[00:00:09] Speaker 02: Good morning, your honors. [00:00:10] Speaker 02: May it please the court. [00:00:11] Speaker 02: Connor Woodfin for the Republican National Committee. [00:00:14] Speaker 02: I'd like to reserve 3 minutes for rebuttal. [00:00:18] Speaker 02: As a national committee of one of the major political parties in this country, the RNC relies on email to communicate with its supporters, to turn out voters, and to raise revenue. [00:00:28] Speaker 02: Google knows that. [00:00:30] Speaker 02: But that didn't stop Google from repeatedly suppressing the RNC's campaign efforts in the months leading to the 2022 midterm elections by cyclically diverting political campaign emails to spam folders at the end of each month [00:00:45] Speaker 02: Month after month for nine months, Judge Calabretta held that Google's actions plausibly amounted to intentional political discrimination. [00:00:56] Speaker 02: And he held that Section 230 was no bar to that discrimination. [00:01:01] Speaker 02: Those conclusions were right. [00:01:02] Speaker 02: 230C1 doesn't apply because the complaint doesn't seek to hold Google liable for harmful content that someone else published. [00:01:12] Speaker 02: but rather for Google's own actions in suppressing communications. [00:01:17] Speaker 02: And C2 doesn't apply because a complaint plausibly alleges that Google acted in bad faith in suppressing these emails. [00:01:25] Speaker 01: The district court's ruling that this plausibly pled discrimination is something that we would review de novo, right? [00:01:34] Speaker 01: We're not bound by that as a fact finding because this isn't a stage at which there should be fact finding, correct? [00:01:39] Speaker 02: That's correct. [00:01:40] Speaker 02: It is the Nova review. [00:01:42] Speaker 02: But I would just say that Judge Calabretta went through detailed findings through the complaints allegations. [00:01:48] Speaker 02: And just to highlight a few of those, that point to intentional discrimination. [00:01:54] Speaker 02: It's the timing of these emails. [00:01:56] Speaker 02: It's the persistent lack of a clear reason. [00:01:59] Speaker 02: It's Google's knowledge. [00:02:01] Speaker 02: It's the abrupt end to this months-long suppression, which he called perhaps the strongest allegation. [00:02:07] Speaker 02: It's the fact that no other email carrier did this to the RNC. [00:02:12] Speaker 02: This was not typical spam filter behavior that the RNC was experiencing, but was an unusual outlier phenomenon. [00:02:19] Speaker 02: Google has a history of discriminating against Republicans generally and against Republican organizations like the RNC specifically. [00:02:27] Speaker 01: I think when you say that, you're looking at the study from two years earlier that was about candidates, not parties. [00:02:33] Speaker 01: I'm just trying to figure out, the source of my question is, I'm not sure that you have a comparator. [00:02:39] Speaker 01: You don't have something where it's [00:02:41] Speaker 01: Democratic party that their spam didn't do this. [00:02:47] Speaker 01: You don't seem to have a comparison. [00:02:49] Speaker 01: So usually in discrimination, it's like a similarly situated person was treated better than me. [00:02:55] Speaker 01: But you don't really have that exactly. [00:02:57] Speaker 01: And then also this pattern isn't really exactly the same every month. [00:03:01] Speaker 01: And so it's just a little odd. [00:03:03] Speaker 01: If they really were trying to hurt your emails, it's like, why would you do it this way? [00:03:08] Speaker 01: It's kind of an odd puzzle. [00:03:09] Speaker 02: So I'll take those one by one. [00:03:11] Speaker 02: So first, as far as a comparator, we offer a couple. [00:03:15] Speaker 02: So first is the North Carolina study. [00:03:17] Speaker 02: I think it's you all the way there in that it does show that Google was treating Republican emailers differently than emailers from the Democratic Party, from other political parties. [00:03:29] Speaker 02: So there is your comparator on the left, right spectrum. [00:03:33] Speaker 02: But also, there's another comparator in that Google was the only email service provider that was [00:03:38] Speaker 02: doing this to the RNC. [00:03:39] Speaker 02: So you also have a comparator with respect to Yahoo and Microsoft. [00:03:43] Speaker 01: The Microsoft pattern, though, actually does show something. [00:03:46] Speaker 01: I mean, it's not exactly the same pattern, but Microsoft was blocking a lot of the email. [00:03:50] Speaker 02: So the Microsoft filter was at least behaving as a normal spam filter would. [00:03:55] Speaker 02: It was erratic at some points, but it did not come close to the cyclical diversions that we experienced with Google. [00:04:02] Speaker 02: Google was dropping all the way down to 0% or 1% delivery, and this was happening month after month. [00:04:09] Speaker 02: This also goes back to the conversations that the RNC was having with Google. [00:04:13] Speaker 02: They were stonewalling, canceling meetings, refusing to address this problem, supplying reasons that the RNC consistently rebutted, and still, as Judge Calabretta said, there is a lack of a clear reason to this day, even in litigation, as to why this was happening from Google. [00:04:30] Speaker 01: Is that because it's the motion to dismiss stage though? [00:04:33] Speaker 01: I mean, how would they give us the reason at this point? [00:04:36] Speaker 02: So I think this also goes back to your second question that, you know, [00:04:42] Speaker 02: The fact that this wasn't happening exactly at the end of the month or something, or Google points out, for example, that it wasn't suppressing all of the RNC's emails, so it couldn't be discriminating. [00:04:54] Speaker 02: That's just not a relevant fact in discrimination cases. [00:04:57] Speaker 02: I mean, just take the Harvard case, for example. [00:05:01] Speaker 02: Harvard couldn't avoid a finding of discrimination, even though it was letting some Asian applicants into the school. [00:05:09] Speaker 02: That's not a defense to discrimination. [00:05:12] Speaker 02: So what we're pointing to is the cyclical nature of this. [00:05:16] Speaker 02: And then also, just returning back to what Judge Calabretta called the strongest allegation, this was happening repeatedly for nine months. [00:05:23] Speaker 02: It stopped immediately after we filed this lawsuit. [00:05:26] Speaker 02: That shows that Google has control, that they know what's going on, they knew what they were doing, and that they had an off switch that they could have pressed at any time. [00:05:34] Speaker 02: They were refusing to do it until we filed this lawsuit. [00:05:38] Speaker 02: I would like to go to Pesci's discrimination allegations, Judge Calabretta agreed with us here, to the Unruh Act. [00:05:46] Speaker 02: Because this is where Judge Calabretta started dismissing our claims, was on these legal findings. [00:05:52] Speaker 02: And beginning with the Unruh Act, because Judge Calabretta did agree that we plausibly alleged intentional discrimination, really the only question here is whether the Unruh Act protects political affiliation. [00:06:04] Speaker 00: Before you get to that, isn't the only real threshold question the standing question under the UNRWA Act? [00:06:11] Speaker 00: So my question really relates to whether the RNC has satisfied the heightened standard under the UNRWA Act for statutory standing. [00:06:23] Speaker 02: So we don't think you need to address the statutory standing issue at all. [00:06:28] Speaker 02: That's because Google never raised this below. [00:06:30] Speaker 02: This was an argument that the district court opened suesponte and ruled against us without giving us the opportunity to brief this. [00:06:40] Speaker 02: Google doesn't seriously defend in their red brief. [00:06:44] Speaker 01: In saying that they argued statutory standing below instead they raised the level of generality to saying well We may 12 be six arguments, and this is it we're reviewing de novo the motion to dismiss so you can make the arguments now and We have to figure out if this complaint states a claim, so I'm I'm not sure why that help I mean I understand your objection, but it seems like something that could be Addressed by us if we chose you've now had an opportunity to address this I [00:07:11] Speaker 02: So the court could address this, but the Supreme Court and this court have been clear that a party failing to raise an argument below is just waived. [00:07:21] Speaker 02: And this court, especially courts of appeal as the issues go up, shouldn't be ready to jump into these new arguments because it violates fundamentally the party representation rule. [00:07:34] Speaker 02: The district court put itself in the place of Google rather than in the place of the court in deciding this issue to respond [00:07:41] Speaker 04: Well, there's a distinction between waiver and