Section 230 Protects Gmail’s Spam Filter–RNC v. Google

[My blogging queue has gotten backlogged. I’m slowly catching up. I hope you enjoy these 2,800 words on legal topics you assumed were definitively resolved over a dozen years ago.]

Introduction

This lawsuit is one of the many lawsuits around the country brought by conservatives exorcising their persecution complex. Typically, these lawsuits are purely about partisanship. The lawsuits seek to work the ref, hijack other people’s resources for partisan purposes, and rile the partisan’s base. They are definitely not about the legal or policy merits. So far the judicial system has largely thwarted these partisan attacks on the legal system, but it would take only a few pro-partisan rulings (such as the Missouri v. Biden ruling, or pretty much any recent Internet Law ruling from the 5th Circuit) to radically rescramble our democracy.

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In this installment of grievance litigation, the Republican National Committee claims that Gmail filtered its emails requesting donations, especially during its peak end-of-the-month fundraising appeals, because of partisan bias. The evidence for this was scant. The RNC complained that its end-of-month financial appeals weren’t as successful as it hoped. The RNC also cited the notorious North Carolina State study, which suggested that freshly minted Gmail accounts filtered conservative emails more frequently than liberal ones–despite the study authors repeatedly disclaiming that their study supported the RNC’s interpretation.

Do these data points prove Gmail’s anti-Republican bias? A few other data points contradict that inference. First, the RNC ran an A/B test where it varied the email’s outlinks in its fundraising appeals. One set of emails got through fine; another didn’t. The A/B test suggests Gmail’s filter flagged the RNC’s email coding, not its content or sender identity. Second, the Gmail team worked with the RNC for a year to help the RNC improve their email deliverability, including personally training RNC staff. The RNC thanked the Gmail team for the personal handholding by suing them.

[Also, I wonder if Google provided equal email training to the DNC. If not, Gmail apparently exhibited pro-Republican bias.]

The Opinion

Section 230(c)(2)(A)

The opinion applies Section 230(c)(2)(A), the relatively lightly litigated sibling to Section 230(c)(1). We haven’t had an email filtering case involving 230(c)(2)(A) for years, but as I wrote in 2011, “if an email service provider blocks your email, the courts aren’t going to help you out.” Thus, it’s not surprising when the court says plainly: “Plaintiff’s suit is barred because Google is entitled to immunity from suit under section 230[(c)(2)(A)] of the Communications Decency Act.”

ICS Provider. Gmail qualifies. Cite to Holomaxx v. Microsoft.

Objectionable Content. “a provider such as Google can filter spam, including marketing emails, as ‘objectionable’ material under section 230.” Cite to CAN-SPAM.

Most spam cases involve unsolicited email. In contrast, the RNC emails people who subscribed to their email lists. The court says those subscriptions don’t change the legitimacy of Gmail’s “objectionable” determination:

The fact that the RNC sent emails to individuals who requested them at some point in time does not undermine this conclusion….just because the RNC complies with the CAN-SPAM Act does not preclude that Google may reasonably consider multiple marketing emails to be “objectionable.”…Most individuals who use email are likely familiar with having engaged with an entity one time (such as by purchasing a particular product) only to have that entity send numerous other emails, many or all of which are no longer relevant or wanted. While a user may be generally able to opt out of those emails, an email provider such as Google may reasonably segregate those sorts of mass mailings

RNC sends out a significant number of emails to individuals on its list. While it may be that some, perhaps many, users specifically wanted each and every one of those emails, Google could reasonably consider these mass mailings to be objectionable, just as it can for other email senders.

Good Faith. Section 230(c)(2)(A) requires that the defendant make its filtering decision in “good faith,” something that plaintiffs challenge. In this case, the court says the RNC’s allegations about Gmail’s lack of good faith aren’t sufficient to survive a motion to dismiss–thus preventing this case from getting dragged into expensive and time-consuming discovery. The court explains:

the RNC’s allegation that Google acted in “bad faith” does not rise above the speculative level. At bottom, the RNC’s allegation is that Google diverted emails to spam at the end of the month which had been, coincidentally, a historically successful fundraising time for the RNC, and that the reasons Google gave for the low “inboxing” rate were — in the RNC’s view — not true. Plaintiff argues that the only reasonable inference for why its emails were labelled as spam is Google’s alleged political animus toward the RNC. This is pure speculation, lacking facts from which the Court could infer animus or an absence of good faith.

The North Carolina State study didn’t prove any motive on Google’s part. Plus, Google’s support for the RNC email team did improve the RNC’s email results (just not enough to satisfy RNC). The court summarizes: “the fact that Google engaged with the RNC for nearly a year and made suggestions that improved email performance is inconsistent with a lack of good faith.”

