US Supreme Court against a blue sky in Washington, DC, USA. Photographer: Stefani Reynolds/Bloomberg
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That is the legal test Google The lawyer said the Supreme Court was roughly “96 percent right” could drastically undermine the liability protections the company and other tech platforms have relied on for decades, according to several experts who advocate for the law to be followed to the fullest extent.
The so-called “Henderson test” would significantly weaken the force of § 230 of the Communications Decency Act, several experts said in interviews and briefings after oral arguments in the case. Gonzalez v. Google. Some of those who criticized Google’s concession even work for groups supported by the company.
Section 230 is a law that protects the ability of technology platforms to host material from users — such as social media posts, uploaded video and audio files, and comments — without being legally responsible for their content. It also allows platforms to moderate their services and remove posts they deem inappropriate.
The law is central to the question the Supreme Court will decide in the Gonzalez case, which asks whether platforms like Google YouTube may be responsible for algorithmically recommending user posts that appear to support or promote terrorism.
In arguments on Tuesday, Justice seemed hesitant issue a decision that would revise Section 230.
But even if they avoid commenting on that law, they can still issue notices that change how it’s enforced, or clear the way for a change in the law in the future.
What is Henderson’s test?
One way the Supreme Court could undermine Section 230 is by adopting the Henderson test, some advocates believe. Ironically, Google’s lawyers may have given the court more confidence to uphold the test if it chooses to do so.
Henderson’s test came from November ruling by the Fourth Circuit Court of Appeals in Henderson v. The Source for Public Data. The plaintiffs in that case sued a group of companies that collect public information about individuals, such as criminal records, voting records and driving information, and then put it into a database that they sell to third parties. The plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to provide accurate information and providing inaccurate information to a potential employer.
A lower court ruled that Section 230 barred the claims, but an appeals court overturned that decision.
The appeals court wrote that to invoke § 230 protections, “we require that the defendant bear responsibility for some objectionable content in its publication.”
In this case, the fault wasn’t the content itself, but how the company chose to present it.
The court also ruled that Public Data was responsible for the content because it decided how to present it, even though the information was pulled from other sources. The court said it was likely that some of the information that Public Data sent to one of the plaintiff’s potential employers was “inaccurate because it omitted or summarized information in a way that made it misleading.” In other words, once Public Data has made changes to the information it draws, it has become an information content provider.
If the Supreme Court were to uphold Henderson’s ruling, it would essentially “debunk Section 230,” said Jess Miers, legal counsel for the Chamber of Progress, a center-left industry group that counts Google among its supporters. Miers said that’s because the primary benefit of Section 230 is to help quickly dismiss cases against platforms that focus on user submissions.
“It’s a really dangerous test because it again encourages plaintiffs to then just defend their claims in ways that say, well, we’re not talking about how objectionable the content is at issue,” Miers said. “We’re talking about the way the service put that content together or compiled it.”
Eric Goldman, a professor at Santa Clara University School of Law, wrote on his blog that Henderson would be “a disastrous decision if taken by SCOTUS.”
“It was shocking to me to see Google support the Henderson opinion because it’s a dramatic narrowing of Section 230,” Goldman said at a virtual press conference hosted by the Progressive Chamber after the arguments. “And to the extent that the Supreme Court takes that bait and says, ‘Henderson is good for Google, it’s good for us,’ we’re really going to see a dramatic narrowing of Section 230, where plaintiffs are going to find a lot more opportunities to bring cases based on third party content. They will only say that they are based on something other than the damage that occurred in the third party content itself.”
Google pointed to parts of it brief in the Gonzalez case, which discussed the Henderson test. In the report, Google attempts to distinguish the actions of search engines, social media sites or chat rooms that display snippets of third-party information from the actions of credit information websites like those at issue in the Henderson case.
In the case of the chat room, Google says that while “the operator supplies the organization and layout, the underlying posts are still third-party content,” meaning Section 230 would apply.
“In contrast, where a credit information website fails to provide users with its own required statement of consumer rights, § 230(c)(1) does not relieve liability,” Google wrote. “Even if the website also publishes third-party content, failure to summarize consumer rights and provide this information to customers is solely the act of the website.”
Google also said that 230 would not apply to websites that “require users to communicate allegedly illegal preferences,” such as those that would violate housing law. This is because “we materially contribute to [the content’s] illegality,’ the site appropriates and is responsible for that content,” Google said, citing the 2008 case Fair Housing Council of San Fernando Valley v. Roommates.com.
Google concession concerns
Section 230 experts who covered the Supreme Court’s arguments were puzzled by Google’s lawyer’s decision to so fully support Henderson. In trying to make sense of this, some have suggested that it may have been a strategic decision to try to show the justices that Section 230 is not an unlimited free pass for technology platforms.
However, many also felt that Google had gone too far.
Cathy Gellis, who represented amici in a brief filed in the case, said at a House briefing that Google’s lawyer was probably trying to illustrate the line of where Section 230 does and doesn’t apply, but “by supporting it so broadly, they probably supported more than we bargained for, and certainly more than friends would necessarily sign.”
Corbin Barthold, Internet Policy Advisor at the company powered by Google TechFreedom said in a separate press conference that the idea Google may have been trying to convey in supporting Henderson wasn’t necessarily bad in itself. He said he seemed to be trying to argue that even if you use the definition of publication that Henderson gives, the organization of information is an integral part of what the platforms do because “there is no such thing as a brute-force delivery of information.”
However, according to Barthold, Google’s lawyer “kind of threw a hostage to wealth” with this argument.
“Because if the court doesn’t take into account Google’s argument that there really is no difference, it could go the wrong way,” he added.
Miers speculated that Google may have considered the Henderson case relatively safe to cite, given that it involved an alleged violation of the Fair Credit Reporting Act, rather than an issue of a user’s social media post.
“Maybe Google’s lawyers were looking for a way to show the court that Section 230 immunity has limitations,” Miers said. “But I think that’s going to require a pretty problematic reading into the § 230 immunity test that may have pretty irreparable results for future internet law litigation.”
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