FEC rules against Republican claims of Google Mail bias

In October, 2022, ahead of the crucial midterm elections in which its much-prophesied “Red Wave” failed to materialize more than a raspberry ripple, the Republican National Committee launched a joint complaint to the Federal Election Commission, alleging that GMail’s spam filters were illegally biased against Republican fundraising emails, because Google Mail filed such mails into the spam folder “disproportionately often.”

On its own. Because of woke liberal algorithms.

We’re joking – but only just.

Nope!

Now the FEC has concluded its investigation. It has repudiated the RNC’s allegations, not on the basis that Google Mail doesn’t file Republican fundraising calls in the spam folder more often than it does Democratic ones, but on a point of legalistic definition of what constitutes a prohibited action by a company like Google.

It “found no reason to believe that [Google] made prohibited in-kind corporate contributions” to Democrats in the form of more favorable email filtering results, it said. The RNC allegations claimed the “disproportionate” spam-foldering of its fundraising mails amounted to this kind of prohibited in-kind corporate contribution to the Democratic party.

If it happened, that would be a valid ground for complaint. The FEC – perhaps wisely – made no concrete ruling on whether Gmail was somehow spam-foldering the GOP’s fundraising mails disproportionately. It stuck to the less muddy waters of intention. To qualify as a prohibited in-kind corporate contribution, and a violation of the rules, a contribution must be “made for the purposes of influencing an election for federal office.”

That’s a far higher marker of influence-intention than Google would ever dare to attempt. Google filters email for spam, certainly, but it does it for commercial reasons, and it does it to all mail, always. It’s always – for those who train their eye and ear to the pronouncements of the big tech companies – been dispassionately crystal clear on that. To modify a political pronouncement of George Carville’s in 1992, as far as Google is concerned, it’s not about the politics, “it’s the money, stupid!”

Malware, and phishing, and scams – oh my!

So even if it turned out that Google Mail’s spam filtering genuinely let more Democratic mail through than Republican, the pre-existence of Google’s statements about its reasons for filtering the spam would be enough to exhibit commercial, rather than illegal election-swaying intention.

In the letter in which the FEC explained the reasons behind its decision, it cited Google’s history of statements explaining that it filtered spam “to block malware, phishing and scams” – rather than to stifle campaign donations to any party. That history puts Google in the clear, and on this occasion, the definition of an illegal in-kind corporate contribution is enough on its own to reject the RNC’s allegations.

“In sum, Google has credibly supported its claim that its spam filter is in place for commercial reasons and thus did not constitute a contribution within the meaning of the [Federal Election Campaign Act],” the FEC said.

There is a subsequent question to ask about the structure of RNC fundraising emails, and whether they have the characteristics of malware, phishing or scams – which could trip the system into sending them to the spam folders of recipients in a kind of “electronic good faith.” But under normal circumstances, that would be an issue for the RNC to address internally, rather than for Google to address via a change of policy, or for the FEC to rule on.

The Hunter Biden claim.

The RNC has some experience in this kind of complaint – in 2021, it attempted to swing the FEC behind its claims that Twitter’s decision to suppress reporting from the New York Post over Hunter Biden’s laptop was an example of big tech displaying anti-conservative bias.

It wasn’t, as the FEC ruled. The decision, it said, had been made “for a valid commercial reason.”

In a sense, the RNC’s continued attempts to prove its interests are being harmed by big tech platforms belies the tone of conspiracist thinking that has permeated the party in recent years. Over 300 Republican candidates in the 2022 midterms campaigned on the false “stolen election” narrative of Donald Trump – and while they ultimately had a very bad night in November, an unhealthy handful of such conspiracists were able to make it through, and subsequently make a farce of the election of House Speaker, Kevin McCarthy.

The ongoing lawsuit.

The email filtering issue is not quite dead and buried yet, though. The RNC has a separate lawsuit against Google on the same grounds of biased anti-conservative spam filtering, which is ongoing.

As Tech HQ pointed out when the lawsuit was first filed, the RNC’s claims include and potentially rest on several technological misunderstandings.

Number #1 – Google doesn’t carry mail per se, so even if, for instance, the bosses at Gmail were in some kind of Democratic cabal determined to starve the GOP of election funding and crash the otherwise inevitable red wave, it couldn’t do it with any predictable certainty.

Number #2 – users can define what kinds of mail they regard as spam, and the mail server will obey their pre-sets. Any observable preponderance of spam-filtering on the run-up to an election might conceivable be a simple case of more people setting their filters to block mails from any or all political parties.

And number #3 – Google was at the time of the filing, and continues to be, actively working on an FEC-approved project that would allow all political fundraising mail to bypass its spam filters.

The lawsuit is widely predicted to follow the same course as the FEC investigation, but, as with the Stop The Steal narrative, defeat is unlikely to stop believers believing in their persecution at the hands of Big Email.