Republicans Sue Google To Try To Force Spam Into Your Inbox

Email

from the spam-spam-spam-spam dept

Okay, let’s get this out of the way first: Republican politicians send a shit-ton of spam. And, no, it’s not just standard political messaging. It’s spam. And it’s often full of absolute scams. Erick Erickson, an extremely rightwing/GOP-supporting commentator, recently wrote a whole post calling out his team for spamming everyone and then blaming others for the problems their spam created.

The consultant class of the GOP is pushing the mythology that Google and Apple are flagging their emails because tech companies hate Republicans. I’ve spent a week on the phone with many Republican consultants, including those tied to campaigns whose emails make it to my inbox. They all tell me the same thing — the problem is not Google or Apple, but the GOP consultant class.

He notes that he never signed up for any of these political campaign lists, but he gets all the mail. As he notes:

These are not examples of Google abusing Republican emails. This is an example of Republican consultants abusing emails they have access to and Google and Apple protecting their users from spam.

Unfortunately, the Republican consultants have the ears of their leaders and their solution is to pressure Google and Apple to let all the spam go through. They are selling Republican elected officials on the idea that Google is nefariously blocking their emails.

The reality is the consultants will not fess up to their abuses. They will not own up to their poor stewardship of email lists. They’ll claim the Democrats are more effective because of tech company biases and not because the Democrats are actually better stewards of an email file.

He even thanks Google and Apple from “sparing” him from all this spam, from the very candidates that he generally supports.

And that’s not even getting into the many other problems Republicans have had with email of late. Studies have shown that the GOP specializes in sending misleading campaign emails using “spam-like senders.“

One email sent by the re-election campaign of Senator Marsha Blackburn (R-TN) lists its sender as “Reservation Confirmation,” with the subject line “FLIGHT NUMBER: 8341.” The message itself states the former president has “invited you to join him for a private dinner at Mar-a-Lago!”

A click to the “Confirm your interest here” button redirects the recipient to a fundraiser offering a chance to win the dinner with Trump. Donations will benefit Blackburn’s campaign, in addition to that of Congresswoman Elise Stefanik (R-NY).

Some emails from the team of Representative Steve Scalise (R-LA) cryptically appear as coming from a sender simply named “Steve,” with the subject line “hey.” Scalise’s fundraising emails have also put down “URGENT RESPONSE REQUIRED” as senders. Scalise is the House Minority Whip Representative.

In an email paid for by the Republican State Leadership Committee, which works to help Republicans gain control of state legislatures, the sender is “Me, Trump State Allies (2)”—appearing to imply a back-and-forth conversation—and the subject line is “re: @realDonaldTrump mentioned YOUR name!”

These emails are separating gullible rubes from their money, including the $250 million that Trump raised, in part with these scammy emails, claiming that it would be used to contest the 2020 election that he lost, when it basically went to Trump and his friends instead. Or how about how many Republican donors demanded their money back, after scammy spammy emails for Trump’s campaign tricked them into making recurring donations.

Mr. Trump’s political operation began opting online donors into automatic recurring contributions by prechecking a box on its digital donation forms to take a withdrawal every week. Donors would have to notice the box and uncheck it to opt out of the donation. A second prechecked box took out another donation, known as a “money bomb.”

The Trump team then obscured that fact by burying the fine print beneath multiple lines of bold and capitalized text, a New York Times investigation earlier this year found.

Then there’s the story of the Republican candidate for Congress who tricked donors with emails that pretended to be from Trump or Ron DeSantis asking for donations, when the donations were actually for himself:

In his pursuit of Florida’s 4th Congressional District, Aguilar has used WinRed, a popular platform Republicans employ to process campaign contributions, to send a flurry of fundraising emails. But the solicitations did not mention Aguilar’s campaign or his leading competitor in the Aug. 23 primary, state Sen. Aaron Bean, who has the support of much of the state’s GOP establishment.

Instead, the messages were written in a way that suggested donations would actually go toward more prominent GOP politicians, including the former president, the governor or Ohio Rep. Jim Jordan.

“Governor DeSantis is always fighting back against Corrupt Left,” read one email that came under a logo using DeSantis’ name. “No matter how bad this country is the Fake News media and Biden Admin are OBSESSED with that [sic] Florida is doing.”

It added: “It is time to help America’s #1 Governor. Can we count on you to support DeSantis?”

They’re spammers.

