• by Wendy Davis  @wendyndavis, May 5, 2025

The policy group TechFreedom is backing Google in its fight with the Republican National Committee over Gmail filters that allegedly sent fundraising messages to users' spam folders.

In a friend-of-the-court brief filed late last week with the 9th Circuit Court of Appeals, TechFreedom argues that email carriers should not be required to follow the same California “common carrier” rules that prohibit telephone companies or the U.S. Postal Service from discriminating.

“Although 'mail' and 'email' might sound similar, they aren’t,” TechFreedom writes. “Mail has a cost; email essentially does not; and that makes all the difference.”

The organization is asking the 9th Circuit to reject the Republican National Committee's bid to revive its claim that Google violated California's common carrier law by allegedly disproportionately designating Republican fundraising emails as spam.

The group's argument comes in a dispute dating to October 2022, when the Republican political organization claimed Google had flagged the group's emails due to political bias.

The complaint cited a North Carolina State University study that found Gmail flagged around 68% of Republican campaign emails as spam, compared to 8% Democratic campaign emails. The organization said the “mass relegation” of its emails to Gmail spam folders stopped in 2022, soon after it sued.

The Republican National Committee claimed in its complaint that Google violated California's civil rights law and its common carrier law.

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

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 recently opposed that request.

TechFreedom says in its friend-of-the-court brief that email shouldn't be subject to California's common carrier law for several reasons. Among others, the group argues that Google -- unlike the U.S. Postal Service -- doesn't transport email, but merely “sorts” it into different categories.

“Google offers to separate the really important messages from the less important ones. Filtering spam is the heart of its service, as shown by its claim that Gmail “blocks 99.9%” of it,” TechFreedom writes.

The group adds that the common carrier rules -- written in an era when mail had to be physically transported (via coach, horses or other physical modes of travel) -- are a bad fit for “a free and nearly instantaneous medium like email.”

Providers like Gmail are “not like the stage company in the 1870s, carrying letters from station to station,” but are instead “like a secretary in the 1940s, making sure letters go into the right outbox,” TechFreedom writes.

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