forfeiture. [00:07:45] Speaker 04: And waiver, we wouldn't be able to reach it if it was forfeited but addressed by the district court anyway. [00:07:52] Speaker 04: And the district court made a ruling on the merits. [00:07:55] Speaker 04: And some would argue we are obligated to address the merits because the district court did, or at least that we have discretion. [00:08:02] Speaker 04: So you'd have to show that Google waived the issue. [00:08:08] Speaker 02: the best case I have on this is United States versus Senate and Smith, which we discuss in our briefs. [00:08:15] Speaker 02: In that case, [00:08:16] Speaker 02: The issue was presented to the District Court in an amicus brief. [00:08:20] Speaker 02: I apologize, to the Court of Appeals in an amicus brief. [00:08:23] Speaker 02: The Supreme Court said, no, that's still not enough, even though the Court of Appeals was presented with the issue and was able to decide it and it was fully briefed. [00:08:32] Speaker 02: It was violating the party representation rule, because that argument wasn't raised by the parties. [00:08:36] Speaker 02: That's the same point we're making here. [00:08:39] Speaker 00: I appreciate that argument, and I totally understand why you're making that argument. [00:08:44] Speaker 00: But let's just put that aside. [00:08:45] Speaker 02: Sure. [00:08:46] Speaker 00: and address substantively the standing question under the UNRWA Act, if you would. [00:08:53] Speaker 02: Right. [00:08:53] Speaker 02: And so the fundamental question under statutory standing for UNRWA is whether the plaintiff has experienced an interaction distinct from merely learning about what the defendant did. [00:09:05] Speaker 02: And here, there's no doubt that's met. [00:09:08] Speaker 02: It's only the RNC who's experiencing these cyclical diversions to the emails. [00:09:14] Speaker 02: It affected the RNC personally in its organizational capacity. [00:09:20] Speaker 02: This was millions of emails to millions of subscribers over the course of nine months. [00:09:25] Speaker 02: That's the basic criteria that satisfies statutory standing. [00:09:30] Speaker 00: How does that then intersect with the California case on Thurston v. Omni hotels? [00:09:38] Speaker 00: which then talks about if you're an online business, you have to show that the plaintiff has visited the website, encountered discriminatory terms, et cetera, et cetera. [00:09:49] Speaker 00: And we don't have the RNC doing that. [00:09:52] Speaker 02: So first, and focus on a unique relationship between the plaintiffs and defendants. [00:09:57] Speaker 02: We do think we've alleged enough facts to show a unique relationship between Google and the RNC here. [00:10:02] Speaker 00: Google relies. [00:10:03] Speaker 00: I understand why you're upset. [00:10:06] Speaker 00: And you have made, I think, a quite elegant statement as to why the RNC would be affected and taken aback by this. [00:10:18] Speaker 00: But then how that fits under the UNRWA Act is a different thing. [00:10:22] Speaker 00: What is the relationship between the RNC and Google and or Gmail? [00:10:30] Speaker 02: So it's fundamentally the relationship between Google as an email provider and bulk emailers. [00:10:36] Speaker 02: So Google relies on these bulk emailers because it relies on its users to submit personal data. [00:10:43] Speaker 02: And that's how Google monetizes its product. [00:10:45] Speaker 02: These bulk emailers. [00:10:48] Speaker 02: send lots of emails, which generate lots of that information. [00:10:52] Speaker 02: And so that's why Google works with these bulk emailers to develop best practices for them, to have meetings with these bulk emailers, organizations like political committees that are sending lots and lots of emails to their subscribers. [00:11:07] Speaker 02: And so that's why Google has an interest between the RNC and between Google [00:11:12] Speaker 02: and making these emails effective for both parties. [00:11:16] Speaker 02: So that's the unique relationship in Thurston. [00:11:20] Speaker 02: Going beyond that, the RNC and Google had numerous conversations, emails back and forth, meetings throughout the course of these nine months. [00:11:29] Speaker 02: We allege that those meetings were unhelpful, that Google was intentionally stonewalling and providing false reasons. [00:11:35] Speaker 02: The RNC was continually rebutting the reasons. [00:11:38] Speaker 02: But all of those meetings, all of those conversations, demonstrate a unique relationship between the parties that satisfies Thurston. [00:11:45] Speaker 02: Going also back to, that gets us past statutory standing, I hope, but getting to the merits of the UNRU claim, whether political affiliation is protected under UNRU. [00:11:55] Speaker 02: Here, the easiest way to resolve this is simply look at the California Supreme Court and the fact that it said, UNRU protects political affiliation three times. [00:12:05] Speaker 02: That's well reasoned dicta that this court has said it's bound to follow. [00:12:09] Speaker 02: And if you want to get deeper into the test under Harris, there's no doubt that political affiliation is a personal characteristic. [00:12:17] Speaker 02: Just like religion, a sex, sexual orientation, or even a person's dress and appearance, those are all personal characteristics. [00:12:23] Speaker 01: Can I just bring you back for a second to the first point, the statutory standing point? [00:12:27] Speaker 01: Because Alcorn versus Anbro says you have to be a client, patron, or customer. [00:12:32] Speaker 01: Do you think that you are a client, patron, or customer, or are you saying it's actually a broader test? [00:12:39] Speaker 02: We're certainly a patron insofar as we're taking advantage of the Gmail service and sending this to Gmail users. [00:12:47] Speaker 02: So I think we check that box there. [00:12:49] Speaker 02: The important issue on statutory standing is that we don't read those cases. [00:12:56] Speaker 02: The obvious satisfaction of statutory standing is a customer or when there's a contract. [00:13:01] Speaker 02: There's no doubt that, which is why those cases are often mentioned. [00:13:04] Speaker 02: You don't have a contract, right? [00:13:05] Speaker 02: There's nothing. [00:13:05] Speaker 02: No, no. [00:13:06] Speaker 02: So we don't have a contract. [00:13:07] Speaker 02: But that's why those cases often mention that. [00:13:10] Speaker 02: But just because they mention contracts doesn't mean it's limited to only contracts. [00:13:15] Speaker 02: We think Thurston demonstrates that. [00:13:17] Speaker 02: There was no contract in Thurston. [00:13:19] Speaker 02: It was a lady who was trying to book a hotel. [00:13:21] Speaker 02: So there was no contract yet. [00:13:23] Speaker 01: The same is true in white there was the idea there I think I mean some of the cases are about trying to be a customer and then facing the discrimination that keeps you from being a customer, but you Are kind of saying you were a customer except you're saying you're not a customer and you didn't you weren't blocked from participating by entirely by this discrimination and [00:13:43] Speaker 02: Well, I would say, again, that just goes back to what it means to state a discrimination claim. [00:13:48] Speaker 02: We don't need to show that we were incapable of sending any emails to show that we were discriminated against. [00:13:54] Speaker 02: We think that's pretty clear under the discrimination. [00:13:56] Speaker 01: But you think just by sending the emails that the actual customers of Google receive, it does seem to be expanding the unreact in some way. [00:14:07] Speaker 02: So the reason it's not expanding, and this is where we go back to White, and the reason the court explained statutory standing and the terms that it did is that it depends on the plaintiff experiencing an interaction that's distinct from merely learning about the defendant's conduct. [00:14:29] Speaker 02: And here, again, there's no doubt that the RNC was experiencing interactions that were unique between the RNC and Google. [00:14:36] Speaker 02: and experiencing harms that were unique between the RNC and Google. [00:14:40] Speaker 02: It was a patron of Google services and so far as it was using... You rely on the word patron. [00:14:47] Speaker 00: You're not a customer. [00:14:49] Speaker 02: We think if you're looking... You're not a customer. [00:14:52] Speaker 02: That's correct. [00:14:52] Speaker 02: Yeah, not a customer. [00:14:53] Speaker 00: There's no account. [00:14:56] Speaker 02: Correct. [00:14:56] Speaker 02: Yeah, no contract. [00:14:57] Speaker 00: So you are a patron. [00:15:00] Speaker 02: We think insofar as you're trying to fit us in a box of one of those three words, patron is what best fits. [00:15:07] Speaker 00: If you could come out of the box, what would be your argument? [00:15:11] Speaker 02: So coming out of the box is just backing up to basic notions of injury, the RNC