But, if there’s one other thing we know about Republicans, beyond their desire to spam inboxes, we also know they can’t take responsibility for when they fuck stuff up. The party that pretended to be the party of “personal responsibility” has shown over the years that it’s the exact opposite. Everything coming out of Republicans these days is blaming everyone else for the stuff they themselves fucked up.

It’s pathetic.

And, as we’ve been covering, they’ve been doing it for the past six months or so with this email nonsense, and now they’ve taken it to a new, and even more ridiculous level: the Republican National Committee is suing Google because of its spam filter. I mean, what a bunch of whiny little children who can’t admit that they fucked up.

As we’ve discussed, Republican political consultants flipped out about this spam stuff, and never once considered that maybe they were the ones screwing up. They filed an FEC complaint against Google, claiming their spam filter was an unfair in-kind contribution. They introduced a law to try to require all email providers whitelist political spam.

And despite how disingenuous they’ve been throughout this whole thing, Google caved. Google agreed to a pilot program where they would whitelist politicians’ emails from going to spam (though it would ask recipients if they wanted to keep receiving such emails). This pilot program needed approval from the FEC, and it was universally hated by everyone who commented (across the political aisle) because people are sick of political spam.

Yet… last week, we noted that no Republicans have even signed up for the program. As we noted at the time, it seems easier for them to just want to perpetually play the victim rather than make use of the solutions presented to them.

So, on to the lawsuit. They hired the Dhillon Law Group, whose name has been showing up in pretty much every frivolous, pathetic, whiney, “oh, I’m a conservative and I’m a victim” lawsuit we’ve seen over the past couple of years. We were just talking about how they flopped and had the SLAPP suit that they filed on behalf of John Stossel against Facebook tossed out of court. But, now they’re suing Google for… protecting its users with spam filters.

The lawsuit is a complete and utter joke.

It claims that most of their emails get through, except the ones at the very end of the month which go to spam. They insist that this is proof that Google is deliberately targeting them, which… makes no sense at all. It seems more likely that they ramp up their mailings at the end of each month, which trips the algorithm to designate more of their emails as spam. Basically, play shitty spam games, win shitty spam filter prizes.

The argument in the lawsuit is another one favored by idiots insisting that “big tech” discriminates against conservatives: that it’s a violation of California’s anti-discrimination laws, such as the Unruh Act. This has been tried before and failed miserably under Section 230, and that’s likely to happen with this lawsuit as well. It then tries to argue that Google’s email is a “common carrier” and that the spam filter somehow violates common carrier law. This is just utter nonsense.

Email, of course, is an open protocol. There are numerous different providers, and different ways you can set it up. If you don’t like how Google handles its spam filtering, you can pretty easily move to a different provider (or you can… go through your spam folder and tell it what you want to train the filter). If we somehow declared every individual email service provider a common carrier that would be the end of email, because it would make spam filtering effectively illegal. It’s complete nonsense.

The entire point of this complaint is to say that spammers effectively have a fundamental right to flood your inbox. Even if you could make a credible argument that email was a common carrier (and again, you cannot), then the party who should complain is the holder of the inbox who feels that emails they want are being unfairly blocked and not the asshole spammers trying to scam you out your money.

While the complaint heavily cites Judge Andy Oldham’s nonsense ruling in the 5th Circuit, someone should remind the RNC that they filed this case in California, which is… not in the 5th Circuit.

Unfortunately, this is not the first time a communications company has discriminated against people based on their political views and affiliation, but fortunately this means there are laws ready to combat this harm. In the 1800s, a pivotal form of communication was the telegraph and Western Union had a dominate market share across the country. By the late 1800s, “legislators grew ‘concern[ed] about the possibility that the private entities that controlled this amazing new technology would use that power to manipulate the flow of information to the public when doing so served their economic or political self-interest.’” NetChoice, LLC v. Paxton, 49 F.4th 439, 470 (5th Cir. 2022) (opinion of Oldham, J.) (quoting Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2321 (2021)).

“These fears proved well-founded.” NetChoice, 49 F.4th at 470. Even though Western Union offered to serve any member of the public, it repeatedly discriminated against messages based on the message’s political views or on the person’s political affiliation. It, for example, “discriminated against certain political speech, like strike-related telegraphs.” Id.; see also Lakier, supra, at 2322. It was also “widely believed that Western Union … ‘influenc[ed] the reporting of political elections in an effort to promote the election of candidates their directors favored.’” NetChoice, 49 F.4th at 470 (quoting Lakier, supra, at 2322); see also The Blaine Men Bluffing, N.Y. Times, Nov. 6, 1884, at 5. And it was not the only time Western Union was accused of discriminating based on political views or affiliation: “Similar accusations were made about Western Union’s role in the presidential contest[] eight years earlier.” Lakier, supra, at 2322 n.114 (citing David Hochfelder, The Telegraph in America, 1832-1920, at 176 (2013)).

