FEC dismisses RNC complaint that Google’s spam filters were biased against conservatives

By Brian Fung, CNN

The Federal Election Commission has tossed out claims by the Republican National Committee that Google’s spam filters in Gmail are illegally biased against conservatives, according to an agency letter obtained by CNN.

The decision resolves a joint FEC complaint filed last year spearheaded by the RNC that alleged Gmail’s automated filters had sent Republican fundraising emails to spam at a higher rate than for Democratic candidates during the 2020 election cycle. The RNC didn’t immediately respond to a request for comment.

The FEC decision to dismiss the complaint and close the case is the latest defeat for Republicans who have sought on multiple occasions to bring the agency’s powers to bear against tech platforms over allegations of anti-conservative bias. In 2021, the FEC dismissed a similar RNC claim against Twitter over the company’s decision to temporarily suppress the New York Post’s reporting about Hunter Biden’s laptop, saying the content moderation decision appeared to have been made “for a valid commercial reason.”

The FEC took the same stance on the Gmail filtering issue in a letter to Google last week, and which the company provided to CNN on Wednesday.

In the Jan. 11 letter, the FEC said its review “found no reason to believe that [Google] made prohibited in-kind corporate contributions” to Democrats in the form of more favorable email filtering treatment.

In order to be considered a violation, the FEC wrote, “a contribution must be made for the purpose of influencing an election for federal office,” adding that Google’s public statements have made clear its spam filtering exists “for commercial, rather than electoral, purposes.”

Even if it were true that Gmail spam filtering happened to favor Democratic campaigns over Republican ones, the FEC wrote — an allegation the commission neither explicitly endorsed nor rejected — that outcome would not necessarily make Gmail’s underlying conduct an illegal campaign contribution.

In its letter, the FEC cited Google’s public statements claiming that its reasons for spam filtering include blocking malware, phishing attacks and scams.

“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],” it wrote.

Documents related to the case will be made available to the public by Feb. 10, according to the letter.

“The Commission’s bipartisan decision to dismiss this complaint reaffirms that Gmail does not filter emails for political purposes,” said José Castañeda, a Google spokesperson. “We’ll continue to invest in our Gmail industry-leading spam filters because, as the FEC notes, they’re important to protecting people’s inboxes from receiving unwanted, unsolicited, or dangerous messages.”

While the FEC did not weigh in directly on Gmail’s practices, the letter highlighted the limitations and context surrounding a 2022 academic study that the RNC had leaned heavily upon in its initial complaint.

The study by North Carolina State University researchers had involved an experiment testing the spam filters of Gmail, Microsoft Outlook and Yahoo! Mail. Its findings suggested that of the three email providers, Gmail was the likeliest to mark emails from Republican campaigns as spam.

The RNC had cited the study’s findings as evidence of “illegal, corporate in-kind contributions” to Democratic candidates, including Joe Biden, and called for an FEC investigation.

But the FEC’s letter cited several factors that cast doubt on the RNC’s interpretation of the research, including the study’s own statements of limitations and a Washington Post interview with one of the study’s lead authors, who had said Republicans were “mischaracterizing” the paper.

The study itself acknowledged that it covered a short period of time, and that its findings could have been affected by campaigns’ own tactical decision-making as well as other variables the study did not account for, the FEC wrote, adding that in its response to the RNC allegations Google had said the researchers used a sample of 34 email addresses “when Gmail has 1.5 billion users.”

“Though the NCSU Study appears to demonstrate a disparate impact from Google’s spam filter, it explicitly states that its authors have ‘no reason to believe that there were deliberate attempts from these email services to create these biases to influence the voters,'” the FEC added.

Meanwhile, a separate RNC lawsuit against Google over the same Gmail filtering issue is still ongoing. And Google has continued with an FEC-approved pilot project that allows political campaigns to bypass Gmail’s spam filters. More than 100 political entities are participating in that program, a Google spokesperson told CNN on Wednesday.

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