from the our-spam-filters-are-safe-for-now dept
Election season is approaching, so I fully expect this nonsense to come right back again, but maybe with a court shutting it down, culture war nonsense peddlers can move on to some other nonsense?
The background: in the runup to the 2022 U.S. elections, a prominent Republican “digital marketing” (read: political spam) shop noticed that its marketing campaigns weren’t doing very well. Rather than realizing that (1) the candidates and messages they were pitching were not what people wanted and (2) they were way too aggressive in spamming nonsense to people, the political consultants who ran the place decided to… blame Google.
This was because they badly misread a study that noted that if you don’t train your spam filter at all, Gmail will put more GOP campaign emails into spam than from Democratic campaigns. The same study found that as soon as users started training the spam filter the effect went away. Also, the same study found that other popular email providers, Yahoo and Microsoft’s Outlook, found the opposite was true (their spam filters caught more Dem emails than GOP). Google, for its part, said the problem was not bias, but that Republicans are shit at understanding modern non-spam email habits. In one meeting, in which Senator Marco Rubio apparently screamed at Google, company representatives had to point out that his own campaign was doing a bunch of stupid email things.
But, the modern GOP has mastered the art of playing the victim, and immediately flopped to the ground screaming “foul!” Most normal people recognized that this was just a bunch of Republican politicians trying to force their spam into inboxes. Even some prominent Republican-supporting pundits called out the political spammers on their own team, highlighting that the reality is they just spam too fucking much.
All this whining still convinced Google to offer up a special “political spam” whitelist option for Gmail, which the public massively opposed (no one wants more spam!) Of course, once Google offered it up, the Republicans… refused to use it.
But it wasn’t just the usual flop and whining. The GOP went legal. They filed an FEC complaint, arguing that this was an illegal in-kind contribution from Google. That went nowhere. Then, the Republican National Committee filed a lawsuit against Google, claiming that Google’s spam filtering (which again, the public loves overwhelmingly) violated… civil rights law in California. And also some common carrier nonsense, as well as negligence. Because it’s negligent to filter spam? Really?
It was a dumb lawsuit. We called it out as a dumb lawsuit at the time.
And now a federal judge has agreed, and tossed the lawsuit out of court.
First up, Section 230 bars all of this:
At the outset, Plaintiff’s suit is barred because Google is entitled to immunity from suit under section 230 of the Communications Decency Act, 47 U.S.C. § 230. Section 230 affords interactive computer service providers immunity from liability for decisions related to blocking and screening of offensive material, or for providing others with the technical means to do so. 47 U.S.C. § 230(c)(2). “To assert an affirmative defense under section 230(c)(2)(A), a moving party must qualify as an ‘interactive computer service,’ that voluntarily blocked or filtered material it considers ‘to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ and did so in ‘good faith.’” Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal. 2011) (quoting 47 U.S.C. § 230(c)(2)(A)). Section 230 must be construed to protect defendants “not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc); see also Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019). In “close cases” section 230 claims “must be resolved in favor of immunity.” Roommates.com, 521 F.3d at 1174.
Google, and specifically Google’s Gmail, is an interactive computer service. An interactive computer service is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . .” 42 U.S.C. § 230(f)(2); see Holomaxx, 783 F. Supp. 2d at 1104 (finding that Microsoft’s email service was an interactive computer service). Plaintiff does not dispute this classification. (Opp’n. at 28.)
Turning to the second requirement for a section 230 defense, Google’s filtering of spam constitutes filtering “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” 47 U.S.C. § 230(c)(2)(A). In Enigma Software Group USA, LLC v. Malwarebytes, Inc, the Ninth Circuit took up the issue of what kind of material would fall within the catchall of “otherwise objectionable.” 946 F.3d 1040, 1044 (9th Cir. 2019). The court rejected an interpretation of section 230 in its prior decision in Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1174 (9th Cir. 2009) that gave unfettered discretion to a provider to determine what is “objectionable.” Enigma Software Group, 946 F.3d at 1050. Specifically, the Ninth Circuit concluded that blocking and filtering decisions that are driven by anticompetitive animus do not concern “objectional material,” particularly in light of Congress’s codified intent that section 230 “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services . . . .” Id. at 1050–51 (quoting 47 U.S.C. § 230(b)(2)–(3)).
At the same time, the Ninth Circuit rejected a narrow view of what constituted “objectional” material, noting the “breadth” of that term. Id. at 1051. The court called into question cases interpreting “objectionable” in light of the other terms in section 230 on the principle of ejusdem generis (Latin for “of the same kind or class”), noting that the specific terms in section 230 “vary greatly.” Id. And while it did not expressly adopt their reasoning, the Ninth Circuit appeared to approve decisions holding that “unsolicited marketing emails” are “objectionable” for purposes of section 230. Id. at 1052 (citing Holomaxx, 783 F. Supp. 2d at 1104; e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 608–610 (N.D. Ill. 2008)).