experience in injury that was proximately caused by Google's conduct. [00:15:20] Speaker 02: We think that's the basic test that White sets out. [00:15:24] Speaker 02: And the RNC is not just a bystander here. [00:15:27] Speaker 02: It was not merely watching Google discriminate against someone else and now seeking court to redress that injury. [00:15:34] Speaker 02: It was experiencing this injury as the RNC, month after month. [00:15:40] Speaker 02: We think those are the basic requirements that get us past statutory stand. [00:15:44] Speaker 04: I think you're relying on the part of White that talked about differential treatment, right, that has to be personally experienced. [00:15:53] Speaker 04: But I think the questions that are being asked are more about [00:15:57] Speaker 04: the nature of the relationship. [00:16:00] Speaker 04: So I think there's, in white, the plaintiff had to show that they intended to be a customer because there was no actual transaction. [00:16:10] Speaker 04: They wanted to differentiate the plaintiff from someone who just is aware of a discriminatory policy. [00:16:20] Speaker 04: But they didn't say it was enough. [00:16:22] Speaker 04: I guess in all the cases cited by white, there was at least [00:16:26] Speaker 04: of a discriminatory policy, then I think there is a whole nother line of cases about, you know, personally experiencing a construction barrier to access. [00:16:39] Speaker 04: There are things where there is no commercial relationship required, just an experience of a barrier to access or discrimination. [00:16:53] Speaker 04: Would that be, I mean, is there [00:16:57] Speaker 04: Is there any other line of cases besides those construction barrier cases where just experiencing some sort of differential treatment, but there is no commercial relationship between the plaintiff and the defendant? [00:17:08] Speaker 02: The distinction those cases are drawing is not so much between whether the person was a customer or, you know, [00:17:18] Speaker 02: some non-customer, I guess. [00:17:20] Speaker 02: The distinction that White is drawing and saying, we're not sure whether the person intended to patronize the hotel, that's more of a causation question. [00:17:32] Speaker 02: Has the person taken affirmative steps to interact with that business? [00:17:37] Speaker 02: So it doesn't necessarily turn on whether the person is a customer or not. [00:17:41] Speaker 02: If a person was in a hotel room, in a hotel lobby, [00:17:47] Speaker 02: necessarily a customer of the hotel, not staying in the hotel, but they were kicked out because of their race. [00:17:53] Speaker 02: There's no doubt that that would satisfy statutory standing under UNRWA. [00:17:56] Speaker 02: So it doesn't turn on whether the person is contracting with the business or providing money or exchanging goods with the business. [00:18:04] Speaker 04: OK, so I appreciate that someone just walks into a free public open area of a hotel and they get kicked out. [00:18:10] Speaker 04: Whether they were a guest or the hotel, it doesn't matter. [00:18:13] Speaker 04: Do you have any case law that says that's how UNRWA would apply in that situation? [00:18:18] Speaker 02: I don't have an example of a case for that. [00:18:21] Speaker 02: We just think it's probably common sense that a hotel couldn't do that under UNRWA, and a person kicked out for that reason would have standing. [00:18:32] Speaker 01: So I have some questions about common carrier. [00:18:35] Speaker 01: We will still give you time for rebuttal, but why don't you just keep answering our questions while we have them. [00:18:39] Speaker 01: So it seems like you acknowledge that spam filtering is OK to do in some way. [00:18:48] Speaker 01: And I'm just really struggling with how that fits with your common carrier theory, both because the terms of service say that Google will do spam filtering, so it's not really promising to carry everyone. [00:19:02] Speaker 01: Also, my additional question, if I can add to, and maybe you can respond in either order, is how would a political theory fit [00:19:12] Speaker 01: with the idea that there can be spam filtering, because it seems like once you start spam filtering, if we allow this political affiliation or political views idea, then everyone who gets filtered could say it's something about their views that is causing them to get filtered. [00:19:24] Speaker 02: Right. [00:19:25] Speaker 02: So I'll do my best to take those one at a time. [00:19:27] Speaker 02: So first with regard to spam, how this fits with common carriers. [00:19:32] Speaker 02: Common carriers have always been able to filter out, so to speak, messages, people, packages that are dangerous, harmful, harassing. [00:19:43] Speaker 02: That is well established in the common carrier law. [00:19:46] Speaker 02: You don't need to deviate from any of those cases. [00:19:49] Speaker 01: The problem about that is that spam is kind of in the eye of the beholder. [00:19:55] Speaker 01: Google has to do some guess about what someone else will even think about whether they want this message or not. [00:20:00] Speaker 01: It's not like everyone understands this package is going to explode. [00:20:03] Speaker 02: I think this probably gets to your second question also. [00:20:07] Speaker 02: That's why it's important that [00:20:11] Speaker 02: We're not asking you to decide what is and isn't spam. [00:20:14] Speaker 02: That's just not an issue presented in this case. [00:20:16] Speaker 02: That's a straw man that Google argues against, but it's not our position. [00:20:21] Speaker 02: But aren't you kind of? [00:20:23] Speaker 01: Because don't you have to sort of plausibly say that you're not spam? [00:20:27] Speaker 01: I mean, there has to be some understanding of what spam is for you to not be spam. [00:20:30] Speaker 02: So what takes care of this for you, at least in this case, is that Google has admitted it has no legitimate business justification for sending these emails to the spam on the basis of the sender's political affiliation. [00:20:43] Speaker 02: So that concession takes you out of, [00:20:46] Speaker 02: any of the decisions about whether this is or is not spam. [00:20:51] Speaker 02: Maybe another good example, this is a secondary 30 case, but malware bites is a good example of this. [00:20:56] Speaker 02: In that case, this court didn't have to go into whether the plaintiff's software was actually malware. [00:21:02] Speaker 02: It was enough that the plaintiff alleged that the real reason that their software was being suppressed was because of anti-competitive animus. [00:21:11] Speaker 02: And so the same is true here. [00:21:13] Speaker 02: It's the political affiliation animus that's motivating Google that takes you out of any sort of issues about determining whether this is or is not. [00:21:22] Speaker 04: So would it be a defense for Google to say to be able to prove our spam filter was just overactive in the [00:21:31] Speaker 04: political affiliation had nothing to do with it. [00:21:34] Speaker 02: So that's a defense. [00:21:37] Speaker 02: We don't think that's a cognizable defense at this stage, because as Judge Calabretta held, we do allege intentional political affiliation discrimination. [00:21:48] Speaker 02: And so it's that allegation that, at least at this stage, gets you past that defense, but later down the road. [00:21:53] Speaker 00: Going back to the common carrier, then. [00:21:55] Speaker 00: Common carrier, you know, you're not a common carrier for all purposes if one is to be a common carrier So that's just sort of a general Proposition that we've had both in fed particularly in federal law So let's just assume that Google is a common carrier for sending and receiving and I'm not saying that it is but were it to be that for sending and receiving I'm still having trouble understanding how Google would be classified as a common carrier and [00:22:23] Speaker 00: with respect to display of the user's email because that's taking it a step differently than one might think of common carriers moving things. [00:22:35] Speaker 02: Right, so we don't think the common carrier analysis really turns on whether these emails are like how they're packaged and how these packets are sent around. [00:22:48] Speaker 02: What matters is that Google offers to carry these emails for the people who sign up and check the box on its terms of service. [00:22:57] Speaker 02: And that's just how people understand email to work. [00:23:01] Speaker 02: When you sign up to use Gmail, you're signing up for a service that allows you to send and receive messages. [00:23:05] Speaker 04: But isn't the spam filter optional for the Gmail user? [00:23:11] Speaker 04: So I mean, it's as if I told the post office, please keep all that junk mail away from me as like an extra service. [00:23:23] Speaker 04: Right, like, I mean, they do deliver all my mail, but if I had the option to say, you know, keep all the