SACRAMENTO, Calif. (CN) — Google appeared likely Thursday to defeat a lawsuit that says it deliberately sent emails from the Republican National Convention to spam folders.
While the RNC claims that it was subjected to viewpoint discrimination, U.S. District Judge Daniel Calabretta pointed to the results of a so-called A/B test in which the RNC sent two emails that were virtually identical.
One went to the spam folder and the other to a regular inbox. If discrimination was occurring, the Biden-appointed judge noted, both should have gone to spam.
Calabretta also cited a study in which the author concluded that Google isn’t intentionally discriminating and that instead the emails’ destination is the result of a spam filter.
Attorneys for the RNC argued that its emails suddenly and frequently were diverted from their intended recipients — people who had opted to get these emails — to spam folders in the months before the 2022 midterm election.
It also observed that these diversion tended to occur at the end of each month, which is the most successful time of the RNC’s fundraising efforts.
RNC officials spoke with Google over nine months about the issue and refuted each explanation it was offered. Ultimately, Google stopped the conversation.
“It did seem that this was a problem specific to Google,” the RNC's attorney Michael Columbo said.
Judge Calabretta gently pushed back, saying that nine months was a long time to pursue a conversation.
Thomas McCarthy, another attorney for the RNC, listed the allegations he said built the case. He cited the nine-month conversation with Google that ended in silence and the emails hitting spam folders on a recurring basis in advance of an election. McCarthy also pointed to the lack of any other email service sending the RNC’s emails to spam.
“It’s the whole story,” he said.
Google attorney Michael Huston said his client “vehemently” denies that its email spam filter discriminates. He focused on one of the RNC’s arguments: that the spam emails only occurred on particular days at the end of the month and did so regardless of content.
“I just don’t think that that passes the smell test,” he said of the RNC’s case, also noting Google has no idea when the RNC does its fundraising.
As for the study Calabretta cited, Huston said, out of over 100 accounts examined, only 34 of them were Gmail accounts.
“That’s an exceedingly small sample,” he added. “The statistical utility of that study needs to be taken into account.”
The judge said he will issue a ruling soon. Noting that standing may be a fatal issue for the convention, Calabretta noted that it isn’t Google’s customer here — the end user is.
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