This piece will be cross-posted at Techdirt (thank you, Mike Masnick!).
In 1872 California enacted a law declaring that “every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” In 2022 the Republican National Committee sued Google, alleging that, by shunting GOP fundraising emails into Gmail spam folders, it had violated this 150-year-old common-carrier law. A federal district court dismissed the complaint. The RNC took the case to the U.S. Court of Appeals for the Ninth Circuit, where last month it submitted its opening brief.
I’m a firm believer in the value of “show, don’t tell” as a principle of writing, and I will address the RNC’s legal arguments in due course. But this is a rare instance where it’s probably best simply to announce up front that what’s happening here is stupid and insane. I’m never happy when lawyers try to redesign via lawsuit complex systems they don’t understand. But this one is jaw-dropping. Why not let some law that governed nineteenth-century blacksmiths dictate how we build rockets? Can someone dig up a decree setting standards for sixteenth-century door locks? Might be useful in a suit against a cybersecurity firm.
“It is revolting,” Oliver Wendell Holmes wrote, “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” And “it is still more revolting,” he went on, “if the grounds upon which it was laid down have vanished long since.” You could object that Holmes over-rotated on his disdain for tradition, and I would agree with you. But the GOP’s attempt to make email conform to a statute crafted for coaches, trains, and ferry boats could indeed be called “revolting”—I might go with “demented”—and for essentially the reason Holmes cites: the grounds upon which California’s ancient common-carrier law was laid down have vanished.
There is a reason why digital technologies are thought to have brought on an “Information Age.” When a pair of researchers at UC Berkeley tried twenty-five years ago to measure all the information in the world, they estimated that “printed documents of all kinds comprised only .003% of the total.” That trend has only accelerated. Something like ninety percent of the data that exists today was created in the last three or four years.
To send a letter in California in 1872, you had to buy paper and ink, to print words on the paper by hand or with a machine, and to pay for a massive postal apparatus—clerks, conductors, drivers, engines, cars, coaches, horses, mules, and more—to carry the paper from one place to another. Today, by contrast, the marginal cost of distributing information is nearly zero. Anyone with a computer and an internet connection can create and send virtually unlimited copies of an email free of charge. (Because partisan fundraising emails are full of formulaic slop, not even content creation ought to cost the GOP much.)
“Mail” and “email” sound like they must be very similar, but they aren’t. Mail has a cost; email essentially does not; and that makes all the difference. This has been clear from the start. In 1984 a computer scientist named Jacob Palme noticed that “an electronic mail system can, if used by many people, cause severe information overload.” The “cause of this problem,” he explained, is that “it is so easy to send a message to a large number of people”—the sender has “too much control of the communication process.” As a result, “people get too many messages” and “the really important messages are difficult to find in a large flow of less important messages.” Palme proceeded to sketch a system of recipient-side message controls that looks remarkably like contemporary spam-filtering.
Another distinction is that an email service, unlike a mail service, does not “carry” messages for you. Your missives travel through an internet service provider, a domain-name-system server, and internet backbone providers, then into a recipient email service. Your email service is just an internet edge provider. It’s not like the stage company in the 1870s, carrying your letter from station to station; it’s like a secretary in the 1940s, making sure your letter goes into the right outbox. The RNC responds that California’s 1872 law reaches anyone who “offers” to carry things. The GOP sees Gmail as a carrier, the argument effectively runs, so a court should overlook the GOP’s ignorance of (and their lawyers’ refusal to accept) how the internet actually works. But this just brings us back to Jacob Palme’s prescient concern. Google “offers” not to carry stuff for you, but to sort it for you. It offers to separate the really important messages from the less important ones. Filtering spam is the heart of its service, as shown by its boast that Gmail “blocks 99.9%” of it.
The 1872 law does not cover telegraphy, the most advanced communication method of the time. Nor did California simply invoke the 1872 law when it recently decided to impose common-carrier mandates on ISPs; it passed a distinct law instead. Contrary to the RNC’s claims, therefore, the 1872 law is not some deeply evolving statute, always rushing out in front of great leaps in technology. That Gmail does not “carry” messages is no trifling detail. That spam-filtering is integral to what Google “offers” is not a mere technicality. These are material facts that take Gmail outside the scope of California’s nineteenth-century common-carrier law. (When they saw how much that law cares about things like “schedule[d] time[s] for the starting of trains or vessel[s] from their respective stations or wharves,” the RNC’s lawyers should have admitted defeat and shelved their complaint. But here we are.)
Not surprisingly, the RNC wants to duck responsibility for trying to break your spam filter. Its solution is to contend that common carriers are allowed to filter spam, but that the RNC’s emails are not spam, and that Google has treated them as spam in bad faith.
The RNC’s emails are spam. Their tone would make a used-car salesman blush—“URGENT . . . Patriot, 20X matching EXPIRING SOON”—and they’ve been known to swarm inboxes by the dozen each day. I’ve written elsewhere about what rotten spammy spam they are; I won’t rehash here how they look like legalized elder abuse. The RNC’s lawsuit was dismissed on the pleadings, so we’re stuck, for now, having to take the accusation of bad faith more or less at face value.