The court summarizes its policy concerns:

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.

Amen. All spam filters exhibit multiple forms of “bias.” Allowing that to be the basis of a lawsuit creates a perpetual litigation machine.

Injunctive Relief. I plotzed when I saw the RNC argued that Section 230 only limits damages, not equitable relief. This argument has been soundly rejected for over 20 years, and I can’t believe any lawyer still thinks it might win. Note the dates of the court’s citations in rejecting this argument:

courts have rejected such a theory as it applies to liability under section 230(c)(1), and have questioned whether the theory would be viable as to section 230(c)(2). See Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000); Smith v. Intercosmos Media Grp., Inc., No. CIV. A. 02-1964, 2002 WL 31844907, at *4–5 (E.D. La. Dec. 17, 2002); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 539–40 (E.D. Va. 2003), aff’d, No. 03-1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004); Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 698 (2001).

The cited precedents are older than some of my Internet Law students LOL. All of the cited cases predate the start of my blog in Feb. 2005. Embarrassing.

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So, Gmail qualifies for Section 230(c)(2)(A). The court nevertheless also rejects the underlying claims on their lack of merit. This is yet another reminder that Section 230 reform would not change the outcome of this case.

Common Carriage. The court says: “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.” It reiterates: “the RNC has not cited any authority to establish that an email provider such as Google is a common carrier, and the Court is unaware of any.”

A business may be a common carrier when it:

(1) “holds itself out to the public generally and indifferently.” Gmail satisfies this standard because anyone can register for a Gmail account. Google argued its T&Cs meant that Google wasn’t indifferent about who used it and for what purpose. The court responds: “Google prohibits certain types of email. This is no different than a mail carrier refusing to carry a dangerous or explosive device.” Is it, though? There’s a pretty big difference between speech and deadly chattel.

(2) provides services for a profit. Google satisfies this element too.

(3) “transport[s] … messages from place to place.” This does not describe an email service provider because it’s an “edge” provider, not an Internet pipe:

RNC does not allege it is a user of Gmail, but rather, alleges that its email service provider is Salesforce, and that it uses a separate email-delivery platform, Everest. As with other similar services, their email provider transforms the email into “packets” that are sent through the internet via computers on the network, and periodically reassembled and repacketized by intermediate computers on the network. Based on the address indicated in the email, the packets that constitute the email are delivered to the recipient’s email server, which are then reconstituted to form the email which is displayed the next time the recipient uses their email program. It is thus not Google that transports the messages, but rather the various computers that comprise the network. Unlike a traditional mail service, email services, like Google’s Gmail, do not “carry” messages; they receive and store messages, and make them available for retrieval by the user after the message has been shuttled through the email protocol….

services which transport information without additional processing are akin to a historical carrier service which shuttles goods and persons from point A to point B, whereas a provider of more extensive services, like Google’s Gmail, does not provide a primarily “carrier” service….

At bottom, Google does not “carry” messages. It rather receives messages from other email platforms that are carried by a decentralized computer network and displays those messages to users in the Gmail platform. It is thus not a common carrier under California Civil Code section 2168.

If you want an offline analogy, it’s why the postal service is a common carrier but the local mailbox vendor offering PO Boxes is not a common carrier. The postal service is the network, the PO Box vendor is a node at the edge of the network.

The court distinguished the abysmal Fifth Circuit NetChoice v. Paxton ruling, saying “in NetChoice II the [Texas] legislature explicitly defined social media platforms as common carriers, whereas the California legislature has not.”

Even if a legislature could overcome these considerations, it would be terrible policy to do so. The court notes the troubling policy implications of the common carriage argument:

[it] would dramatically alter the manner in which email providers conduct their business. As noted by the Plaintiff, many major email providers, including Google, have an interest in limiting spam being delivered to users…Yet, if email providers are common carriers, they would have an obligation to deliver each of the messages that were entrusted to them, as Plaintiffs themselves allege. Email providers such as Google, Yahoo, MSN and others would likely be prohibited from filtering spam or other messages and would instead be required to simply dump all emails into a user’s inbox, first come, first served. While it is true that California courts have not hesitated to interpret statutes in light of new technologies, this Court declines to accept the RNC’s invitation to interpret California’s common carrier law in such a way as to require email providers to deliver spam to the millions of Americans who use their services.

Yes, even judges hate spam.