This Court likewise holds that a provider such as Google can filter spam, including marketing emails, as “objectionable” material under section 230.
The GOP tried to get around 230 by arguing “but people asked for our spam!” That doesn’t fly:
The fact that the RNC sent emails to individuals who requested them at some point in time does not undermine this conclusion. In its Complaint, the RNC alleges that it maintains a “list of people who have requested to receive emails from the RNC” and that its campaign emails “are only sent to people on this list.” (Compl. ¶ 22.) The RNC further alleges that it removes individuals from this list who no longer wish to subscribe to the RNC’s emails, and that the emails it sends are “solicited.” (Id.) As a result, the RNC concludes that the emails “are plainly not spam because they are only sent to Gmail users who requested them” and that therefore they are not “offensive.” (Opp’n. at 34.) However, just because the RNC complies with the CAN-SPAM Act does not preclude that Google may reasonably consider multiple marketing emails to be “objectionable.” First, “compliance with CAN–SPAM, Congress decreed, does not evict the right of the provider to make its own good faith judgment to block mailings.” e360Insight, 546 F. Supp. 2d at 609 (citing 15 U.S.C. § 7707(c)). Second, just because a user interacts with a company at one point in time does not mean that the user “solicits” each and every email sent by the entity. 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 (even though they were originally requested by the user in the legal sense, see 15 U.S.C. § 7704) in order to ensure that “wanted electronic mail messages” will not be “lost, overlooked, or discarded amidst the larger volume of unwanted messages,” 15 U.S.C. § 7701(a)(4).
Then there’s this little dig from the judge about the GOP’s propensity to spam:
It is clear from the Complaint that the RNC sends out a significant number of emails to individuals on its list. (See Compl. ¶ 21 (noting the RNC emails supporters about events, such as the 349 that occurred within the Eastern District from February to October 2022); ¶ 39 (noting “multiple emails sent over the weekend”); ¶ 42 (noting that RNC’s press releases were “just 0.3% of the email volume as the RNC’s main marketing domain”).) 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.
The RNC also tried to get around 230 by arguing that Google’s spam filtering was not done in “good faith.” Of course, good faith is only required for 230(c)(2) and it seems like Google could have been fine on (c)(1) grounds as well, but even here, the judge says that there’s no evidence of bad faith, other than the one study that the GOP misread.
In this case, 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. (Compl. ¶ 3.) This is pure speculation, lacking facts from which the Court could infer animus or an absence of good faith. The only affirmative allegation that includes any facts from which the Court could draw a conclusion of the absence of good faith is Paragraph 54 of the Complaint, which cites a North Carolina State University study that is alleged to have “found that Google’s Gmail labels significantly more campaign emails from Republican political candidates as spam than campaign emails from Democratic political candidates. Specifically, the study found that Gmail labeled only 8.2% of Democratic emails as spam, as compared with 67.6% of Republican campaign emails.”
While this study does provide some evidence that Google could be acting without good faith, the Court finds that this study is insufficient, standing alone, to meet the pleading requirements as described in Twombly and Iqbal. First, the study itself does not attribute any motive to Google, with the study authors noting “we have no reason to believe there were deliberate attempts from these email services to create these biases to influence the voters. . . .” (ECF No. 30-10 at 9.) Second, the study indicates that all three email programs considered — Google, Outlook, and Yahoo — had a political bias, although Google’s left-leaning bias was greater than Outlook or Yahoo’s right-leaning biases. (Id.) Third, the study indicates that Google’s spam filter “responded significantly more rapidly to user interactions compared to Outlook and Yahoo” (id.), suggesting that a more plausible reason for the left-leaning bias was user input, not bad faith efforts on the part of Google.
Also, the fact that Google kept sending employees to help train the GOP on how to have better email practices seemed to undermine the “bad faith” claims:
In the Complaint, the RNC recounts that adopting Google’s suggestions had a “significantly positive impact on [email] performance,” though they did not resolve the end-of-month issue. (Id. ¶ 48.) While the RNC may disagree with Google regarding what caused the drop in inboxing, 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….
Finally, the A/B test cited in Paragraph 33 of the Complaint undermines the RNC’s claim of bad faith discrimination on the basis of political affiliation. If Google were discriminating against RNC emails due to their political affiliation, then neither set of emails should have gotten through Google’s spam filter. The fact that one version did indicates it was not the substantive content or sender of the email, but rather some other factor, such as the different links contained with the email or some other technical feature of the email, that was triggering application of the spam filter. At oral argument, counsel for the Plaintiff conceded that the A/B test does not support a finding that emails are being filtered because the RNC is sending them or because the emails contain political content.
