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Political campaign email would get a free pass to your inbox, and not be allowed to be run through spam filters, if new legislation introduced by Republicans in both the U.S. House and Senate is passed. Named the Political BIAS Emails Act of 2022 (BIAS is short for “Bias In Algorithm Sorting”), a/k/a HR 8160 and SB 4409, the new law would require that email receiving systems such as Gmail, Outlook, Yahoo, and all the others, deliver political campaign email directly to your inbox, and they would be expressly forbidden to run it through their spam filters at all. We also include the full text of the proposed law at the end of this article.

While the introductory short heading for the proposed law, which is essentially the same in both the House and the Senate, states that it is just a little law to “prohibit providers of email services from using filtering algorithms to flag emails from political campaigns that consumers have elected to receive as spam”, that “elected to receive” part is a lie. The much more sinister wording of the actual law as it is actually proposed is:

“It shall be unlawful for an operator of an email service to use a filtering algorithm to apply a label to an email sent to an email account from a political campaign unless the owner or user of the account took action to apply such a label.”

Did you catch that switcheroo? Even though the intro heading says it applies only to email that people have elected to receive, the law would actually require Gmail, Hotmail, Outlook, Yahoo, and all other email providers to deliver political campaign email directly to your inbox unless, and only unless, you personally mark it as spam. And we all know how effective marking something as spam can be; you can mark some email as spam until you’re blue in the face and it will still end up in your inbox.

Now, this might not be so bad if political campaigns actually followed best email practices, and only put someone on their mailing list if the person asked to be, or at least gave consent to be, put on the mailing list. But everyone in our industries knows that political campaigns are the worst violators of best practices. Political campaigns buy, sell, and trade mailing lists with reckless abandon, and we do mean “reckless”.

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While some news outlets are starting to pick up this story (read a Washington Post article here, and news radio KSRO reached out to our CEO attorney Anne Mitchell and did a piece on it), for the most part this proposed legislation has been flying under the radar, which means that if people don’t really know about it, it’s much more likely to be passed (we tell you what you can do about that below).

Listen to the KSRO piece with our CEO here:

 

What You Can Do

The bills’ sponsors are Representative Debbie Lesko in the House, and Senators Tim Scott and John Thune in the Senate. In both the House and the Senate the bill has already been referred to committee, the House Committee on Energy and Commerce on the House side, and the Committee on Commerce, Science, and Transportation in the Senate.

Representative Frank Pallone is the Chair of the House committee, and you can see all of the members of the House committee here.

Senator Maria Cantwell is the Chair of the Senate committee, and you can see all of the members of the Senate committee here.

What to Do and Contact Information to Do It

Call (ideally) or at least send a letter (you can send it by email, fax, or USPS) to each of the committee chairs, and each of your own state representatives (House and Senate) and, if you are feeling really ambitious, each of the committee members. But at very least the 2 chairs and your own representatives. Your letter should clearly state how you feel about the proposed legislation, and why, based on facts. Do not rant.

How to do it

Calling

Calling the committee chairs and your representatives to let them know how you feel can often have the most impact. Senate Committee Chair Senator Cantwell’s main office number is 202-224-3441. House Committee Chair Representative Pallone’s main number is 202-225-4671. And if you feel like giving the bill’s sponsors a piece of your mind, Representative Lesko’s main office number is 202-225-4576. Senator Scott’s main office number is 202-224-6121, and Senator Thune’s main office number is 202-224-2321 To find the telephone number of your representatives you can go here for Senators, and here for the House of Representatives.

Email, Fax, or USPS

It used to be that you had to look up each Senator and Representative for yourself, and then go to their website, and fill out a form (or get the mailing address) one at a time. But the website democracy.io has made it incredibly easy to write an email to your representatives. You just put in your name and address and the system looks up all of your representatives for you (Senate and House), and then lets you write an email to them, and then the system delivers it for you.

Democracy.io is a free service provided by the Electronic Frontier Foundation (“EFF”).

NOTE: Please drop us a comment and let us know when you have contacted your reps, and what you said, so that others will be inspired!

Here’s the full text of the proposed legislation, give it a quick read, and then write to your representatives!

