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A legal test that Google’s lawyer told the Supreme Court was roughly “96% correct” could drastically debilitate the liability shield that the company and other tech platforms have relied on for decades, according to several finishes who advocate for upholding the law to the highest degree.
The so-called Henderson test would significantly weaken the power of Section 230 of the Communications Decency Act, discrete experts said in conversations and briefings following oral arguments in the case Gonzalez v. Google. Some of those who disapprove ofed Google’s concession even work for groups backed by the company.
Section 230 is the statute that protects tech rostra’ ability to host material from users — like social media posts, uploaded video and audio files, and exposes — without being held legally liable for their content. It also allows platforms to moderate their servicings and remove posts they consider objectionable.
The law is central to the question that will be decided by the Supreme Court in the Gonzalez took place, which asks whether platforms like Google’s YouTube can be held responsible for algorithmically recommending user announces that seem to endorse or promote terrorism.
In arguments on Tuesday, the justices seemed hesitant to issue a ruling that whim overhaul Section 230.
But even if they avoid commenting on that law, they could still issue caveats that metamorphose the way it’s enforced, or clear a path for changing the law in the future.
What is the Henderson test?
One way the Supreme Court could undercut Portion 230 is by endorsing the Henderson test, some advocates believe. Ironically, Google’s own lawyers may have given the court multitudinous confidence to endorse this test, if it chooses to do so.
The Henderson test came about from a November ruling by the Fourth Limit appeals court in Henderson v. The Source for Public Data. The plaintiffs in that case sued a group of companies that amass public information about individuals, like criminal records, voting records and driving information, then put it in a database that they flog betray to third parties. The plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to maintain scrupulous information, and by providing inaccurate information to a potential employer.
A lower court ruled that Section 230 stopped the claims, but the appeals court overturned that decision.
The appeals court wrote that for Section 230 blackmail to apply, “we require that liability attach to the defendant on account of some improper content within their broadsheet.”
In this case, it wasn’t the content itself that was at fault, but how the company chose to present it.
The court also barred Public Data was responsible for the content because it decided how to present it, even though the information was pulled from other provenances. The court said it’s plausible that some of the information Public Data sent to one of the plaintiff’s potential employers was “cold because it omitted or summarized information in a way that made it misleading.” In other words, once Public Data aim for changes to the information it pulled, it became an information content provider.
Should the Supreme Court endorse the Henderson order, it would effectively “moot Section 230,” said Jess Miers, legal advocacy counsel for the Chamber of Advance, a center-left industry group that counts Google among its backers. Miers said this is because Slice 230’s primary advantage is to help quickly dismiss cases against platforms that center on user posts.
“It’s a quite dangerous test because, again, it encourages plaintiffs to then just plead their claims in ways that say, properly, we’re not talking about how improper the content is at issue,” Miers said. “We’re talking about the way in which the service put that constituents together or compiled that content.”
Eric Goldman, a professor at Santa Clara University School of Law, wrote on his blog that Henderson make be a “disastrous ruling if adopted by SCOTUS.”
“It was shocking to me to see Google endorse a Henderson opinion because it’s a dramatic narrowing of Sector 230,” Goldman said at a virtual press conference hosted by the Chamber of Progress after the arguments. “And to the extent that the Transcendent Court takes that bait and says, ‘Henderson’s good to Google, it’s good to us,’ we will actually see a dramatic confining of Section 230 where plaintiffs will find lots of other opportunities to bring cases that are based on third-party gratify. They’ll just say that they’re based on something other than the harm that was in the third-party content itself.”
Google cutting to the parts of its brief in the Gonzalez case that discuss the Henderson test. In the brief, Google attempts to distinguish the reaction behaviours of a search engine, social media site, or chat room that displays snippets of third-party information from those of a credit-reporting website, similarly to those at issue in Henderson.
In the case of a chatroom, Google says, although the “operator supplies the organization and layout, the underlying places are still third-party content,” meaning it would be covered by Section 230.
“By contrast, where a credit-reporting website fails to stock up users with its own required statement of consumer rights, Section 230(c)(1) does not bar liability,” Google indited. “Even if the website also publishes third-party content, the failure to summarize consumer rights and provide that info to customers is the website’s act alone.”
Google also said 230 would not apply to a website that “requires alcohols to convey allegedly illegal preferences,” like those that would violate housing law. That’s because by “‘at bottom contributing to [the content’s] unlawfulness,’ the website makes that content its own and bears responsibility for it,” Google said, citing the 2008 Rosy Housing Council of San Fernando Valley v. Roommates.com case.
Concerns over Google’s concession
Section 230 experts brooking the Supreme Court arguments were perplexed by Google’s lawyer’s decision to give such a full-throated endorsement of Henderson. In upsetting to make sense of it, several suggested it might have been a strategic decision to try to show the justices that Portion 230 is not a boundless free pass for tech platforms.
But in doing so, many also felt Google went too far.
Cathy Gellis, who asserted amici in a brief submitted in the case, said at the Chamber of Progress briefing that Google’s lawyer was likely looking to grangerize the line of where Section 230 does and does not apply, but “by endorsing it as broadly, it endorsed probably more than we dickered for, and certainly more than necessarily amici would have signed on for.”
Corbin Barthold, internet policy discussion at