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Google gets green light to exempt campaign emails from spam detection

The Federal Election Commission found a proposed pilot program would not violate campaign finance law

(Krisztian Bocsi/Bloomberg News)

The Federal Election Commission on Thursday advised Google that a proposed pilot program allowing political campaigns to evade automated spam detection would not violate federal campaign finance law.

The vote on the six-member body, which is split evenly by party, was four in favor and one against, with one abstention. One Democrat joined the three Republicans in endorsing the plan. Ellen Weintraub, a Democrat, voted instead to advise Google that such a program would represent a prohibited in-kind contribution. Shana Broussard, also a Democrat, abstained.

Bipartisan approval from the regulator clears the way for Google to implement the program, which would disable Gmail’s ordinary spam filters for participating candidates and political committees, leaving individual users to mark unwanted emails manually. The pilot program, for any sender registered with the FEC whose emails do not contain illegal content or other material prohibited by Gmail’s terms of service, is likely to last about six months, although the timing of its implementation was not immediately clear.

“We appreciate the FEC’s speedy review of our request and we will reflect on the positive and negative feedback received during the public comment period,” Google spokesman José Castañeda said. “Our goal during this pilot program is to assess alternative ways of addressing concerns from bulk senders, while giving users clear controls over their inboxes to minimize unwanted email. We will continue to monitor feedback as the pilot rolls out to ensure it is meeting its goals.”

The company sought FEC approval for the program following a pressure campaign waged by Republicans, who accused Google of unfairly filtering its emails. Republican lawmakers and strategists drew on a March study published by researchers at North Carolina State University finding that Gmail sent 77 percent of right-wing candidate emails to spam in 2020, compared with 10 percent of left-wing candidate emails.

Google took issue with the study, saying it relied on a small sample size and old data while not accounting for which candidates had used recommended tools when sending bulk emails. People familiar with company discussions, who spoke on the condition of anonymity because they were not authorized to speak on the record, said Google was being scapegoated by Republican consultants seeking to shift the blame for poor fundraising caused by lists that have grown stale and recipients who have tired of incessant appeals, especially those coming from entities that have rented or purchased email addresses.

Online fundraising by Republicans has fallen off in recent months, declining by about 11 percent in the second quarter of the year, compared with the first, according to federal filings from WinRed, the main portal that processes donations for Republicans.

Google has defended its spam filters, which it says are effective in blocking more than 99.9 percent of spam, phishing and malware, but moved to modify them for political committees, anyway. The advisory opinion approved by the FEC reasoned that the proposed pilot program “would serve Google’s commercial interests in protecting its brand reputation and obtaining valuable data on how to enhance its product.”

The proposed program has not placated Republicans. The National Republican Senatorial Committee, the campaign arm of the Republican caucus, recently asked lawmakers to sign a letter calling the proposed pilot program “unacceptable,” according to a draft obtained by The Washington Post.

“It comes too late and it’s too risky for campaigns,” stated the draft letter, which has yet to be transmitted to Google, according to a person familiar with the matter who spoke on the condition of anonymity to address private communications.

An attorney for Google, Claire Rajan, told commissioners before the Thursday vote that the program was designed for commercial purposes and not to influence an election. And, in response to a question from Sean Cooksey, a Republican commissioner, about the suggestion that the pilot program was “actually being done in response to criticism from members of one political party,” Rajan said Google receives feedback from a range of voices as it pursues “product enhancement.”

Broussard asked whether product enhancement involves considering the perspective of users, thousands of whom wrote to the FEC to object to the proposed pilot program. Commissioners said Google’s request elicited a record number of public comments, almost all of them asking the FEC to turn Google down. Rajan said the comments reflect that “people don’t like spam.”

James Trainor III, a Republican commissioner, seemed to endorse the program as a hedge against claims of bias in Gmail’s existing spam technology. “Is it not the case that by putting this pilot program in place, that Google is actually making a commercial decision to make sure that they are completely unbiased?” he asked. Rajan said the company made the decision to remain unbiased “long ago.”

Weintraub, the lone commissioner who voted to advise against the proposed program, asked Rajan to affirm that Gmail’s current filters treat political emails the same as they treat all other communications, which she did. The Democrat went on to say it raised “alarm bells” that Google would offer a free program only to political committees. “That sounds like the classic definition of an in-kind contribution,” she said.

Her Democratic colleague who approved the draft opinion said she did so reluctantly. “I don’t want to, and it is for the same reasons that all the commenters don’t want to,” said Dara Lindenbaum, vice chair of the FEC, who was sworn in this month. “But I think the law and the commission’s regulations and commission’s precedents permit this. I also don’t want to hamstring innovation and pilot programs.”

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