Full Text of the Political Bias In Algorithm Sorting
Emails Act of 2022 (the Political BIAS Emails Act of 2022)

117th CONGRESS
  2d Session
                                H. R. 8160

To prohibit providers of email services from using filtering algorithms 
to flag emails from political campaigns that consumers have elected to 
                            receive as spam.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 21, 2022

  Mrs. Lesko (for herself, Mr. McCarthy, Ms. Stefanik, Mr. Emmer, Mr. 
 Scalise, Mr. Bilirakis, Mr. Ferguson, and Mrs. Rodgers of Washington) 
 introduced the following bill; which was referred to the Committee on 
                          Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
To prohibit providers of email services from using filtering algorithms 
to flag emails from political campaigns that consumers have elected to 
                            receive as spam.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Political Bias In Algorithm Sorting 
Emails Act of 2022'' or the ``Political BIAS Emails Act of 2022''.

SEC. 2. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATING TO FILTERING 
              POLITICAL EMAILS THAT A CONSUMER HAS ELECTED TO RECEIVE.

    (a) Conduct Prohibited.--
            (1) In general.--It shall be unlawful for an operator of an 
        email service to use a filtering algorithm to apply a label to 
        an email sent to an email account from a political campaign 
        unless the owner or user of the account took action to apply 
        such a label.
            (2) Effective date.--The prohibition under subsection (1) 
        shall take effect on the date that is 3 months after the date 
        of enactment of this Act.
    (b) Quarterly Transparency Report.--
            (1) In general.--Beginning with the first year that begins 
        on or after the date that is 120 days after the date of 
        enactment of this Act, each operator of an email service shall 
        be required to make publicly available, on a quarterly basis, a 
        transparency report that meets the requirements of this 
        subsection.
            (2) Content of report.--Each quarterly report by an 
        operator of an email service required under this subsection 
        shall include the following:
                    (A) The total number of instances during the 
                previous quarter in which emails from political 
                campaigns were flagged as spam.
                    (B) The number of instances during the previous 
                quarter in which emails from political campaigns were 
                flagged as spam by a filtering algorithm without 
                direction from the email account owner or user.
                    (C) The total number of instances during the 
                previous quarter when emails from political campaigns 
                of candidates belonging to the Republican Party were 
                flagged as spam.
                    (D) The percentage of emails during the previous 
                quarter of the year flagged as spam from political 
                campaigns of candidates belonging to the Republican 
                party.
                    (E) The number of instances during the previous 
                quarter in which emails from political campaigns of 
                candidates belonging to the Republican Party were 
                flagged as spam by a filtering algorithm without 
                direction from the email account owner or user.
                    (F) The percentage of emails during the previous 
                quarter of the year flagged as spam by a filtering 
                algorithm without direction from the email account 
                owner or user for emails from political campaigns of 
                candidates belonging to the Republican Party.
                    (G) The total number of instances during the 
                previous quarter when emails from political campaigns 
                of candidates belonging to the Democratic Party were 
                flagged as spam.
                    (H) The percentage of emails during the previous 
                quarter of the year flagged as spam from political 
                campaigns of candidates belonging to the Democratic 
                party.
                    (I) The number of instances during the previous 
                quarter in which emails from political campaigns of 
                candidates belonging to the Democratic Party were 
                flagged as spam by a filtering algorithm without 
                direction from the email account owner or user.
                    (J) The percentage of emails during the previous 
                quarter of the year flagged as spam by a filtering 
                algorithm without direction from the email account 
                owner or user for emails from political campaigns of 
                candidates belonging to the Democratic party.
                    (K) A descriptive summary of the kinds of tools, 
                practices, actions, and techniques used by an operator 
                of an email service during the previous quarter in 
                determining which emails from political campaigns to 
                flag as spam.
            (3) Publication and format.--The operator of an email 
        service shall publish each quarterly report required under this 
        subsection with an open license, in a machine-readable and open 
        format, and in a location that is easily accessible to 
        consumers.
    (c) Disclosure for Political Campaigns.--
            (1) In general.--Beginning 3 months after the date of the 
        enactment of this Act, each operator of an email service shall 
        be required to disclose to a political campaign, upon the 
        request of the campaign and subject to paragraph (3), a report 
        that includes any of the information described in paragraph (2) 
        that is requested by the campaign.
            (2) Content of the disclosure.--The information described 
        in this paragraph is the following:
                    (A) The number of instances during the previous 
                quarter when emails from the political campaign 
                requesting the information were flagged as spam.