grocery mailers away from me, right, and then there was some extra service of sorting them that I chose, but I could also say don't filter them out. [00:23:39] Speaker 02: So that's the problem with Google's conduct here, is it actually doesn't depend on what individual users are checking as spam and not. [00:23:47] Speaker 02: As we alleged in our complaint, everyone receiving these emails is someone who not only has signed up to receive them and wants to receive them, but who has recently and actively engaged with the RNC's emails. [00:23:58] Speaker 04: Well, that's a different question. [00:24:00] Speaker 04: Don't I have the option to just not turn on the spam filter? [00:24:05] Speaker 04: as an individual user. [00:24:08] Speaker 02: I'm not sure whether an individual user can just turn off the spam feature entirely. [00:24:15] Speaker 01: Maybe an easier way to put it, though, is it is there. [00:24:19] Speaker 01: I mean, you can go and look at the spam. [00:24:22] Speaker 01: So they did get the message. [00:24:23] Speaker 01: They just have to go to a different folder to see it. [00:24:26] Speaker 02: Sure, and and you know a common carrier doesn't discharge You know her obligations by delivering the newspaper into the garbage can it's still delivered It's still there But it's more likely that the you know the person who's receiving that newspaper is not going to look at it And it's going to throw it away without ever seeing the message you have to have some relationship between the carrier and the passenger so to speak and That seems to be what's missing here [00:24:53] Speaker 00: It would seem that someone has standing to bring that, for sure. [00:24:59] Speaker 00: And then we would see whether or not it implies. [00:25:03] Speaker 00: But I don't quite understand how the RNC fits in that construct. [00:25:08] Speaker 02: So we think if anyone has standing, it's the RNC, because it's the organization that is suffering the most from Google's conduct. [00:25:18] Speaker 00: Well, that's a different question from whether there's a classification as a common carrier. [00:25:25] Speaker 00: I mean, you might have standing for all kinds of claims, but with respect to the common carrier claim. [00:25:32] Speaker 02: So I guess I view this standing issue, the harm to the RNC, as a separate question of whether Google is a common carrier. [00:25:43] Speaker 02: Perhaps the way they're related is that because Google is a common carrier, it owes a duty to carry messages [00:25:50] Speaker 02: without regard to the person's race, sex, etc. [00:25:54] Speaker 02: And arbitrary, intentional discrimination violates those duties. [00:25:59] Speaker 02: We don't think that's a stretch. [00:26:01] Speaker 02: The real question is whether Google is a common carrier, and we think because Gmail operates inherently as a service designed to carry messages, that's why people sign up to use email. [00:26:10] Speaker 02: That's what makes Google a common carrier. [00:26:16] Speaker 01: We've taken you over your time. [00:26:17] Speaker 01: Yes, thank you. [00:26:18] Speaker 01: OK, we'll give you some time for rebuttal, but let's hear from the other side. [00:26:36] Speaker 03: May it please the court, I'm Michael Houston of Perkins Cooey for Google. [00:26:40] Speaker 03: Gmail's spam filter works by interpreting user signals to predict which emails a particular Gmail user is likely to consider spam. [00:26:51] Speaker 03: Gmail never takes account of a sender's political viewpoint, but the more important point at this stage of the case [00:26:58] Speaker 03: is that as the district court correctly recognized, the RNC is here asking this court to expand the scope of multiple California causes of action in ways that no court ever has before. [00:27:10] Speaker 03: There's no reason for the court to certify the case to the California Supreme Court because although the RNC's claims fail, they fail for multiple independent reasons. [00:27:22] Speaker 03: The RNC's theories of California liability lack any support in precedent. [00:27:27] Speaker 03: the RNC has not identified a single case from California holding that an email platform like Google is a common carrier, that political viewpoint is always and everywhere an arbitrary and invidious classification in California, or that email senders whose messages get filtered to one segment of the Gmail inbox rather than the other have the right to come into a federal court and challenge Google's classification of those messages as spam. [00:27:57] Speaker 03: I think the court should be especially reluctant to embrace those expansions of California law because of their dramatic potential to affect the way in which email service providers provide a tool, spam filtering, that Congress has expressly endorsed and that just about everyone who uses email understands is a valuable public good. [00:28:20] Speaker 03: Some political campaigns and retailers send multiple emails per day in peak season. [00:28:25] Speaker 03: And if this court holds that there is a viable cause of action that allows a sender whose email messages are designated as spam to come to court and say, no, those messages actually were not spam. [00:28:37] Speaker 03: And the only opportunity that Google or any other email service platform is going to have to rebut that allegation is going to be we're going to have to go through discovery. [00:28:45] Speaker 03: We're going to have to get to summary judgment. [00:28:47] Speaker 03: I think the net effect of that is that senders are going to unleash an avalanche of emails [00:28:53] Speaker 03: on users and that is bad for everybody. [00:28:56] Speaker 03: In addition to those problems, the claims here fail under section 230 and they are implausible under the Twombly and Nickball standard because they're refuted by the complaints own allegations in multiple respects. [00:29:10] Speaker 01: Can you start with that? [00:29:12] Speaker 01: With some more detail on that last point, why do you think that the discrimination claim isn't plausible? [00:29:16] Speaker 03: Certainly, Your Honor. [00:29:17] Speaker 03: So again, I think that at this stage of the case, it's just refuted by multiple other allegations in the complaint. [00:29:23] Speaker 03: The theory being that the reason why Gmail sent these messages to spam was exclusively because of the sender's political viewpoints. [00:29:30] Speaker 03: Let me give you just three things. [00:29:32] Speaker 03: I think there are several that are discussed in the brief. [00:29:33] Speaker 03: But three of the most obvious allegations in the complaint that refute that theory. [00:29:38] Speaker 03: The first is the AB test. [00:29:40] Speaker 03: So this in the amended complaint, [00:29:42] Speaker 03: The RNC says, we ran a test to try to figure out what was causing our messages to go to the inbox versus the spam folder. [00:29:50] Speaker 03: And as they describe it, the test there showed that the exact same message, both from the RNC with almost the same content, [00:29:59] Speaker 03: One message went to the inbox, one message went to the spam filter. [00:30:02] Speaker 03: According to the RNC's own allegations, the only difference between those was the kind of information that the one message that went to the spam folder asked for from the user. [00:30:13] Speaker 03: It asked for more personal information like a cell phone user. [00:30:16] Speaker 03: Like a cell phone number, excuse me. [00:30:18] Speaker 03: That allegation powerfully rebuts the idea that the reason why emails go to the inbox or to the spam folder has anything to do with the fact that it's the RNC sending them or anything about the RNC's political viewpoint. [00:30:31] Speaker 03: Because in both messages, one going 100% to spam, one going 100% overwhelmingly to the inbox, [00:30:38] Speaker 01: the political sender is the same the political viewpoint is the same second key point about that sorry maybe correct me if I'm wrong but don't they say though that their emails were not really different at the end of the month and so that that doesn't [00:30:52] Speaker 01: I mean, I'm not sure how that explains the pattern of this end of the month blocking. [00:30:56] Speaker 03: Sure. [00:30:57] Speaker 03: So going to the end of the month specifically, and again, I think it's important to be specific about what the complaint alleges. [00:31:02] Speaker 03: As I think some of your honor's questions indicated to my friend, the RNC has tried to plug this crucial hole in the case of why, if Google is interested in discriminating against the political viewpoint of the RNC, why is it only doing so for one or two days a month? [00:31:19] Speaker 03: The latest theory that the RNC has is, well, those were the days that Google supposedly knew at the end of the month that fundraising is most successful. [00:31:28] Speaker 03: But look at the specific allegations in the complaint. [00:31:31] Speaker 03: In February 22, the dips happened