FTC chairman revives GOP claims previously rejected by judge and election agency.
Credit: Getty Images | pagadesign
Federal Trade Commission Chairman Andrew Ferguson accused Google of using “partisan” spam filtering in Gmail that sends Republican fundraising emails to the spam folder while delivering Democratic emails to inboxes.
Ferguson sent a letter yesterday to Alphabet CEO Sundar Pichai, accusing the company of “potential FTC Act violations related to partisan administration of Gmail.” Ferguson’s letter revives longstanding Republican complaints that were previously rejected by a federal judge and the Federal Election Commission.
“My understanding from recent reporting is that Gmail’s spam filters routinely block messages from reaching consumers when those messages come from Republican senders but fail to block similar messages sent by Democrats,” Ferguson wrote. The FTC chair cited a recent New York Post report on the alleged practice.
The letter told Pichai that if “Gmail’s filters keep Americans from receiving speech they expect, or donating as they see fit, the filters may harm American consumers and may violate the FTC Act’s prohibition of unfair or deceptive trade practices.” Ferguson added that any “act or practice inconsistent with” Google’s obligations under the FTC Act “could lead to an FTC investigation and potential enforcement action.”
“While outside my purview, I believe such conduct may also violate applicable state consumer protection laws,” Ferguson’s letter said in a footnote.
Google beat RNC in court
Google provided Ars with a statement today. “Gmail’s spam filters look at a variety of objective user signals—like whether a user marks an email as spam or if a particular ad agency is sending a high volume of emails on behalf of their clients that are often marked by users as spam. This applies equally to all senders, regardless of political ideology. We will review this letter and look forward to engaging constructively,” Google said.
The Republican National Committee (RNC) sued Google in October 2022 over its spam-filtering practices. Google said in response that the RNC never participated in a pilot program that let political emails bypass the Gmail spam filter.
A US District Court judge granted Google’s motion to dismiss the lawsuit in August 2023, ruling that Google’s email service is not a common carrier under the law and that its filtering is protected under Section 230 of the Communications Decency Act. The RNC filed an amended complaint, but the judge found no evidence of illegal conduct and dismissed the lawsuit with prejudice. The RNC appealed the ruling to the US Court of Appeals for the 9th Circuit.
In January 2023, the Federal Election Commission rejected a related RNC complaint that alleged Gmail’s spam filtering amounted to “illegal in-kind contributions made by Google to Biden For President and other Democrat candidates.” The federal commission found “no reason to believe” that Google made prohibited in-kind corporate contributions and said that a study cited by Republicans “does not make any findings as to the reasons why Google’s spam filter appears to treat Republican and Democratic campaign emails differently.”
FTC: Political emails “key to exercising fundamental American freedoms”
The recent New York Post story that led Ferguson to send his letter said that a consulting firm conducted tests that “involved sending identical emails through Gmail, with the only difference being that one contained a WinRed donation link and the other contained an ActBlue link.” The Republican emails were flagged as spam while the Democratic ones were not, according to the article.
Ferguson’s letter quoted a portion of the article that said Google was “caught this summer flagging Republican fundraising emails as ‘dangerous’ spam—keeping them from hitting Gmail users’ inboxes—while leaving similar solicitations from Democrats untouched.” Ferguson also cited comments submitted to the FTC in response to its inquiry on “tech censorship.”
Ferguson said that “similar concerns have resulted in ongoing litigation against Google in other settings” but did not mention that a judge rejected the Republican claims.
“Hearing from candidates and receiving information and messages from political parties is key to exercising fundamental American freedoms and our First Amendment rights,” Ferguson’s letter said. “Moreover, consumers expect that they will have the opportunity to hear from their own chosen candidates or political party. A consumer’s right to hear from candidates or parties, including solicitations for donations, is not diminished because that consumer’s political preferences may run counter to your company’s or your employees’ political preferences.”
Google: Gmail users marked RNC emails as spam
The RNC’s appeal of its court loss is still pending, with the case proceeding toward oral arguments. Google told the appeals court in April that “the Complaint’s own allegations make it obvious that Gmail presented a portion of RNC emails as spam because they appeared to be spam…. The most obvious reason for RNC emails being flagged as spam is that Gmail users were too frequently marking them as such.”
Google also said that “the RNC’s own allegations confirm that Google was helping the RNC, not scheming against it… The RNC acknowledges, for example, that Google worked with the RNC ‘[f]or nearly a year.’ Those efforts even included Google employees traveling to the RNC’s office to ‘give a training’ on ‘Email Best Practices.’ Less than two months after that training, the last alleged instance of the inboxing issue occurred.”
While the RNC “belittles those efforts as ‘excuses’ to cover Google’s tracks… the district court rightly found that judicial experience and common sense counsel otherwise,” Google said. The Google brief quoted from the District Judge’s ruling that said, “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.”
Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.