Unruh Act. The Unruh Act is California’s flagship anti-discrimination law. It’s become a favorite of pro-censorship advocates, regardless of their partisan stripes. The court says the Unruh Act doesn’t apply to discrimination based on “political affiliations.” It also only applies to the business’ treatment of customers, and RNC wasn’t a Gmail customer.

Intentional Tortious Interference. Gmail interposes itself between the RNC and its email subscribers. However, the RNC didn’t establish a predicate wrongful act. For example, the RNC pointed to the political discrimination, which the court already held was permissible.

Negligent Tortious Interference. This legal doctrine is hard to establish without privity. Some of the factors the court considered:

• “Plaintiff alleges that its supporters have requested emails from the RNC, but this is not enough to show that Google and the Gmail users specifically contemplated the RNC’s benefit when entering into their relationship. The fact that the RNC can effectively solicit donations through Gmail is merely incidental to the relationship between Google and Gmail users.”
• The RNC concedes that the primary purpose of the spam filter is to conceal unsolicited and unwanted bulk-emailed messages as a service to its users. Its alleged negligence in not accurately filtering every email is not a moral issue… On the whole, Google’s spam filter, though in this instance imperfect, is not morally blameworthy.”
• “While no spam filter is perfect, it would not be sound policy to disincentivize the use of spam filters by imposing liability for negligent filtering. In addition, the onus of preventing the harm does not rest solely on Google. The RNC is free to solicit funds through different channels, to pay for advertising space within Gmail, or to work towards crafting emails which are not recognized as spam.”

Again, judges hate spam. The court reiterates its policy concerns:

If the Court adopted the theory of liability that Plaintiff requests, it would mean that any email provider could be liable to any of the third-party advertisers or solicitors to whom an email user may donate or purchase from (or possibly only those who make the email providers aware of their solicitation). Either way, such a large and unwieldy group of potential plaintiffs is quite unlike the “fixed, definable and contemplated group[s]” to which a duty of care has been extended. The Court finds no compelling policy justification for such a broad rule of liability.

Implications

This opinion rejected the RNC two different ways (230 and the prima facie case) in a well-constructed and thoughtful opinion. Undeterred, the plaintiffs refiled an amended complaint a couple of weeks ago.

This case reminds me of the 9th Circuit’s Enigma v. Malwarebytes decision. In that opinion, the court sided with the allegedly spyware purveyor, saying that Section 230(c)(2) didn’t apply when the defendant exercised its editorial discretion allegedly based on “anticompetitive animus.” The Ninth Circuit thus gave spyware and other threats vendors additional legal leverage to work the refs. Not only did that opinion reach a doctrinally unsound result, but it literally could make the Internet less safe.

In contrast, this opinion fully embraces the unwanted policy consequences of the RNC’s arguments. The RNC’s arguments are the same as spammers made decades ago, and historically I would have thought that adopting pro-spam positions would offend RNC contributors. I guess #MAGA is on Team Spam now. Fortunately, the judge, like most non-partisans, hates spam enough to recognize the unwanted implications of the RNC’s pro-spam arguments.

(Just a reminder that the Federal Election Commission also rejected the RNC’s complaint about Gmail filtering).

More generally, this case rejects the premise that once a consumer signs up to an email list, the email list operator has legally unrestricted rights to reach the consumer. Email isn’t purely a conversation between email senders and recipients. Those messages transmit over the email service provider’s network, and the email service must take numerous steps to manage its network, both from technical and T&S standpoints.

I would find it more amusing that the RNC got Gmail support and training, only to whine that it still wasn’t enough, except that this is how all marketers respond. Marketers always want an infinite number of customers at zero cost, and they are never satisfied.

While treating email service providers as common carriers has always been stupid, don’t forget that Texas restricted Gmail’s use of email filters in its “Social Media” censorship law. That law requires all email service providers to provide appellate rights to  spammers they filter, a non-scalable and financially ruinous obligation that would in practice force email services to turn off spam filtering entirely. The email filtering portion of Texas’ law has never been challenged in court, and the RNC could simply call in a favor from its pal Ken Paxton and weaponize this provision tomorrow (of course, Paxton’s office still has bigger problems to deal with). The Texas anti-spam filter law demonstrated just how little the Texas legislature actually cared about advancing their constituents’ well-being, but I guarantee that Texans would vote out the incumbents (or worse) if email services turned off their spam filters as the legislature effectively directed them to do. Fortunately, this ruling suggests that the Texas law would be preempted by Section 230(c)(2)(A) and may have other problems. Perhaps Texans’ inboxes are safe from Texas legislators…for now…

Case Citation: Republican National Committee v. Google, Inc., 2023 WL 5487311 (E.D. Cal. Aug. 24, 2023)