on February 2nd and 3rd and February 20th and 21st. [00:31:37] Speaker 03: In March, it's March 24th. [00:31:39] Speaker 03: But the inboxing rate recovers by March 26th. [00:31:42] Speaker 03: In April, it occurs April 25th, recovers by April 27th. [00:31:46] Speaker 03: And in June, it's on April 28th, recovers by the end of the month. [00:31:50] Speaker 03: Those are, I think, important allegations because in March and June, in addition, those are not only end of months, but end of quarter periods. [00:31:57] Speaker 03: So according to the RNC's own complaint, these dips are not actually happening on the last day of the month. [00:32:04] Speaker 03: Sometimes they're happening in the middle of the month. [00:32:06] Speaker 03: Sometimes they're happening sort of two-thirds of the way through the month. [00:32:10] Speaker 03: It just doesn't, you know, again, I think judicial experience and common sense. [00:32:14] Speaker 03: Step back and look at the specific allegations that the RNC has made that when these dips occurred, [00:32:20] Speaker 03: and ask yourself what can plausibly explain that. [00:32:25] Speaker 03: The thing that can, the obvious alternative explanation other than political viewpoint discrimination is that as Google told the RNC when this was occurring, quote, a lot of Gmail users are marking your messages as spam. [00:32:40] Speaker 03: I think this is the [00:32:41] Speaker 03: The other point to your question, Judge Friedland, about the allegations in the complaint that undermine the plausibility, the RNC's allegation is that throughout the nine months where this problem was occurring, their average spam rate was 0.14%. [00:32:54] Speaker 03: And then I would urge the court to take a look at what Salesforce, the RNC's own vendor that the RNC alleges it relied on to follow best practices, says about that. [00:33:06] Speaker 03: Quote. [00:33:06] Speaker 03: The limit for spam complaints is 0.1% and spam complaints have a lasting negative impact. [00:33:13] Speaker 03: So the obvious alternative explanation according to the complaints own allegations is that the rate at which Gmail users were marking the RNC's messages at spam as spam was 40% higher than what the RNC's own vendor said should be quote the limit. [00:33:32] Speaker 01: So how do we deal with the [00:33:34] Speaker 01: problem that it ended when they filed this lawsuit. [00:33:37] Speaker 03: So Judge Friedland, I think that the other important point that undermines the plausibility of these allegations and which goes directly to that is that the RNC alleges, because it's true, that Google repeatedly worked with the RNC throughout these months in an attempt to solve the problem. [00:33:54] Speaker 03: I would urge the court to take. [00:33:55] Speaker 01: So are you saying that it's just a coincidence? [00:33:57] Speaker 01: I mean, so it kind of cuts both ways. [00:34:00] Speaker 01: If you were really working with them, you knew they were having the problem. [00:34:04] Speaker 01: And yet it didn't stop. [00:34:06] Speaker 01: But then when they filed a lawsuit, it does stop. [00:34:09] Speaker 01: I'm not quite sure what to make of that. [00:34:10] Speaker 01: Is it like you're saying it just happened that when you finally figured it out, it happened to be when the lawsuit was filed? [00:34:16] Speaker 03: I think that the inference that the court can draw from the bare fact that the last time this occurred was allegedly the end of September 2022, and then they filed their lawsuit in October 2022, the most that you can get out of that, given all the other allegations, [00:34:33] Speaker 03: is that Google was trying to work with the RNC to solve this problem and successfully solved it. [00:34:38] Speaker 03: And I just want to focus on one thing for a moment, one allegation in the amended complaint. [00:34:42] Speaker 03: It's not just that we allegedly like sent them some emails with some suggestions for how they might improve it. [00:34:48] Speaker 03: The allegations are that in August of 2022, just about a month and a half before the problem ceased, the RNC, excuse me, [00:34:55] Speaker 03: Google went in person to the RNC to deliver a training on best email practices. [00:35:02] Speaker 03: And again, just ask yourself, have you ever heard of a situation where an entity is engaged in active, intentional discrimination, and yet it's coming to the victim of that discrimination and giving a training on how to improve their practices, which the RNC alleged in their original complaint had, quote, a significantly positive impact on the deliverability of their emails? [00:35:26] Speaker 00: Part of this argument kind of reflects a differing view of the inference from the facts. [00:35:34] Speaker 00: And the question is, we're now at the motion to dismiss stage. [00:35:37] Speaker 00: We're not weighing those facts, or the court is not weighing those facts. [00:35:41] Speaker 00: So how does that play in to what I think is your overall argument that [00:35:46] Speaker 00: The complaint simply hasn't alleged enough to state a claim. [00:35:50] Speaker 03: I think the court should focus on two points, Judge McEwen. [00:35:55] Speaker 03: The first is that, again, the ONC is here alleging a very unusual theory of discrimination. [00:36:02] Speaker 03: Supposedly Google wanted to, you know, [00:36:04] Speaker 03: frustrate the RNC's political viewpoint, but only for one or two days a month. [00:36:09] Speaker 03: That's not the kind of discrimination theory that the court would typically encounter. [00:36:14] Speaker 03: And I think that that comes, if that's going to be the RNC's claim, they have a burden to actually justify why that would make sense. [00:36:22] Speaker 03: Why would Google do that? [00:36:24] Speaker 03: The allegations in the amended complaint about us giving them an active in-person training, [00:36:28] Speaker 03: about the AB test all undermine the plausibility of that claim. [00:36:33] Speaker 03: And then I think the second point is the one that Judge Friedland recognized and pointed out to my friend, which is the absence of any kind of a comparison. [00:36:41] Speaker 03: The RNC has not even alleged that the Democratic National Committee or major Democratic political candidates in 2022 did not experience major drops in their inboxing rate. [00:36:55] Speaker 03: They can't do it. [00:36:58] Speaker 03: They can't do it consistent with rule 11. [00:37:01] Speaker 03: And so that is yet another factor that I think seriously undermines the plausibility of these allegations. [00:37:07] Speaker 03: And then I think just for good measure, the complaints own allegations about the behavior. [00:37:12] Speaker 01: Can I stop you on that for a second? [00:37:14] Speaker 01: Is it reasonable to expect them to? [00:37:16] Speaker 01: I mean, if it's a workplace and you know who the people are who are getting promoted, you know how to compare. [00:37:22] Speaker 01: Would they have the access to the information about the Democratic Party? [00:37:26] Speaker 03: Well, I think, Your Honor, I'm not sure whether they do or they don't, but they're obviously the plaintiff. [00:37:31] Speaker 03: It's their burden to come forward with allegations that plausibly substantiate discrimination. [00:37:36] Speaker 03: And again, I just come back to this is a very, very unusual kind of discrimination. [00:37:41] Speaker 03: This is not like somebody in a workplace who's saying, hey, I was paid less than my male counterparts doing the same work or something like that. [00:37:49] Speaker 03: It's just a very, very strange theory. [00:37:51] Speaker 03: And one of the ways in which I think you can have additional confidence that these allegations are refuted by the amended complaint is the chart describing the behavior of their inboxing rate on another email service platform, MSN, where you see multiple drops of 50 percentage points or more, including, if you look at the end of that chart in the briefing, right before the 2022 election. [00:38:13] Speaker 03: You see a massive drop on that. [00:38:16] Speaker 04: You're focusing, in a way, on the toughest issue for you because of our motion to dismiss standard and how we have to draw all inferences in favor of the plaintiff. [00:38:25] Speaker 04: I would like you to spend a little time on the common carrier issue. [00:38:29] Speaker 03: I'm more than happy to do so, Judge Sung. [00:38:30] Speaker 03: I think that the implications of the common carrier argument are really quite radical. [00:38:37] Speaker 03: I am not aware of any court decision anywhere in the country holding that an email platform is actually a common carrier. [00:38:46] Speaker 03: And I think there are just several elements of why, in fact, I think almost every element of being a common carrier that the RNC fails. [00:38:53] Speaker 03: The first sort of fundamental problem is a common carriage obligation would render all spam filtering unlawful. [00:39:02] Speaker 03: And I