The end result then, is that the judge recognizes that a bunch of Republican whiners misread a study, overreacted, and sued.
In short, the only fact alleged by the RNC to support its conclusory allegation that “Google’s interception and diversion of the RNC’s emails, and the harm it is causing to the RNC, is intentional, deliberate, and in bad faith,” (Compl. ¶ 56), is the North Carolina State University study that expressly states there is no reason to believe Google was acting in bad faith, and the remainder of the allegations in the Complaint are inconsistent with such a conclusion. In light of the multiple reasonable explanations for why the RNC’s emails were filtered as set forth in the Complaint, the Court does not find the RNC’s allegation that Google was knowingly and purposefully harming the RNC because of political animus to be a “reasonable inference.” Accordingly, the Court concludes that the RNC has not sufficiently pled that Google acted without good faith, and the protection of section 230 applies.
The court then rightly notes that this is exactly how Section 230 is supposed to work, given that the law is supposed to encourage interactive computer services to voluntarily monitor content on their platforms, and that’s exactly what’s happening here with spam filters.
It’s also nice to see the judge call out (as I kept doing in my posts) how that same study found that Microsoft and Yahoo favored Republican emails and disfavored Democrats, and no one was bitching about that:
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. (ECF No. 30-10 at 9 (“all [spam filtering algorithms] exhibited political biases in the months leading up to the 2020 US elections”).) 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. Moreover, the study authors note that reducing the filters’ political biases “is not an easy problem to solve. Attempts to reduce the biases of [spam filtering algorithms] may inadvertently affect their efficacy.” (Id.) This is precisely the impact Congress desired to avoid in enacting the Communications Decency Act, and reinforces the conclusion that section 230 bars this suit.
The court also brushes aside a ridiculous interpretation of 230 that the GOP tried here, in which they claimed that 230 only gives a website immunity from financial liability, but that a court can still issue injunctive relief (basically telling the company to stop filtering political spam). That’s not how any of this works, the judge notes:
As an initial matter, the word “liable” has a broader definition than Plaintiff suggests and can include being held to account even through injunctive relief. For example, Black’s Law Dictionary (11th ed. 2019) defines liable as “responsible or answerable in law; legally obligated,” which would include a legal obligation to comply with an injunctive order just as it would a monetary judgement. Moreover, 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)
The case could just end there. The claims are barred by 230, end of story. But, instead, the court decides to run through the actual claims anyway and explain why they still fail, even without Section 230.
Even if Google were not entitled to section 230 immunity, each of Plaintiff’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.
Again, we’ve pointed this out repeatedly: even in the absence of Section 230, most claims that lose on 230 grounds would still lose, just that it would take longer and be more expensive.
The common carrier claim? Nope. Not at all.
Further supporting this conclusion, the Court notes that 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. Perhaps most significantly, a contrary conclusion 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. (See Compl. ¶ 27 (“As a service to its users, and to increase its own profits, Google intercepts certain messages intended for its users that comprise unsolicited and unwanted bulk-emailed messages and place them in a separate folder, called a spam folder.”);…
And points out claiming that email is a common carrier would mean a ton of spam:
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.
Even sillier, the court points out that even if it did find that Google were a common carrier, the RNC isn’t a customer of Google. They send out emails via other service providers, so there’s no customer relationship here.
Finally, even if Google were a common carrier, the RNC did not avail itself of Google’s services, and Google owes no duty to it. See Grotheer v. Escape Adventures, Inc., 14 Cal. App. 5th 1283, 1294 (2017) (“[A] common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers.”
Here, the RNC has not paid Google any sum to transmit messages, and therefore would not be entitled to damages for ordinary negligence.
Civil rights law under California’s Unruh Act (a favorite of spurned Trumpists claiming that moderating them violates their rights, which never works)? Nope. Not even close. Contrary to their claims, being a cult-like believer in Donald Trump does not make you a protected, discriminated class.
The Court declines the invitation to usurp a legislative function by adding a new protected class to the Unruh Act. This is in keeping with the California courts’ modern approach of giving deference to the Legislature. It is also consistent with the few cases to address this issue, all of which have reached the same conclusion that “the Unruh Civil Rights Act does not protect against discrimination based upon political affiliation or the exercise of constitutional rights.”
There were a few more throw-in claims, and they fail all the same.
Of course, with election season coming up again, it may spur the RNC on to appeal this ruling, if only so it gets to keep whining through 2024 how oppressed they are by big bad tech companies…