• by Wendy Davis , Yesterday

Federal Trade Commission Chair Andrew Ferguson on Thursday warned Google over allegations that its spam filters are blocking fundraising messages from Republicans.

"My understanding from recent reporting is that Gmail’s spam filters routinely block messages from reaching consumers when those messages come from Republican senders but fail to block similar messages sent by Democrats," Ferguson says in a letter to Google CEO Sundar Pichai.

"Indeed, according to recent reporting, Alphabet has 'been caught this summer flagging Republican fundraising emails as "dangerous" spam -- keeping them from hitting Gmail users’ inboxes -- while leaving similar solicitations from Democrats untouched," Ferguson writes, citing a New York Post article.

Ferguson added that the National Republican Senatorial Committee and National Republican Congressional Committee complained in May about Google's spam filters.

He writes that Google's "alleged partisan treatment of comparable messages or messengers in Gmail to achieve political objectives" may be illegal.

"Hearing from candidates and receiving information and messages from political parties is key to exercising fundamental American freedoms and our First Amendment rights," he writes. "If Gmail’s filters keep Americans from receiving speech they expect, or donating as they see fit, the filters may harm American consumers and may violate the FTC Act’s prohibition of unfair or deceptive trade practices."

A Google spokesperson says its spam filters "look at a variety of objective signals -- like whether people mark a particular email as spam, or if a particular ad agency is sending a high volume of emails  that are often marked by people as spam."

"This applies equally to all senders, regardless of political ideology. We will review this letter and look forward to engaging constructively,” the spokesperson says.

Google previously defeated a lawsuit by the Republican National Committee, which alleged in 2022 that Google wrongly flagged fundraising emails 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 said in court papers that 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.

The Republican committee is appealing that ruling to the 9th Circuit Court of Appeals.

Google argued in recent court papers that committee's claim of political bias was 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 wrote in papers filed in April. “Many Gmail users, in fact, were marking RNC emails as spam.”

This isn't the first time the FTC chief has publicly questioned whether tech companies are suppressing conservative material. Earlier this year, he launched an investigation into what he claimed were “potentially illegal” editorial decisions by social media platforms.

"Big Tech censorship is not just un-American, it is potentially illegal,” Ferguson tweeted at the time.

The FTC elaborated in its official statement that platforms' decisions to “cut users off” may raise antitrust concerns.

Under his leadership, the FTC is also investigating whether ad groups' brand safety efforts amounted to "advertiser boycotts."