think Judge Friedland, you asked my friend about this, I didn't hear any answer that gives me comfort as a lawyer for Google that if Google, if it were held to have a common carrier obligation, [00:39:15] Speaker 03: could engage in spam filtering for the benefit of users. [00:39:19] Speaker 03: Spam filtering obviously is essential to protect email that is illegal or that is, you know, a fraudulent or a malware or something like that. [00:39:28] Speaker 03: But everybody who uses an email inbox knows that that's not the limit of what constitutes spam. [00:39:34] Speaker 03: And just because you signed up, you bought something from a retailer at some point, or you're interested in receiving some emails from a company, doesn't mean that you want that 12th or 20th email that they've sent you this month. [00:39:47] Speaker 03: Gmail users mark those messages as spam when they've just had enough [00:39:53] Speaker 03: of this particular sender. [00:39:55] Speaker 03: And that is, as the Gmail program policy is specified, incorporated by reference into complaint, that user input saying, I just want to see fewer of these emails coming from this sender is the most important factor that the algorithm uses to sort messages. [00:40:13] Speaker 03: So. [00:40:14] Speaker 00: I want to separate then the user and the sender, if I may, in this common carrier argument. [00:40:21] Speaker 00: You're now talking about the user being able to check boxes to basically disaggregate and to have personalization of your spam, if you will. [00:40:37] Speaker 00: So under Google's terms and conditions, what is the obligation that Google has [00:40:51] Speaker 00: to actually deliver email that is sent? [00:40:57] Speaker 03: Well, I think I would say two things about that, Judge McEwen. [00:41:00] Speaker 03: The first is that the Gmail terms of service are quite clear that the way in which we are going to present your emails to you is sort of fundamentally inconsistent with what a common carrier would have to do. [00:41:11] Speaker 03: A common carriage regime is a situation where you deliver everything generally and indiscriminately. [00:41:17] Speaker 03: Google says exactly the opposite. [00:41:19] Speaker 03: promise to deliver all email that comes in generally and indiscriminately, quite the contrary. [00:41:24] Speaker 03: We say we are going to use algorithmic tools to sort out messages that are considered to be spam. [00:41:31] Speaker 03: We're going to make a prediction about what you want to see in your inbox. [00:41:36] Speaker 03: And on the basis of that prediction, we're going to deliver some of your messages to the inbox, some of them to the spam folder. [00:41:44] Speaker 00: So I think that's the receiver. [00:41:47] Speaker 00: of the messages. [00:41:48] Speaker 00: So now let's talk about the sender of messages. [00:41:51] Speaker 00: What's Google's relationship to the sender of messages? [00:41:55] Speaker 03: Your honor, as a matter of law, there isn't one. [00:41:59] Speaker 03: And this is, I think, there isn't just no relationship whatsoever. [00:42:02] Speaker 03: This is, I think, yet another fundamental problem with the idea that there could be a common carriage regime. [00:42:07] Speaker 03: It's well set out in the law that common carrier duties run to customers. [00:42:13] Speaker 03: The RNC is not Google's customer. [00:42:16] Speaker 03: They don't, as the court heard this morning, [00:42:20] Speaker 03: The RNC doesn't sign up for an account with us. [00:42:23] Speaker 03: We don't have any kind of contract with them. [00:42:25] Speaker 03: Does Google want to see the RNC able to deliver its messages successfully? [00:42:32] Speaker 03: Yes, because we want our users to have a positive experience. [00:42:35] Speaker 03: So that's why I think Google works with the RNC to say, here's how we can give you and all others. [00:42:41] Speaker 00: The bottom line is there is no relationship, legal, between Google and the RNC. [00:42:48] Speaker 00: That's correct, Your Honor. [00:42:50] Speaker 03: There is no relationship, and the RNC has identified no case that even comes close, I think, to holding that this kind of, you know, the relationship between Gmail and the senders of email could give rise to the kind of customer relationship that would be necessary to establish a common carrier duty. [00:43:09] Speaker 01: Could you respond to the UNRWA Act [00:43:11] Speaker 01: hypothetical about the hotel lobby and someone kicked out because of race. [00:43:15] Speaker 03: So your honor I think I come yes I'm happy to do so the Thurston case which your honor mentioned refers to a person who either is a customer or has a bona fide intention to become a customer. [00:43:27] Speaker 03: I think somebody who comes into a hotel lobby and says I'm here to you know use the coffee shop or I'm here I might be checking in here I want to you know have a drink at the bar [00:43:36] Speaker 03: That person absolutely is intending, has a bonafide intention to become a customer. [00:43:41] Speaker 03: I agree that under California law that person could not be thrown out solely because of their race. [00:43:46] Speaker 03: But they're kind of just- What if they're waiting for a friend who's staying at the hotel? [00:43:52] Speaker 03: I'm not sure, Your Honor, if they say it is mine, if they disclaim any intention to have a relationship with the business. [00:44:02] Speaker 03: I don't know, honestly. [00:44:03] Speaker 03: I think it's murky under California law, but it just goes back to the fact that the RNC hasn't identified cases that clearly substantiate the recognition of a customer relationship in that situation. [00:44:14] Speaker 03: And certainly, [00:44:15] Speaker 03: I think we have to hesitate about taking analogies from the physical world and importing them directly into the digital world. [00:44:22] Speaker 03: I don't think that the RNC is alleged to just be a friend of a Gmail user who is, as we know from the complaints and allegations, Gmail users are routinely marking RNC emails as spam at a rate that significantly exceeds what should be considered the limit. [00:44:41] Speaker 03: So when I look at this complaint, I see [00:44:44] Speaker 03: Google attempting to put itself into, I think they disclaim being a customer today. [00:44:49] Speaker 01: What about this idea that they're a patron? [00:44:52] Speaker 03: It's a strange conception of patron in my view to say that the RNC is Google's [00:45:01] Speaker 03: patron. [00:45:03] Speaker 03: If you look at the dictionary definition of patron, which I don't have in front of me, but certainly that's not what I think of as somebody's patron. [00:45:10] Speaker 03: I think Google provides Gmail as a benefit for its users. [00:45:15] Speaker 03: And so everything that Google does exists so that Gmail users will have a more satisfying email experience, including both [00:45:23] Speaker 03: the provision of the spam filter, including the ability of users to designate messages that they want to receive or that they would prefer to receive fewer of. [00:45:33] Speaker 00: So you're obviously exceeding your time, but then we also were generous with the RNC, and I'm sure it will all balance out in the end. [00:45:42] Speaker 00: I don't want you to leave before [00:45:45] Speaker 00: you address Section 230, and particularly C2A with respect to the plausibility of an alleged discrimination. [00:45:55] Speaker 00: So does the applicability of that section of Section 230 depend on whether there's a plausible discrimination allegation? [00:46:06] Speaker 03: I don't think it entirely depends on that, Your Honor, in this respect. [00:46:11] Speaker 03: When the court is applying C2A, as the Ninth Circuit's precedents reflect, this is an immunity provision. [00:46:18] Speaker 03: Congress wanted to provide not just an immunity from ultimate liability, but immunity from suit. [00:46:23] Speaker 03: That's roommates.com. [00:46:25] Speaker 03: When you have a statutory provision like C2A that clearly exists in order to immunize things like spam filtering, so long as it's done in good faith, [00:46:36] Speaker 03: I think that just means that where we're talking about an immunity provision, I think it means that the RNC has an especially heavy burden to plead to overcome good faith. [00:46:46] Speaker 03: It can't just be that they get to come into court and say, yes, our messages were marked as spam, but they didn't actually constitute spam, and so it was done in bad faith. [00:46:55] Speaker 03: If that were enough, then everybody who has their messages filtered and sent to spam would be able to plead that cause of action, and Section 230 would be effectively rendered useless. [00:47:06] Speaker 01: Sorry, I'm trying to understand your answer. [00:47:08] Speaker 01: Are you saying that discrimination on political terms [00:47:12] Speaker 03: Would be bad faith, but they need a heightened pleading standard like we have for fraud No, no, I