HARMON CURRAN NONPROFIT LAW BLOG

The Republicans are waging war on Google’s spam filter.  On April 26, 2022, the Republic National Committee (RNC), National Republican Senatorial Committee (NRSC), and the National Republican Congressional Committee (NRCC) filed a complaint with the Federal Election Commission (FEC) against Google. The compliant is based on a North Carolina State University study that purports to determine whether the spam filters of three major e-mail providers – Google, Outlook, and Yahoo – expressed a bias in blocking political e-mails during the 2020 election (the study is attached to the complaint).  The study observed that “as an aggregate trend, Gmail leaned towards the left while Outlook and Yahoo leaned toward the right.”  The study further found that Gmail retained the majority of e-mails from left wing candidates while marking “up to 77.2%” of right-wing candidate e-mails as spam. 

The complaint takes a more hyperbolic approach and alleges that Gmail marked Republican e-mails as spam “at more than an 820% higher rate” than emails from Democratic candidates.  It states that there are only “two conceivable explanations” for the supposed disparity – that Google’s spam filter sucks or that Google was using the spam filter to “eliminat[e] a major source of political fundraising for Republic candidates.”  Right wing news outlets claim that Google’s spam filters have cost Republican candidates an estimated $2 billion since 2019.  As a result, the complaint urges the FEC to find that Google violated federal campaign finance laws by making illegal in-kind contributions to Democratic candidates.

Here’s the thing, though – for an illegal in-kind campaign contribution to have occurred, the contribution must have been made “for the purpose of influencing any election for Federal office.”  52 U.S.C. § 30101(8)(A).  The authors of the study have publicly stated that the complaint misrepresents the study’s findings; the complaint cites findings based on the default spam filtering algorithm present in new accounts, prior to the spam filter adjusting to user preference.  Once user preference is considered, the authors of the study state that there is no bias in the algorithm.  Furthermore, the existence of an algorithmic bias is not evidence of an intent to influence Federal elections, especially when user preference removes the bias.  The complaint is yet another example of the Republican party cherry-picking information that supports their cause and pointedly ignoring information that does not.

At this point in time, any proceedings regarding the complaint are not a matter of public record; the complaint is only public because the Republicans released it.  However, on July 1, 2022, Google submitted a request to the FEC for an advisory opinion on whether a pilot program that would permit political e-mails from verified senders to bypass the spam filter would result in an illegal in-kind contribution.  The pilot program will permit e-mail from eligible participants – at this point, only FEC registered candidates and party committees – that meet certain security criteria and that follow the Google terms of service to bypass Google’s spam filter.  The first e-mail delivered to a user’s inbox will be required to include a banner at the top asking whether the user wishes to continue receiving messages from the sender.  Additionally, all e-mails from eligible participants will be required to offer “one-click unsubscribe.”  The pilot program will be offered, according to Google, “on a non-partisan” basis, and, if successful, may be expanded to other bulk senders, such as government agencies, senders of class-action notices, and non-profit organizations.

The request appears to be an attempt by Google to placate the Republican party at the cost of its user experience.  Corporations generally may provide goods and services to political candidates and committees if done so on the same terms and conditions available to the general public.  AO 2004-06.  However, because it is a pilot, the program is only available to a limited population – political candidates and committees – not the general public.  Google states that it “may” extend the pilot program to other bulk senders and that it chose political candidates and committees as the test population because of the ease of verifying the status of this population with the FEC.  However, this argument falls short because it is just as easy to verify the status of nonprofit organizations, one of the other categories to whom Google “may” extend the program, using the Internal Revenue Service’s Tax Exempt Organization Search.  If Google never expands the bulk senders to whom the program is available, Google will have offered political candidates and committees a valuable service that, while ostensibly nonpartisan, nonetheless shows an intent to influence the 2022 election.

To date, the FEC has received more than 2,400 comments, all of which are made publicly available.  Most of these comments urge the FEC to reject Google’s request, primarily on the basis that no one wants to receive more e-mail.  Although public sentiment may have some impact, the FEC cannot rule adversely on Google’s request unless it receives comments providing a reasoned basis for why the program results in an illegal in-kind contribution.  The FEC released a draft advisory opinion on August 2, 2022 and has requested that comments be submitted by August 11, 2022.  Comments should be sent to ao@fec.gov with “AO 2022-14” in the subject line.