                    (B) The percentage of emails sent from the 
                political campaign requesting the information that were 
                flagged as spam during the previous quarter.
                    (C) The number of instances during the previous 
                calendar quarter when emails from the political 
                campaign requesting the information were flagged as 
                spam by a filtering algorithm.
                    (D) The total number of emails sent from the 
                political campaign requesting the information that 
                reached the intended recipient's primary inbox.
                    (E) The percentage of emails sent from the 
                political campaign requesting the information that 
                reached the intended recipient's primary inbox.
                    (F) A descriptive summary as to why an email from 
                the political campaign requesting the information did 
                not reach the intended recipient's primary inbox.
            (3) Frequency of requests.--A political campaign may not 
        request that an operator of an email service provide a report 
        containing any of the information described in paragraph (2) 
        more than--
                    (A) once per week during election years;
                    (B) twice per month during non-election years; and
                    (C) once a week in the 12 months preceding the date 
                of a special election in which a candidate associated 
                with the political campaign is seeking election.
            (4) Best practices.--An operator of an email service shall 
        provide to a political campaign, upon request, best practices 
        on steps the political campaign should take to increase the 
        number of emails from the political campaign that reach the 
        intended recipient's primary inbox.
            (5) Deadline for providing disclosure to political 
        campaigns.--An operator of an email service that receives a 
        request from a political campaign for a disclosure report 
        described in paragraph (1) or best practices described in 
        paragraph (4) shall provide such report or best practices to 
        the political campaign not later than 4 days after the operator 
        receives the request.
    (d) Enforcement by the Federal Trade Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        subsection (a), (b), or (c) shall be treated as a violation of 
        a rule defining an unfair or a deceptive act or practice under 
        section 18(a)(1)(B) of the Federal Trade Commission Act (15 
        U.S.C. 57a(a)(1)(B)).
            (2) Powers of commission.--
                    (A) In general.--The Federal Trade Commission shall 
                enforce this section in the same manner, by the same 
                means, and with the same jurisdiction, powers, and 
                duties as though all applicable terms and provisions of 
                the Federal Trade Commission Act (15 U.S.C. 41 et seq.) 
                were incorporated into and made a part of this section.
                    (B) Privileges and immunities.--Any person who 
                violates subsection (a) shall be subject to the 
                penalties and entitled to the privileges and immunities 
                provided in the Federal Trade Commission Act (15 U.S.C. 
                41 et seq.).
                    (C) Authority preserved.--Nothing in this section 
                shall be construed to limit the authority of the 
                Federal Trade Commission under any other provision of 
                law.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Filtering algorithm.--The term ``filtering algorithm'' 
        means a computational process, including one derived from 
        algorithmic decision making, machine learning, statistical 
        analysis, or other data processing or artificial intelligence 
        techniques, used by an email service to identify and filter 
        emails sent to an email account.
            (2) Operator.--
                    (A) In general.--The term ``operator'' means any 
                person who operates an email service and includes any 
                person that wholly owns a subsidiary entity that 
                operates an email service.
                    (B) Exclusions.--Such term shall not include any 
                person who operates an email service if such service is 
                wholly owned, controlled, and operated by a person 
                that--
                            (i) for the most recent 6-month period, did 
                        not employ more than 500 employees; and
                            (ii) for the most recent 12-month period, 
                        averaged less than $5,000,000,000 in annual 
                        gross receipts.
            (3) Political campaign.--The term ``political campaign'' 
        includes--
                    (A) an individual who is a candidate (as such term 
                is defined in section 301(2) of the Federal Election 
                Campaign Act of 1971 (52 U.S.C. 30101(2)));
                    (B) an authorized committee (as such term is 
                defined in section 301(6) of such Act);
                    (C) a connected organization (as such term is 
                defined in section 301(7) of such Act);
                    (D) a national committee (as such term is defined 
                in section 301(15) of such Act);
                    (E) a State committee (as such term is defined in 
                section 301(15) of such Act); and
                    (F) a joint fundraising committee that includes any 
                entity described in subparagraphs (A) through (E).
                                 

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One response

  1. This bill stuns me. Nowhere does it indicate how to differentiate campaign e-mail from non-compaign e-mail, let alone the political affiliation of each e-mail. Also, what about the new “Forward” party? The Communist Party? The Tea Party? The Green Party? Or any other political party that might spring up.

    Bad law. Very bad law.

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