In response to these discriminatory practices, states across the country enacted nondiscrimination laws that prohibited businesses from “manipulating the flow of information to the public.” Lakier, supra, at 2322; see also NetChoice, 49 F.4th at 471. One such state was California. It passed laws requiring “common carriers” to timely transmit messages in a nondiscriminatory manner

For what it’s worth, while this lawsuit heavily quotes professor Genevieve Lakier, Lakier herself has gone on record claiming that Oldham misinterpreted her work on the common carrier issue and that it “conveniently ignores” the precedents that disagree with Oldham’s conclusion, of which there are many rejecting the idea of expanding common carrier law to other realms.

The lawsuit goes on, basically demanding that Google not be allowed to filter RNC emails into spam. I’m not joking:

The court should thus make clear that California’s nondiscrimination provisions apply to Google’s Gmail. Whether Google is categorized as a common carrier, public accommodation, or a business providing a service, California law prohibits Google’s spam filtration of RNC emails based on political affiliation and views. To conclude otherwise would mean that “email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.”

But here’s the thing: they’re not filtering the spam based on “political affiliation and views.” They’re filtering it because it’s spam. Maybe try not to be such spammers? Or, at the very least, sign up for the stupid pilot whitelist program Google rolled out just for you?

Generally, if you can take action to avoid the supposed “harm” you’re suing over, and you don’t take those actions, then your lawsuit is not going to go very far.

Hilariously, the RNC complaint insists that “the most reasonable inference” is that Google is deliberately trying to stifle Republicans, which is ridiculous. They’re just trying to stop spam. But, here’s where the lawsuit goes even dumber: it says that even if this isn’t based on viewpoint discrimination, Google should still lose… for negligence. That’s… not how any of this works.

It is no answer to say, as Google surely will, that its spam filtering is not intentional. The most reasonable inference is that it is intentional. Regardless, Google’s conduct is at the very least negligent and unreasonable. And California law forbids that too. Common carrier law doesn’t require intentional discrimination. Neither do common law claims like negligent interference with prospective relations. Neither does California’s unfair practices law. In the end, Google has violated the law, cost the RNC numerous donations and substantial revenue, and irreparably injured the RNC’s relationship with its community.

One of the specific claims in the lawsuit is that this is a violation of California’s common carrier law, which is hilarious. Your email inbox is not a common carrier. Then there’s the Unruh claim of discrimination, an unfair competition claim (Google competes with the RNC?), and then (of course) an intentional interference with prospective economic relations. In other words, they’re effectively saying any spammer should be able to sue Google for blocking the spam because it’s stopping gullible suckers from paying up.

It’s nonsense.

There are a few other claims, including a “negligence” claim which is pretty funny. It’s negligent to place your spam in the spam folder? The details of the claim are laughable:

Google thus has a duty to receive emails sent by the RNC, and to transmit them to Gmail users’ inboxes upon reasonable terms.

Google also has a duty to transmit and deliver messages sent by the RNC to Gmail users with great care and diligence.

Google did not transmit the RNC’s emails to its users’ inboxes on reasonable terms, or exercise care and diligence in the transmission and delivery of the RNC’s emails to Gmail users because it has in bad faith, and for no accurate or reasonable reason it can explain, intercepted and diverted the RNC’s emails to Gmail users’ spam folders. Google’s political bias or hostility to the RNC is not a reasonable basis for refusing to transmit the emails to its users’ inbox and, in the alternative, its arbitrary or incompetent failure to deliver the RNC’s emails to Gmail users’ inboxes does not constitute great care and diligence.

Honestly, I still don’t understand why Democrats haven’t been parading all this nonsense in ads and speeches all over the place, calling out that Republicans are demanding that they get to infiltrate your email box and stop your spam filters from working.

Everyone hates spam.

If the Democrats were doing this, Fox News would be having a field day about this kind of ridiculousness.

Republicans used to claim they were the party of personal responsibility. Now they’re the party of “we fucked around, we found out, but now we’re going to blame you for it.” It’s just utterly pathetic.

Filed Under: california, common carrier, discrimination, emails, political emails, spam, unruh act
Companies: google, rnc