US Supreme Court against a blue sky in Washington, DC, USA. Photographer: Stefani Reynolds/Bloomberg

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A legal test that Google’s lawyer said the Supreme Court was about “96% correct” could drastically undermine the liability protections the company and other tech platforms have relied on for decades, according to several experts who advocate for upholding the law to the fullest extent.

The so-called “Henderson test” would significantly weaken the power of Section 230 of the Communications Decency Act, several experts said in calls 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 the 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 held legally responsible for their content. It also allows platforms to moderate their services and remove posts they deem offensive.

The law is central to the issue that will be decided by the Supreme Court in the Gonzalez case, which asks about platforms such as Google’s YouTube may be held liable for algorithmically recommending user posts that appear to support or promote terrorism.

In arguments on Tuesday, the judges seemed doubtful to issue a decision that would review § 230.

But even if they avoid commenting on that law, they can still issue warnings that change how it is applied, or pave the way for changing the law in the future.

What is the Henderson test?

One way the Supreme Court could undercut Section 230 is by adopting the Henderson test, some advocates believe. Ironically, Google’s own lawyers may have given the court more confidence to adopt this test, if it chooses to do so.

The Henderson test came from a November governing 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, voter registrations and driving information, then enter a database that they sell to third parties. The plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to maintain accurate information and by providing inaccurate information to a potential employer.

A lower court ruled that Section 230 barred the claims, but the appeals court overturned that decision.

The appeals court wrote that for Section 230 protection to apply, “we require that the defendants be liable because of any inappropriate content in their publication.”

In this case, it wasn’t the content itself that was at fault, but the way 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 if the information was taken from other sources. The court said it is 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, when Public Data made changes to the information it retrieved, it became an information content provider.

If the Supreme Court were to uphold the Henderson ruling, it would effectively “eliminate § 230,” said Jess Miers, legal counsel for the Chamber of Progress, a center-left industry group that counts Google among its backers. Miers said this is because Section 230’s main advantage is to quickly dismiss cases against platforms that focus on user submissions.

“It’s a really dangerous test because it again encourages plaintiffs to then just plead their claims in a way that says, well, we’re not talking about the inappropriateness of the content in question,” Miers said. “We’re talking about the way the service put the content together or compiled that content.”

Eric Goldman, a professor at Santa Clara University School of Law, wrote about his blog that Henderson would be a “catastrophic ruling if adopted by SCOTUS.”

“It was shocking to me to see Google support a Henderson opinion, because it’s a dramatic reduction of Section 230,” Goldman said at a virtual news conference held by the Chamber of Progress 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 actually going to see a dramatic reduction in Section 230 where plaintiffs are going to find a lot of other avenues to bring cases that are based on third-party content. They’re just saying they’re based on something other than the damage that was in the third-party content itself.”

Google pointed to the parts of it short in the Gonzalez case discussing the Henderson test. In summary, Google seeks to distinguish the actions of a search engine, social media, or chat room that display snippets of third-party information from the actions of a credit reporting website, such as those at issue in Henderson.

In the case of a chat room, Google says, even if “the operator provides the organization and layout, the underlying posts are still third-party content,” meaning it would fall under Section 230.

“In contrast, where a credit reporting website does not provide users with their own consumer rights claims, Section 230(c)(1) does not preclude liability,” Google wrote. “Although the website also publishes content from third parties, the failure to summarize consumer rights and provide that information to customers is the website’s action alone.”

Google also said 230 would not apply to a website that “requires users to convey allegedly illegal preferences,” such as those that would violate housing laws. That’s because by “materially contributing to (the content’s) illegality,” the site makes that content its own and assumes responsibility for it,” Google said, citing the 2008 Fair Housing Council of San Fernando Valley v. the case.

Concerns over Google’s concession

Section 230 experts digesting the Supreme Court’s arguments were baffled by Google’s counsel’s decision to give such full-throated support to Henderson. Trying to make sense of it, several suggested that it may have been a strategic decision to try to show the justices that Section 230 is not a limitless free pass for tech platforms.

But by doing so, many also felt that Google went too far.

Cathy Gellis, who represented amici in a brief filed in the case, said at the Progress Chamber briefing that Google’s attorney likely wanted to illustrate the line of where Section 230 does and does not apply, but “by supporting it so broadly, it probably connected more than we bargained for, and certainly more than necessarily amici would have signed up for.”

Corbin Barthold, Internet Policy Advisor at Google supported TechFreedom, said in a separate press conference that the idea that Google may have tried to convey to support Henderson was not necessarily bad in itself. He said they seemed to be trying to make the argument that even if you use a definition of publishing that Henderson lays out, organizing information is a natural part of what platforms do because “there’s no such thing as just brute force transmission of information.”

But in making that argument, Barthold said, “Google’s lawyer was kind of throwing a hostage to fortune.”

“Because then if the court doesn’t buy the argument that Google made that there’s actually no difference to be made here, it could go in a bad direction,” he added.

Miers speculated that Google might have viewed the Henderson case as a relatively safe one to cite, since it involves an alleged violation of the Fair Credit Reporting Act, rather than a matter of a user’s social media posts.

“Perhaps Google’s lawyers were looking for a way to show the court that there are limits to Section 230 immunity,” Miers said. “But I think when I do that, it invites some pretty problematic readings of the § 230 immunity test, which could have pretty irreparable results for future Internet litigation.”

SEE: Why the Supreme Court’s § 230 case could reshape the internet

Why the Supreme Court's § 230 Case Could Reshape the Internet