The Volokh Conspiracy
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From Republican National Comm. v. Google, Inc., decided yesterday by Judge Daniel Calabretta (E.D. Cal.):
[RNC] brings this suit alleging that [Google] has been intentionally misdirecting the RNC's emails to Gmail users' spam folders at the end of each month "to secretly suppress[ ] the political speech and income of one major political party." According to the RNC, "[w]hether Google is characterized 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." Plaintiff seeks recovery for donations it allegedly lost as a result of its emails not being delivered to its supporters' inboxes.
Defendant has moved to dismiss Plaintiff's Complaint on the basis that Plaintiff has failed to plausibly allege its claims, and that section 230 of the Communications Decency Act, 47 U.S.C. § 230, compels the case be dismissed regardless. While it is a close case, the Court concludes that under the pleading standards set forth in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), the RNC has not sufficiently pled that Google acted in bad faith in filtering the RNC's messages into Gmail users' spam folders, and that doing so was protected by section 230….
Beginning in December 2021, the RNC observed a drop off of its messages' inboxing rate at the end of the month, a pattern that repeated in every subsequent month in 2022. Compared to other large email providers, Google allegedly diverts a larger percentage of the RNC's emails to spam at the end of every month, and with more consistency.
The RNC alerted Google to this trend in December 2021, and Google agreed to stay in communication to address the issue. Google told the RNC that the drop in the inboxing rate was likely due to a high number of user complaints and provided a list of best practices to avoid having its emails sent to spam. The RNC's email service provider confirmed that there were "no irregulates" which would be causing the issue, and the RNC's email marketing firm reported no increase in user complaints at the time the inboxing rate fell.
On March 29, 2022 the RNC met with Google to discuss the inboxing issue. Google did not provide any additional suggestions for troubleshooting the issue, but agreed to have additional follow up calls with the RNC. On June 28 and 29, 2023 Google provided additional potential explanations for the drop in inboxing: (1) the frequency of emails due to the RNC's press releases, (2) a fault in the RNC's domain authentication, and (3) Google's spam filtering algorithm which collects user spam reports over the course of the month and causes emails to be diverted to spam folders. The RNC's email service provider and email marketing firm refuted these explanations, confirming that the authenticator was functioning, and that there had been no increase in user spam reports detected. In addition, the press releases were from a different email account and comprised only 0.3% of the RNC's total email volume so ostensibly should not have impacted the inboxing rate of their marketing emails.
On August 11, 2022, Google held a training for the RNC on "Email Best Practices." The RNC followed these best practices, which did improve the overall performance of the RNC's emails, but did not impact the monthly drop in inboxing rating. The RNC alerted Google to the ineffectiveness of the suggested practices on September 29, 2022 and did not receive a response.
The RNC alleges that Google is either purposefully or negligently diverting its emails to spam. The RNC internally tested its theory that Google was intentionally discriminating against it wherein it sent two sets of emails—identical in content and sender, with the only difference being that they contained different links to variants of the RNC's donation page—to two sets of user groups. One version of the email inboxed at a "normal" rate, while the other was diverted almost entirely to spam. The RNC concedes that this test suggests emails are not being filtered by Defendant based on their communicative content. The RNC also cites to a study that found Google's Gmail labels emails from Republican candidates and Republican organizations as spam at a higher rate than their democratic counterparts, though the study does not involve the RNC.
Plaintiff brought this suit alleging violations of California's common carrier law, the Unruh Civil Rights Act, the California Unfair Competition Law, and the Federal Telecommunications Act, as well as claims alleging intentional and negligent interference with prospective economic relations, and negligence under California Civil Code § 2162. The RNC alleges that Defendant's mislabeling of its emails has caused it to lose hundreds of thousands of dollars in potential donations and has harmed its relationships with its supporters.
The court held the suit was barred by § 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. "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.'" Section 230 must be construed to protect defendants "not merely from ultimate liability, but from having to fight costly and protracted legal battles." In "close cases" section 230 claims "must be resolved in favor of immunity." …
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. (9th Cir. 2019), the Ninth Circuit took up the issue of what kind of material would fall within the catchall of "otherwise objectionable." The court rejected an interpretation of section 230 in its prior decision in Zango, Inc. v. Kaspersky Lab, Inc. (9th Cir. 2009) that gave unfettered discretion to a provider to determine what is "objectionable." 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 …."
At the same time, the Ninth Circuit rejected a narrow view of what constituted "objectiona[ble]" material, noting the "breadth" of that term. 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." 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.
This Court likewise holds that a provider such as Google can filter spam, including marketing emails, as "objectionable" material under section 230. Congress itself has recognized the harm spam can cause in enacting the Controlling the Assault of Non–Solicited Pornography and Marketing ("CAN–SPAM") Act of 2003. Given the near-universal use of spam filters by providers, the Court agrees with the weight of authority that, generally speaking, a "content provider or user could easily conclude that spam emails are 'harassing' within the meaning of the Act or are similar enough to harassment as to fall within the catchall 'otherwise objectionable.'"
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." 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." 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." 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." 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) in order to ensure that "wanted electronic mail messages" will not be "lost, overlooked, or discarded amidst the larger volume of unwanted messages."
It is clear from the Complaint that the 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….
Application of section 230 in this case, then, turns on whether the RNC has sufficiently pled that Google did not act in "good faith" when filtering the RNC's emails. While it is a relatively close case, the Court concludes Plaintiff has not sufficiently pled facts to establish that Google has acted without good faith.
In Bell Atlantic Corporation v. Twombly, the Supreme Court concluded that a plaintiff must provide more than a "formulaic recitation of the elements of a cause of action" and that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Moreover, the claim has to be "plausible on its face," a requirement that is met when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
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. 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…." 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. Third, the study indicates that Google's spam filter "responded significantly more rapidly to user interactions compared to Outlook and Yahoo," suggesting that a more plausible reason for the left-leaning bias was user input, not bad faith efforts on the part of Google.
Other allegations in the Complaint undermine the RNC's reliance on the North Carolina study and render the RNC's allegation that Google acted without good faith implausible. The RNC alleges that "for nearly a year" Google engaged with the RNC over its concerns. Google suggested that the RNC "reduce the frequency of emails that it sends at the end of each month," informed the RNC that "the monthly crashing of the RNC's inboxing rate was due to a high number of complaints," met with the RNC on March 29, 2022 and offered the RNC a training on August 11, 2022. 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. 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. Indeed, district courts in this circuit rely on the extent to which a computer service engages with a content creator to determine why its material is being diverted to spam or removed in determining whether there is an absence 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.
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," 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.
This result is consistent with the Congress's stated policy goals in enacting the Communications Decency Act, one of which was "to encourage voluntary monitoring for offensive or obscene material." … Section 230 also addresses Congress's concern with the growth of unsolicited commercial electronic mail, and the fact that the volume of such mail can make email in general less usable as articulated in the CAN-SPAM Act. 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). See 47 U.S.C. § 230(c)(2)(A) (providing no civil liability for "any action voluntarily taken in good faith to restrict access to … material that the provide or user considers to be … objectionable" (emphasis added)).
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." 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 held that the RNC's claims were substantively insufficient, even absent a § 230 defense: It held that email service providers aren't covered by current California common carrier law, a California statute that imposes "a duty of care for 'carrier[s] of messages for reward,'" California's ban on discrimination by places of public accommodation, the California tort law of intentional or negligent interference with prospective economic relations, or the California unfair competition statute (which bans "unlawful, unfair or fraudulent" activity).