South Dakota Senator John Thune says legislation he sponsored pushed Google to address alleged bias on its Gmail platform.
Thune and other Republican leaders claim Gmail censors emails from conservative campaigns, sending a disproportionate number of messages to spam folders. In June, Thune sponsored a bill to ban email providers from “applying a label” to campaign emails, unless a user first actively chooses to opt out of a sender's material.
"No major Big Tech company should have the ability to place its thumb on the scales by limiting the content that voters see, especially behind closed doors," Thune wrote for Fox News.
On Aug. 11, the Federal Election Commission gave Google permission test a voluntary solution. The program allows registered campaigns to bypass Google’s spam filter. Under that system, users would receive an opt-out notification each time they receive an email from a new campaign.
“It got their attention,” Thune said about his bill, which effectively excludes any companies smaller than Google.
That carveout creates questions about the legislation's constitutionality according to Santa Clara Law professor Eric Goldman.
“There's not a lot of subtlety to the bill, that this is going to tell Google (and maybe Microsoft) that they need to change their ways,” said Goldman. “The fact that we know that those two companies are being targeted is a pretty good sign that this is a bill that has you running into some potential constitutional limits.”
Goldman argues the Constitution requires legislatures to provide an explicit justification for laws that single out a specific company.
He also says a study commonly cited by Thune and other Republicans doesn’t support the leaders’ assertion that Google demonstrates “censoring practices” against conservatives. That study, released in 2021, found Gmail consistently marked emails from Republican political candidates as spam, while Microsoft Outlook and Yahoo Mail flagged more emails from Democrats.
Earlier this summer, author Muhammad Shahzad said his paper doesn’t support insinuations that Gmail’s spam filter is intentionally biased against conservatives.
“The email political bias bill is predicated on a study that doesn't support the concerns that the sponsors are working on,” Goldman said.
Goldman said the legislation is a “messaging bill” that lacks proper definitions for what qualifies as an “email service.” Even if the bill did pass, he said it wouldn’t adequately address concerns over Google's influence.
“We need to have a high degree of trust that the email services [are] actually respecting our preferences and not trying to game the system,” Goldman said. “If [conservatives] can't trust Gmail, it's not a problem about whether or not political emails are sent to spam or not — they need to get another service all together. That's just not going to work for them, they have to be able to trust their email service.”
Thune, however, sees the bill as important for protecting consumer choice on email platforms. He said its requirements are "perfectly consistent with free market principles."
“One of my core values and principles and politics is personal freedom, coupled with individual responsibility,” Thune said. “Having Google, a big tech company, and an algorithm decide the content that you see goes against both of those principles.”