think i'm what i'm saying is I think i'm trying to make two different points here and I think in the first instance I just think that where you're applying an immunity provision and a good faith requirement The rnc sort of bears a heavy burden to owe to plead allegations that plausibly establish the absence of good faith We've spent obviously time this morning. [00:47:36] Speaker 01: Okay. [00:47:36] Speaker 01: Let's say they have [00:47:37] Speaker 01: They do have the comparison. [00:47:39] Speaker 01: They have the two parties. [00:47:40] Speaker 01: They're worse. [00:47:40] Speaker 01: They have everything that you say they don't have. [00:47:42] Speaker 01: Would that then defeat your immunity under C2A? [00:47:46] Speaker 01: No, it wouldn't. [00:47:47] Speaker 01: This is the second part of my answer. [00:47:48] Speaker 00: But before you go to the second part, you've talked about this heightened pleading standard. [00:47:53] Speaker 00: And what's the basis for that under C2A? [00:47:58] Speaker 03: the fact that it's an immunity provision, Your Honor. [00:48:00] Speaker 00: So simply because of the nature of immunity from suit? [00:48:02] Speaker 03: Yes, because it's an immunity from suit. [00:48:05] Speaker 03: Yes, that's my answer to that. [00:48:07] Speaker 03: And then I think to your question, Judge Freeland, it's simply not true that no business has a business justification [00:48:16] Speaker 03: for taking account of political viewpoint. [00:48:18] Speaker 03: Now we don't, as we've said throughout the case, Gmail does not operate by taking account of a sender's political viewpoint. [00:48:25] Speaker 03: But if you're going to recognize a cause of action that would allow, you know, senders of email to come in and leverage and make that objection and say we should be able to get discovery into why Google or MSN designated our messages as spam, [00:48:40] Speaker 03: I think that's going to have really drastic implications for the volume of spam email that gets sent out. [00:48:47] Speaker 03: And I think that we certainly do have a very strong business. [00:48:51] Speaker 01: What would good faith be then? [00:48:52] Speaker 01: I mean, are you saying that a political view could never have anything to do with the good faith analysis? [00:48:57] Speaker 03: On the contrary, Your Honor, I think there are certain instances where it could, hypothetically. [00:49:03] Speaker 03: I think that it would be reasonable for an email platform to say, we have internalized our users' preferences. [00:49:09] Speaker 03: We note that this particular user, it sure looks like the emails they're most interested in receiving come from the RNC and President Trump and Republican candidates. [00:49:18] Speaker 03: And on that basis, we're going to make an inference [00:49:22] Speaker 03: But messages sent by Congresswoman Ocasio-Cortez, probably this user considers spam. [00:49:28] Speaker 03: Now, I just want to be clear. [00:49:29] Speaker 03: Google doesn't work that way. [00:49:31] Speaker 03: But hypothetically, it would be perfectly reasonable, I think, for an email platform to say, we're interested in that. [00:49:39] Speaker 03: We want to take account of a sender's political viewpoint, because we think that's relevant to what our user wants to see. [00:49:45] Speaker 03: And that just reinforces, I think, the fundamental problem with expanding California law to recognize this new theory of liability that would allow anybody to come in and say, well, although you filtered my email, you did it in bad faith. [00:49:58] Speaker 04: If I understand you correctly, you're essentially saying the spam filter is a service you provide to a Gmail account holder. [00:50:07] Speaker 04: If they choose to use Gmail as their [00:50:10] Speaker 04: email service, and they, I mean, in theory, they could choose if they wanted a more, a political filter. [00:50:16] Speaker 04: Let's say someone could advertise and say, we'll filter your emails this way, and the customer could just choose that filter, and then that should be okay. [00:50:29] Speaker 04: If the customer themselves is saying, please filter all these emails from my account. [00:50:35] Speaker 03: Yes, I agree with that Judge Song. [00:50:36] Speaker 03: I think absolutely your fundamental point is a spot on. [00:50:40] Speaker 03: The spam filter is a service that Gmail provides for the benefit of users and as the documents that are incorporated by reference into the amended complaint reflect [00:50:50] Speaker 03: The signals that the Gmail algorithm bases its filtering decisions on come from users, whether they mark messages as spam or whether they say, I prefer to receive these messages, I want them added to my, I never want messages coming from a particular sender to be received as spam. [00:51:08] Speaker 03: Those are the most important signals that the filter uses. [00:51:12] Speaker 00: So let me just understand, you're saying that the algorithm is essentially trained on user's preferences? [00:51:18] Speaker 03: Yes, I think that's correct. [00:51:21] Speaker 03: I mean, it's obviously trained on other things, too. [00:51:24] Speaker 03: But the most important signal that the algorithm uses to make a predictive judgment about whether you in your inbox want to see a particular message in your inbox or in your spam filter are the signals that you as a user have sent to Gmail about other messages. [00:51:42] Speaker 00: But does that then extend more broadly to the broader [00:51:49] Speaker 00: spam filter algorithm? [00:51:51] Speaker 00: Not just a single user, but the amalgamation of users. [00:51:55] Speaker 03: Yes. [00:51:56] Speaker 03: Of course, the algorithm takes account of signals from many millions of Gmail users. [00:52:01] Speaker 00: So let's say millions of users say, I don't want any of these DNC or DNC-related emails to come to my account. [00:52:14] Speaker 00: And 90% of the Gmail users said, [00:52:18] Speaker 00: no more of these democratic emails basically trashing up my account, then you're saying that the algorithm as a whole would possibly literally block [00:52:32] Speaker 00: All of these. [00:52:33] Speaker 03: I don't want to go that far. [00:52:34] Speaker 00: Potentially could. [00:52:36] Speaker 03: Even then, I think, even then, in the case of users of Gmail who do want to receive those emails and have signaled to Gmail, maybe I'm in the minority in the hypothetical, but I would like to receive emails from the Democratic National Committee. [00:52:50] Speaker 03: The algorithm is going to treat that as the most important preference. [00:52:53] Speaker 00: I'm trying to distinguish between customer preference [00:52:58] Speaker 00: But of course, Google's implementation of customer preference and where political discrimination may or may not come in there. [00:53:07] Speaker 03: I understand that inquiry, Judge McKeown. [00:53:12] Speaker 03: But what I come back to is it means that if Gmail did this wrong, if Gmail is getting it wrong by hypothesis, [00:53:20] Speaker 03: The person who is harmed by it is the email user who says, I actually wanted to receive those messages, and you didn't deliver them to me. [00:53:28] Speaker 03: And I think that just highlights another sort of glaring defect in the RNC's complaint, which is there are no Gmail users here. [00:53:34] Speaker 03: Nobody is here claiming, I would have donated to the RNC at the end of the month or at the end of the quarter if only this email had gone to my inbox rather than my spam folder. [00:53:45] Speaker 03: So again, this is not just like take my word from it. [00:53:49] Speaker 03: It comes out of the allegations in the amended complaint and the Gmail terms of service and program policies that are incorporated by reference. [00:53:57] Speaker 03: We tell users, we tell senders, we tell everybody that the way that the filter works is by analyzing user preferences about which emails they want to receive. [00:54:07] Speaker 00: And when you're saying you tell senders, but you just told me you don't have any relationship with senders. [00:54:12] Speaker 03: We don't have a legal relationship with them. [00:54:14] Speaker 03: That's right, Your Honor. [00:54:15] Speaker 03: But again, we want the RNC and every other sender to be able to get messages into the hands of the users who want to receive them. [00:54:25] Speaker 03: I think it would be very strange if our efforts to try to work with the RNC to give them advice about how to do email sending best practices were held to actually be the thing [00:54:37] Speaker 03: that creates a relationship, creates statutory standing under UNRWA. [00:54:43] Speaker 03: To me, that would suggest we had an interest in not giving that kind of advice, and I don't see how that's good for anybody. [00:54:49] Speaker 04: If I understand you correctly, you're essentially saying we have this customer base of millions of people who've picked Gmail to be their email provider. [00:55:02] Speaker 