressed. As the Court previously discussed, “if email providers are common carriers, they would have an obligation to deliver each of the messages that were entrusted to them” including unwanted and spam emails that could be harmful and disruptive to email users and providers. And such a regulation would impose on email providers’ First Amendment rights. [cite to Moody]
The discussion of Moody is interesting because the court skipped over the part where the Moody majority (plus Justice Barrett’s concurrence) suggested that “transmitting direct messages” might be treated differently from “curating a feed.” I personally think this passage was based on underinformed stereotypes (and Joan Biskupic of CNN provides more explanation for this specific passage), but the RNC will surely question the court’s sidestepping of this part of Moody on appeal.
(Note: in Moody, Justice Barrett’s concurrence explicitly said that partisan content filtering was protected by the First Amendment. If email services are protected by the First Amendment, then the RNC’s case should be over on First Amendment grounds).
The court next turns to the UCL’s protection of consumers (“Because the RNC is not a Gmail user or Google competitor, the harms it has allegedly suffered are not properly considered under the UCL”). The court isn’t concerned about Gmail users not getting RNC spam:
Having a small number of wanted emails diverted to spam on occasion is not “substantially injurious” to Gmail users. Google is not alleged to have diverted the emails to force users to pay large sums of money to get their emails back; the users could access those emails at any time. Nor did Google realize any monetary benefit from diverting the RNC’s emails. While the practice did allegedly cause substantial monetary injury to the RNC, the Gmail users were not harmed in a similar way
(Indeed, arguably the Gmail users saved money from not pouring more money into the Trump legal defense fund).
The court summarizes:
The allegations of political discrimination, if true, are certainly concerning and may have wide and severe implications for the future of political discourse. It may even be that Google’s conduct is “unfair” in a colloquial, as opposed to a legal, sense. But it is not the role of this Court to decide these significant policy issues that must be addressed by a legislative body in the first instance
To be clear: The Texas legislature did in fact address this issue. Maybe the RNC will take up the matter there.
The court rejects the IIED claim because it’s never IIED.
* * *
The court dismissed the RNC claims with prejudice, teeing up the case for the Ninth Circuit. The opinion has several sharp edges for the Ninth Circuit to mull over, including Section 230 and the First Amendment. I can’t wait. 😑
I imagine this case will get appealed to the Supreme Court, regardless of what happens at the Ninth Circuit. As I said in my Moody paper,
Justice Kagan once joked that the justices “are not, like, the nine greatest experts on the internet,” but they will necessarily become more Internet-savvy to review the censorial Internet laws flooding their docket.
Case Citation: Republican National Committee v. Google LLC, 2024 WL 3595538 (E.D. Cal. July 31, 2024)