After enduring years of targeted censorship, the Republican National Committee is suing Google for its bulk-labeling of millions of RNC campaign email communications to its supporters and donors as “spam” during “pivotal points in election cycles.”
The lawsuit, filed in federal court in California, where Google has its corporate headquarters, is seeking an injunction ordering Google to stop its “en masse,” “egregious filtering,” and asking for “actual, statutory, and exemplary damages” and attorneys’ fees.
Political campaigns and political parties have become increasingly reliant on email services, such as Gmail. While the midterm elections will soon be over, the 2024 presidential election cycle will start shortly thereafter, and the decision in this case could have a serious impact on both the conduct and the outcome of the next presidential election.
The RNC is alleging that Google is discriminating against Republicans by using its Spam Filter Algorithm to reduce the visibility of the RNC’s emails, including labeling as “spam” RNC emails to individuals who have specifically requested to be on the RNC’s email communications list.
Specifically, Google has targeted the fundraising efforts of the RNC, resulting in the loss of an estimated more than $2 billion in donations since 2019, according to the complaint.
But the lawsuit also alleges that Google has been targeting its emails that “communicat[e] political messaging and important Get-Out-The-Vote information.”
Emails are a “crucial conduit” for the RNC to engage “in its core mission of conducting political activity,” something that is undoubtedly true for all political parties and party organizations, not just the RNC.
Earlier this year, North Carolina State University published a study that found emails from Republican candidates for office were marked as spam at a rate 820% higher than the emails of their Democratic opponents, significantly disadvantaging Republican candidates.
As argued by the RNC, this study credibly proves that Google’s Spam Filter Algorithm is deliberately censoring Republicans.
Instead of ending the censorship of Republican candidates, Google has “fallen silent,” according to the complaint, and it has quit responding to RNC efforts to work out a remedy, instead urging the RNC to join its “Verified Sender Program,” which would impose even more stringent rules on RNC emails that wouldn’t resolve the censorship.
And the RNC claims that the discrimination by Google in filtering its emails increased dramatically in February of this year as the 2022 election cycle got underway.
The lawsuit provides an interesting historical context for the alleged violations that emphasizes that while the internet and email communications are modern technological developments, the principle at stake and the issue involved with a private company having “market-dominant” control over important communications is not a new one.
The complaint points out that in the mid-1800s, the equivalent of today’s email communications were telegrams and the newly developed telegraph system. Just like Google today, one company, Western Union, “had a dominant market share across the country.”
The complaint alleges that Google controls 53% of the email traffic in the country.
Citing NetChoice LLC v. Paxton, a case this year out of the 5th U.S. Circuit Court of Appeals, the complaint says that legislators grew concerned over “the possibility that the private entities that controlled this amazing new technology” of almost instant communications through the telegraph system “would use that power to manipulate the flow of information to the public when doing so served their economic or political self-interest.”
Western Union “repeatedly discriminated” against certain telegram senders based on their political views and affiliations, and influenced the “reporting of political elections in an effort to promote the election of candidates” favored by the directors of the company.
Many states enacted laws outlawing such discrimination in telegraph services, including California, which is apparently one of the reasons this lawsuit was filed in that state. The RNC is claiming that Google is a “common carrier” within the definition of that state’s law that requires communication companies to “deliver messages without preference in time, price, or otherwise.”
The complaint further alleges that Google is violating a California civil rights law that guarantees “full and equal” treatment by all business establishments. Exclusionary policies based on “political affiliation” are unlawful discrimination.
The RNC is also asserting violations under California’s unfair business practices statute, as well as tort claims for both negligent and intentional “interference with prospective economic relations.”
In addition to these state law claims, the RNC is alleging that Google’s discriminatory actions violate the federal Telecommunications Act, 47 U.S.C. § 202. The RNC acknowledges that the Federal Communications Commission does not currently classify Google as a “common carrier” within the definition of that law and that several court decisions have upheld the FCC’s decision as reasonable. But the RNC says it is preserving “the issue for further review or intervening Supreme Court authority.”
This is an important case, because it raises a crucial issue that the courts, Congress, and state legislatures ought to address. When private companies dominate or virtually monopolize communications used by the public—the same way Western Union did throughout the 19th century—are they prohibited from engaging in discrimination and in selective censorship and filtering in accordance with the political views, opinions, and interests of the directors of those companies? Or should they be treated like other private entities over whom the government has no regulatory authority?
Google has abused its email and internet-browsing dominance to control speech online. Regardless of the outcome of this case, the tech giant ought to be far more transparent with the American people over how it moderates and censors content. The country would never accept a telecommunications firm blocking phone calls, or the Postal Service redirecting political mail. The law should provide the same respect and protection for private email communications.
The resolution of this case will help determine the future of digital communications. But we shouldn’t have to rely on the courts to deliver Big Tech accountability. Lawmakers should prioritize legislation that requires greater transparency and prevents Big Tech from monopolizing—and controlling—this critical infrastructure.
This piece originally appeared in The Daily Signal