The US Supreme Court against a blue sky in Washington, DC, USA. Photographer: Stefani Reynolds/Bloomberg
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A legal test for it Google’s The attorney, who told the Supreme Court he 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 campaigning for compliance with the law use to the greatest extent.
The so-called “Henderson test” would significantly weaken the power of Section 230 of the Communications Decency Act, several experts said in talks and briefings after hearings in the Gonzalez v. Google case. Some of those who criticized Google’s concession even work for groups supported by Google.
Section 230 is the law that protects the ability of technology platforms to host user material — such as social media posts, uploaded video and audio files, and comments — without being held legally liable for their content. It also allows platforms to moderate their services and remove posts they find offensive.
The law is at the heart of the question the Supreme Court will rule in the Gonzalez case, which is about whether platforms like Google’s YouTube may be held responsible for algorithmically recommending User Submissions that appear to support or promote terrorism.
In arguments Tuesday, judges appeared reluctant to make a decision that would revise Section 230.
But even if they avoid commenting on this law, they could still issue caveats that change the way it is enforced or pave a way for future changes in the law.
What is the Henderson test?
One way the Supreme Court could undercut Section 230 is by sanctioning the Henderson test, some proponents believe. Ironically, Google’s own lawyers may have given the court more confidence to support this test if it chooses to do so.
The Henderson test grew out of a November ruling by the Fourth Circuit Court of Appeals in Henderson v. The Source for Public Data. The plaintiffs in this case are suing a group of companies that collect public information about individuals, such as criminal records, voting records and driving information, and then put it in 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 prospective employer.
A lower court ruled that Section 230 barred the claims, but the appeals court reversed that decision.
The Court of Appeals wrote that for Section 230 protections to apply, “require that the defendant be held liable for some objectionable content in his posting.”
In this case, it wasn’t the content itself that was to blame, but how the company presented it.
The court also ruled that Public Data was responsible for the content because it decided how it should be presented, even though the information was obtained from other sources. The court said it was plausible that some of the information Public Data sent to one of the plaintiff’s potential employers was “inaccurate because it omitted information or summarized it in a way that made it misleading.” In other words, once Public Data made changes to the information it retrieved, it became an information content provider.
If the Supreme Court upholds the Henderson ruling, it would effectively “put Section 230 up for discussion,” said Jess Miers, counsel for the Chamber of Progress, a center-left industry group that counts Google among its supporters. Miers said this is because Section 230’s primary benefit is to quickly dismiss cases against platforms that focus on user contributions.
“It’s a really dangerous test because it encourages plaintiffs to then just make their claims by saying, well, we’re not talking about how inappropriate the content that’s being discussed is,” Miers said. “We’re talking about how the service compiled or compiled that content.”
Santa Clara University Law School professor Eric Goldman wrote on his blog that Henderson would be a “disastrous verdict if accepted by SCOTUS.”
“It was shocking to me to see Google backing a Henderson position because it’s a dramatic narrowing of Section 230,” Goldman said at a virtual news conference hosted by the Chamber of Progress following 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 will actually see a dramatic narrowing of Section 230, where prosecutors will find many other ways bring such cases based on third-party content. They’ll just say they’re based on something other than the harm inherent in the third-party content itself.”
Google pointed to the portions of its brief in the Gonzalez case that address the Henderson test. In short, Google tries to distinguish the actions of a search engine, social media site, or chat room that display snippets of third-party information from those of a credit reporting site, such as the one discussed in Henderson.
In the case of a chat room, Google says that although the “operator provides the organization and layout, the underlying posts are still third-party content,” meaning they would be covered by Section 230.
“In contrast, Section 230(c)(1) does not exclude liability where a credit reporting website fails to provide users with its own required statement of consumer rights,” Google wrote. “Although the site also publishes third-party content, the failure to summarize consumer rights and provide that information to customers is the site’s sole action.”
Google also said that 230 would not apply to a site that “requires users to share allegedly illegal preferences,” such as B. those that would violate the Housing Act. This is because by “making a material contribution to [the content’s] unlawfulness, the site endorses and is responsible for that content,” said Google, citing the 2008 Fair Housing Council of San Fernando Valley v. Roommates.com case.
Google Concession Concerns
Section 230 experts processing the Supreme Court’s arguments were stunned by Google’s attorney’s decision to so vociferously support Henderson. In trying to understand it, several suggested it might have been a strategic decision to show the judges that Section 230 is not a limitless free pass for technology platforms.
But Google went too far with that.
Cathy Gellis, who represented Amici in a brief filed in the case, said at the Progress Chamber’s briefing that Google’s attorney probably wanted to try to illustrate the line of where Section 230 applies and where it doesn’t, but “by making it endorsed so far, probably more than we expected and certainly more than Amici would have necessarily signed.”
Corbin Barthold, Internet policy adviser at Google-backed TechFreedom, said in a separate news conference that the idea Google might be trying to promote with Henderson’s support isn’t necessarily a bad idea in and of itself. He said they seemed to argue that even if you use a definition of publication like Henderson, organizing information is part of what platforms do, because “there’s no such thing as just conveying information.”
But with this argument, according to Barthold, Google’s lawyer “threw a kind of hostage to luck”.
“Because if the court then doesn’t buy Google’s argument that there really isn’t a distinction to be made here, it could go in a bad direction,” he added.
Miers speculated that Google may have considered the Henderson case to be relatively safe because it was an alleged violation of the Fair Credit Reporting Act and not a question of a user’s social media post.
“Perhaps Google’s attorneys were looking for a way to show the court that Section 230 immunity has limits,” Miers said. “But I think this invites some pretty problematic readings into Section 230 immunity testing, which may have pretty irreparable results for future internet litigation.”
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