A telegraph-era statute enacted in 1872 and amended most recently in the 1873 to 1874 range, the relevant text is fairly simple:Įvery one who offers to the public to carry . The first concrete legal claim the RNC makes is that Gmail’s spam detection violates California’s common carrier law. The RNC also invokes a case about California’s net neutrality law but (sensibly) doesn’t make it a part of the claims because its non-discrimination ban applies only to broadband providers, not email services like Gmail. Though the RNC trumpets the Texas social media law, which contains a prohibition on discrimination by email providers, and a case treating Google Search as a common carrier under Ohio law, the lawsuit’s claims focus (almost) exclusively on California law. Indeed, many of the examples that the RNC marshals of “nondiscrimination obligations states like California have enacted” are not actually part of the complaint. Taking each of the statutory schemes in turn, the weaknesses of the RNC’s arguments become clearer. As I argue in a recent paper, the right way to think about these questions is to consider whether a platform fits into the scope of the specific statutory scheme being invoked and whether the discriminatory act the platform is (allegedly) engaging in implicates the specific ban in the statutory scheme. The trouble with the RNC’s pointillistic arguments is that they invoke a bunch of different laws that apply different rules to different kinds of platforms in different contexts. The arguments attempt to paint the RNC’s claims against a legal backdrop that essentially never allows information platforms to discriminate. Court of Appeals for the Fifth Circuit that upheld Texas’s social media anti-deplatforming law, the RNC complaint draws comparisons to regimes prohibiting discrimination in the telegraph and telephone systems, internet service providers, social media platforms, dating and finance applications, and search engines under a wide range of common carriage, public accommodation, and general anti-discrimination laws. Channeling the recent decision by the U.S. Here, though, I want to dig into the legal merits of the RNC’s claims, which I think are dubious. Mike Masnick has a detailed take on the pernicious policy implications of the RNC’s position. In particular, the RNC claims that Google “suspiciously” sends RNC emails to Gmail users’ spam folders at the end of the month, coinciding with fundraising drives.Īs a practical matter, this lawsuit is alarming because it frames email providers as agents not for their users but for the senders of email, limiting or maybe even eliminating the ability for providers to offer spam detection services, which would make email effectively unusable. 21, the Republican National Committee (RNC) filed suit against Google, claiming the internet giant had “unlawfully discriminat against the by throttling its email messages because of the RNC’s political affiliations and views” through the provision of Gmail. The movement has now trained its sights on an unexpected target: Gmail’s spam detection. From repeated calls to repeal Section 230 of the Communications Decency Act to Donald Trump’s executive order attacking Twitter for censorship and subsequent petition from the National Telecommunications and Information Administration to the Federal Communications Commission (FCC) to reinterpret Section 230 to the passage of state anti-deplatforming laws in Florida and Texas that are now on their way to the Supreme Court, the memetic notion of liberal Silicon Valley tech workers secretly intervening to thwart the interests of conservatives has increasingly manifested in legal challenges to alleged discrimination by technology. Over the past decade, concern over Big Tech bias against conservative speech and speakers has dominated the narrative from the right.
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