04: And then you as, say, to the world generally, if you want to reach our customers, here's what you have to do. [00:55:13] Speaker 03: I think that's basically accurate, Judge Son. [00:55:16] Speaker 03: Yes, I think that's a characterization. [00:55:18] Speaker 03: And I would just say the ability to have that filtering is [00:55:23] Speaker 03: essential to everybody who has an email inbox because everybody is familiar with the experience of signing up for something one time or buying something one time and then being a little sick of the volume of the solicitations that they sent you. [00:55:37] Speaker 03: That's what the spam rate reflects here. [00:55:39] Speaker 01: I think I should cut you off because we've taken you way over your time. [00:55:42] Speaker 01: Thank you for the helpful argument. [00:55:43] Speaker 01: Let's put three minutes on the clock for rebuttal please. [00:55:52] Speaker 02: Thank you, Your Honors. [00:55:53] Speaker 02: I appreciate the time. [00:55:54] Speaker 02: Just a few points on rebuttal. [00:55:56] Speaker 02: Beginning with the unreact, courts have been clear that unreact is broad. [00:56:01] Speaker 02: Statutory standing under the unreact is broad. [00:56:04] Speaker 02: The California courts have been consistent about this. [00:56:07] Speaker 02: And before I move on, I would like to briefly address certification, noting that the court was interested in that. [00:56:13] Speaker 02: For our part, [00:56:15] Speaker 02: We think that UNREACT, if the court were to certify, would be the best candidate for that, both on whether political affiliation without a business justification is covered and on the statutory standing issue. [00:56:27] Speaker 02: We think California law is clear enough and the well-reasoned dicta is clear enough that you don't need to certify. [00:56:33] Speaker 02: But for our part, the UNREACT would be probably the best candidate for certification. [00:56:37] Speaker 00: You're not necessarily advocating that. [00:56:39] Speaker 02: No, and that's because we rest on their arguments in our briefs, and we do think that California state law is clear enough. [00:56:48] Speaker 02: Going back to the standing issue, my friend on the other side says that at least some of these standing issues under UNRU are murky under California law. [00:56:56] Speaker 02: So we've given you now three reasons [00:56:59] Speaker 02: to rule in our favor on at least statutory standing under Unruh. [00:57:03] Speaker 02: One is that Google waives this, never waives the argument in the district court. [00:57:06] Speaker 02: Two is we think the law is clear enough. [00:57:09] Speaker 02: We do have statutory standing under the act. [00:57:11] Speaker 02: And three is we think it's at least murky enough, as Google seems to acknowledge, that at a minimum you would probably have to certify this to the California Supreme Court. [00:57:21] Speaker 02: Moving on to your- Let me just ask a question there. [00:57:25] Speaker 00: Presumably, though, if we were to certify to the California Supreme Court, [00:57:29] Speaker 00: We would want to reach the Section 230 claim, correct? [00:57:35] Speaker 00: Because California Supreme Court, if it received a certification, would be kind of shaking its head. [00:57:40] Speaker 00: But what if there was immunity? [00:57:42] Speaker 00: What are you asking me to do here? [00:57:43] Speaker 00: I realize if there's not immunity, then I might need to certify it. [00:57:49] Speaker 00: But what's your position on sequencing? [00:57:55] Speaker 00: Were we to certify the California Supreme Court? [00:57:57] Speaker 02: That's probably fair. [00:57:59] Speaker 02: I don't know that it's necessary to reach 230, but I understand as a matter of judicial efficiency that that might be the best course of action, reach 230 and then certify any uncertainty under state law. [00:58:11] Speaker 02: On 230, I would just note that Malwarebytes does not set a heightened pleading standard for bad faith. [00:58:17] Speaker 02: The case is very clear about that. [00:58:19] Speaker 02: And then finally, just to address these arguments on plausible alternatives, we don't need to show you what the DNC was doing with its emails. [00:58:27] Speaker 02: My friend on the other side says this is not the usual kind of discrimination, but this is exactly the kind of discrimination outlined in the North Carolina study and in recent congressional reports that came out just a couple weeks ago about Google suppressing conservative content. [00:58:43] Speaker 02: The bottom line is that Judge Calabretta's opinion cuts through all of those plausible alternatives. [00:58:50] Speaker 02: He says on, this is on page 10 of the record, that overall while there may be technical reasons to account for the abrupt end, [00:58:57] Speaker 01: Sorry, can I ask a question about the colloquy about this users so on this hypothetical of like Most users say they don't want the Democratic Party's emails and so then the algorithm picks that up and thinks that these are spam If it was that so I mean Just maybe we're getting ahead of ourselves But if it's the algorithm is somehow just picking up popularity and the whatever the popularity analysis happens to have hurt [00:59:27] Speaker 01: your client. [00:59:29] Speaker 01: Is that discrimination? [00:59:30] Speaker 02: So two points on this. [00:59:33] Speaker 02: One, still yes, because Google's still responsible for the algorithm. [00:59:37] Speaker 02: It can't just hide behind the fact that it's some computer that's doing this and not Google who controls whatever is doing this. [00:59:45] Speaker 02: But second, and this is more fundamental, that just fights the allegations in the complaint. [00:59:50] Speaker 02: we alleged that the customer complaints were low, that this was not a spam rate issue. [00:59:56] Speaker 02: We went back and forth with this with Google for months. [00:59:58] Speaker 02: We rebutted every one of those allegations. [01:00:01] Speaker 01: I guess the question is, though, is that the relevant allegation? [01:00:04] Speaker 01: I mean, if the algorithm is training on the whole Gmail user base, then whether the people who had these filtered were, I mean, [01:00:17] Speaker 01: You may say these people wanted it, but somehow it got filtered because of what other people thought or something. [01:00:22] Speaker 01: Isn't that kind of what maybe they're saying? [01:00:25] Speaker 02: So I take it that that's what Google is arguing. [01:00:29] Speaker 02: Even if that is a reasonable explanation for what's going on, it doesn't defeat the plausible inference of discrimination that arises from the facts we've alleged in the complaint. [01:00:39] Speaker 02: And that's Judge Calabretta's basic point, that while there may be other technical reasons to account for the abrupt end to this month's long inboxing pattern, the timing and the lack of a clear reason for the monthly diversions [01:00:53] Speaker 02: means that our allegations at Google acted without good faith. [01:00:58] Speaker 01: What you envision when you have that allegation is that like some person at Google typed in filter extra these days. [01:01:06] Speaker 01: That's what you mean by the intentional discrimination. [01:01:09] Speaker 02: So we think the abrupt end is the best indication that [01:01:13] Speaker 02: there was a binary choice by Google to stop this from happening. [01:01:18] Speaker 02: That this isn't just some algorithm running wild. [01:01:22] Speaker 02: Google has control over what's going on, and it was able to stop. [01:01:25] Speaker 01: And that was something like never mark RNC spam that they did once you filed suit in your review. [01:01:31] Speaker 02: So we don't know what the command prompt is that caused this to stop. [01:01:36] Speaker 02: We just know it did stop. [01:01:37] Speaker 02: Google was behind it. [01:01:39] Speaker 02: It's in control. [01:01:40] Speaker 02: That's enough to show intent as Judge Calabrese. [01:01:45] Speaker 04: The inference has to be not only did they figure out how to stop it, but they knew all along. [01:01:50] Speaker 04: They knew how to stop it before, and they intentionally chose not to. [01:01:53] Speaker 04: And then when you filed suit, then they chose to. [01:01:59] Speaker 04: Any other scenario, it could be a defense. [01:02:01] Speaker 04: As a factual matter, I understand you're saying on the pleadings, we can't resolve those factual disputes. [01:02:07] Speaker 04: But if it went past this and Google somehow showed, it's just that we figured it out. [01:02:14] Speaker 04: The inference you're asking us to draw could be disproven if there was a factual trial down the road. [01:02:25] Speaker 02: That's exactly right. [01:02:26] Speaker 02: We're not proving discrimination. [01:02:27] Speaker 02: We're alleging it. [01:02:30] Speaker 01: Thank you both sides for the helpful arguments in this complicated case. [01:02:33] Speaker 01: This case is submitted.