But that still leaves the RNC’s assumption that a common carrier is allowed to “filter some . . . spam-related expression.” The RNC plucks those words from Judge Andy Oldham’s opinion in NetChoice v. Paxton (5th Cir. 2022), without acknowledging that, in the part of the opinion they’re quoting, Judge Oldham was writing for himself alone. (Never mind that the whole opinion was also blown to pieces and vacated by the Supreme Court.) Go to that part of the opinion, moreover, and you will find no citation, drawn from the hoary common-carrier cases, for this supposed rule about common carriers and spam—an unavoidable omission, since spam came into its own only with recent technological developments. The 1872 law has nothing to say about spam: it demands that a common carrier “accept and carry whatever is offered to him . . . of a kind that he is accustomed to carry.” Maybe a court could cram a spam exception into that “accustomed to carry” bit, but that new rule would bear no connection to what the common carriers of old did (they’d never heard of “spam”). Rather, it would be cut by judges from whole cloth, and it would place on them the task of drawing from scratch a comprehensive set of lines separating “spam” and “non-spam.” Judges would be anointing themselves the arbiters of Jacob Palme’s distinction between important and unimportant messages.
Google has no magic spam sorting wand. For that matter, email does not arrive in neat “spam” and “non-spam” categories. Email comes in a terrific array of gradations between those two poles, and Google uses a variety of signals—e.g., the sender’s message cadence, the recipient’s reading habits, the presence of certain trigger words—to determine which emails cross the line and fall into the spam folder. It’s a game of cat and mouse, with spammers constantly deploying new strategies to evade Google’s filters, and Google constantly adjusting and filling gaps in its process. The RNC’s new strategy is to file a lawsuit in hopes of evading Google’s filters with the help of a court. It’s a strategy with immense upside potential: if the RNC succeeds, Google will be unable to adjust; the RNC will possess a ticket to pass through Google’s spam defenses indefinitely. This is a great prize the RNC covets, and it is important for the Ninth Circuit to understand that many other entities, too, would go to great lengths to win it. If the RNC succeeds, things will not end there. A mob of other spammers will pile into the litigation strategy of spam-filter evasion.
The issue here is not only that judges would be no good at second-guessing email services’ spam-filtering decisions—though that is of course true. It is also that, faced with the burden and expense of litigating their spam-filtering decisions, email services would likely opt simply to block much less spam.
Don’t take my word for it: the FCC has said as much with regard to text-messaging. Various groups for years urged the FCC to subject text-messaging services to common-carrier rules under the Communications Act of 1934. In 2018 the agency, at the time—and I cannot stress this enough—under Republican control, issued an order declining to do so. Although it had to start by explaining why text-messaging services aren’t common carriers under the somewhat arcane standards set forth in the Communications Act, the FCC devoted most of its energy to protesting that common-carrier rules for text-messaging is just a dumb idea. Why? Because it’d stop text-messaging services from blocking spam.
The FCC “disagree[d] with commenters that [common-carrier rules] would not limit providers’ ability to prevent spam . . . from reaching customers.” Tellingly, some of those commenters were purveyors of “mass-text[s],” who were seeking “to leverage the common carriage [rules] to stop wireless providers from . . . incorporating robotext-blocking, anti-spoofing measures, and other anti-spam features into their offerings.” With common-carrier rules in place, those “spammers” would be free, the agency concluded (quoting a trade group), to “bring endless challenges to filtering practices” and destroy services’ ability to “address evolving threats.” Ultimately, common-carrier rules would “open the floodgates to unwanted messages—drowning consumers in spam at precisely the moment when their tolerance for such messages is at an all-time low.”
The FCC’s 2018 order knocks down two of the main points raised by the RNC today. First, the RNC claims, as we’ve seen, that common-carrier requirements and spam-filtering policies are compatible. Looking, however, at telephone services—quintessential common carriers—the FCC concluded otherwise. The agency had “generally found call blocking by providers to be unlawful, and typically permit[ted] it only in specific, well-defined circumstances.” Hence the FCC’s belief that common-carriage status for text messages would lead to a flood of spam.
Second, the RNC treats Gmail as a “market-dominant” service capable of “systematically chok[ing] off one major political party’s” fundraising emails. But as the FCC observed, communications “providers have every incentive to ensure the delivery of messages that customers want to receive in order to . . . retain consumer loyalty.” Services that over-filter messages “risk losing th[eir] customers” to competitors. This market mechanism is, if anything, stronger in the context of email than in the context of text messages, as it is far easier to set up an email service than to enter the wireless industry. As Justice Clarence Thomas notes, “No small group of people controls e-mail”—its “protocol” is “decentralized.” (That’s right: Thomas is an outspoken proponent of common-carrier rules for social media, and even he seems to understand that such rules make no sense for email.)
By far the most plausible explanation for why the GOP’s emails landed in Gmail spam folders is that the GOP dishes out tons of spam. It would be nice if the Ninth Circuit could cut to the chase and say so. (This would have the added benefit of cleanly slicing through other legal arguments the RNC raises, in addition to its common-carrier argument.) Given the case’s posture (again, the lawsuit was dismissed on the pleadings), the court probably won’t do that. Google will have to retreat to the more subtle, but no less critical, matter of who is to judge what qualifies as spam. Should we leave it to competing email services to make these calls? Or are we better off if any disgruntled third party can throw such decisions into the courts? This is not a hard one. The Ninth Circuit should make clear that it wants nothing to do with email product design and managing your inbox. Along the way, maybe it can pause to mock the RNC’s revolting use, in a case about the internet, of a law fit for horses and steam engines.