• by Wendy Davis  @wendyndavis, Yesterday

Google is urging a federal appeals court to reject the Republican National Committee's attempt to reinstate claims that its messages to Gmail users were wrongly flagged as spam due to partisan bias.

“The same Gmail algorithm governs emails sent by the Democratic National Committee -- and everyone else,” Google argues in papers filed Monday with the 9th Circuit Court of Appeals.

“The RNC’s core contention -- that this spam filtering was the product of political discrimination rather than the politically neutral Gmail algorithm reading signals from Gmail users about which emails they are likely to consider spam -- is demonstrably false,” the company writes.

Google's new court papers come in a battle that began in October 2022, when the Republican political organization sued Google for allegedly disproportionately designating Republican fundraising messages as spam.

The political group's complaint referred to a North Carolina State University study that found Gmail flags around 68% of Republican campaign emails as spam, compared to 8% Democratic campaign emails. (The organization says the “mass relegation” of its emails to Gmail spam folders stopped soon after it filed suit.)

The complaint included claims that Google violated California's common carrier law (which prohibits certain types of companies from discriminating when transmitting messages) and a state civil rights law banning discrimination.

U.S. District Court Judge Daniel Calabretta in the Eastern District of California dismissed the suit, ruling that California's civil rights law, the Unruh Act, doesn't cover discrimination based on political affiliation, and that email providers like Google aren't considered common carriers in the state.

“No court, much less a court interpreting California’s common carrier law, has found an email service provider to be a common carrier. This court declines to be the first,” he wrote.

The political organization recently asked the 9th Circuit to reinstate the lawsuit, effectively arguing that Calabretta interpreted the Unruh Act and the state's common carrier law too narrowly.

Google says in its new court papers that the Republican committee's claim of political bias is implausible.

“The RNC’s own allegations show a common-sense explanation why Gmail flagged some of the RNC’s emails as potential spam: they appeared to be spam,” the company argues. “Many Gmail users, in fact, were marking RNC emails as spam.”

Google adds that even if the bias allegations were deemed plausible, the Republican group still wouldn't have grounds to sue.

For one thing, Google argues, Section 230 of the Communications Decency Act shields companies from liability for good faith efforts to block spam, and a provision protecting web companies from lawsuits over content-moderation decisions.

Additionally, Google says the state's civil rights law doesn't explicitly prohibit discrimination based on political affiliation, and that email providers are not considered common carriers in California.

“No California court ever held that the Unruh Act’s protections extend to the unenumerated category of political affiliation,” Google writes.

The statute itself prohibits discrimination based on a host of listed factors -- including sex, race, color, religion, ancestry, national origin, disability, marital status, sexual orientation -- but doesn't specifically mention political affiliation.

The company adds that California courts have previously ruled that the state's common carrier rules only apply to “businesses that transport people from place to place,” traditional mail carriers and telephone providers.

The 9th Circuit hasn't yet said when it will hear arguments in the case.