The Republican National Committee is suing Google over Gmail's spam filtering, claiming the company is "unlawfully discriminating against" the RNC by "throttling its email messages because of the RNC's political affiliation and views."

"Google has relegated millions of RNC emails en masse to potential donors' and supporters' spam folders during pivotal points in election fundraising and community building," claims the lawsuit filed Thursday in US District Court for the Eastern District of California. The spam filtering has "caused the RNC to lose valuable revenue in California and the rest of the country, and Google's conduct will continue to cost the RNC further revenue in the coming weeks as the 2022 midterm election looms, and beyond," it says.

The lawsuit argues that the "timing of Google's most egregious filtering is particularly damning." The RNC said nearly all of its emails get through to users' inboxes for most of each month, but that the ratio flips at the end of the month.

"At approximately the same time at the end of each month, Google sends to spam nearly all of the RNC's emails," the lawsuit said. "Critically, and suspiciously, this end of the month period is historically when the RNC's fundraising is most successful. It doesn't matter whether the email is about donating, voting, or community outreach. And it doesn't matter whether the emails are sent to people who requested them. This discrimination has been ongoing for about ten months—despite the RNC's best efforts to work with Google."

Google denied the allegations, saying the spam filtering is based on actions taken by users. "As we have repeatedly said, we simply don't filter emails based on political affiliation," Google said in a statement provided to Ars. "Gmail's spam filters reflect users' actions. We provide training and guidelines to campaigns, we recently launched an FEC-approved pilot for political senders, and we continue to work to maximize email deliverability while minimizing unwanted spam."

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RNC: Gmail is “modern-day Western Union”

The RNC lawsuit compared Google's actions to Western Union discriminating against telegraph users based on their political views in the 1800s. "At bottom, Google's email service is a modern-day Western Union: Google offers to carry messages in the form of electronic mail... Although Google's tools for discriminating might be more sophisticated than Western Union's, that doesn't make it any less of a business in violation of the longstanding nondiscrimination obligations states like California have enacted," the lawsuit said.

The RNC asked for a court order "declaring unlawful and enjoining Google's diversion of the RNC's communications to its supporters that use Google's Gmail service." The Republican group also asked for compensatory, statutory, and punitive damages. "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," the lawsuit said.

The RNC said it wants quick action because the upcoming midterm elections make it "imperative that Google immediately ceases its practice of intentionally (or negligently) mislabeling RNC emails as spam." The lawsuit alleges violations of California's common carrier law, Unruh Civil Rights Act, and Unfair Competition Law. It also alleges intentional and negligent interference with prospective economic relations, negligence, and unlawful discrimination.

As Google noted in its statement on the lawsuit, the US Federal Election Commission in August approved the company's plan to let campaign emails bypass Gmail spam filters. The FEC's advisory opinion said Gmail's pilot program is permissible under the Federal Election Campaign Act and FEC regulations "and would not result in the making of a prohibited in-kind contribution."

The Democratic National Committee objected to the Google plan, saying it would reward "a variety of fundraising practices designed to mislead donors." The DNC accused Republicans of using "abusive fundraising tactics" including "pre-checked boxes that trick donors into unknowingly making recurring contributions."

Gmail has also received complaints from individual Republicans such as Sen. Marco Rubio (R-Fla.). But Rubio's problem "was that a vendor had not enabled an authentication tool that keeps messages from being marked as spam," The Washington Post reported in late July. Rubio was one of over 20 Senate Republicans who sponsored legislation that would prohibit email providers from using "filtering algorithms to flag emails from political campaigns" unless the receiver of the email "took action to apply such a label."