United States Supreme Court v. Blue Sky in Washington, DC, USA. Photographer: Stefani Reynolds/Bloomberg

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The legal test which Google The lawyer said that the Supreme Court was about “96% right” could dramatically 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 enforced to the highest degree.

The so-called “Henderson test” would significantly weaken the power of Section 230 of the Communications Decency Act, several experts said in conversations and briefings after oral arguments in Gonzalez v. Google. Some of those who criticized Google’s concession even work for groups supported by the company.

Section 230 is a statute that protects the ability of technology platforms to host user submissions — such as social media posts, video and audio uploads, and comments — without being held legally liable for their content. It also allows platforms to moderate their services and remove posts they deem objectionable.

The law is at the center of an issue to be decided by the Supreme Court in the Gonzalez case, which asks whether platforms such as Google YouTube may be responsible for algorithmically recommending posts by users that appear to support or promote terrorism.

During Tuesday’s arguments, the justices seemed hesitant to issue a ruling that would change Section 230.

But even if they avoid commenting on the law, they could still make reservations that would change how it is implemented or clear the way for future changes to the law.

What is the Henderson test?

Some advocates suggest that the Supreme Court could undermine Section 230 by adopting the Henderson test. Ironically, Google’s own lawyers may have given the court more confidence in approving this test, should it choose to do so.

The Henderson test came as a result of the Fourth Circuit Court of Appeals’ November decision in Henderson v. Public Data Source . The plaintiffs in the case sued a group of companies that collect publicly available personal information, 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 maintain 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 in order for the section 230 defense to apply, “we require that the defendant be held liable for some inappropriate content in their publication.”

In this case, the culprit was not the content itself, 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 was plausible that some of the information sent by one of the plaintiff’s potential employers was “inaccurate because it omitted or summarized information in a way that was misleading.” In other words, once Public Data has made changes to the information it receives, it has become a provider of information content.

If the Supreme Court upholds Henderson’s ruling, it would effectively be a “controversial section 230,” said Jess Miers, legal counsel for the Chamber of Progress, a center-left industry group that counts Google as one of its supporters. Miers said that’s because the main benefit of Section 230 is to help quickly dismiss cases against platforms that focus on user posts.

“It’s a really dangerous test because, again, it encourages plaintiffs to simply defend their claims in ways that say, well, we’re not talking about how inappropriate the content is,” Miers said. “We’re talking about how the service aggregated or aggregated that content.”

Eric Goldman, a professor at Santa Clara University’s law school, wrote on his blog that the Henderson decision would be “disastrous if upheld 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 in a virtual press conference hosted by the House 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 will actually see a dramatic narrowing of Section 230, where plaintiffs will find many other avenues to bring cases that are based on third-party content. They’ll just say they’re based on something other than the damage caused by the third-party content itself.”

Google pointed to portions of its record in the Gonzalez case that discuss the Henderson test. In the brief, Google attempts to distinguish the actions of a search engine, social media site, or chat that display snippets of third-party information from the actions of a credit reporting website, such as those at issue in Henderson.

Google says that in the case of chat, while “the operator provides the organization and layout, the underlying messages are still third-party content,” meaning that Section 230 applies.

“In contrast, if a credit reporting website fails to provide users with its own required statement of consumer rights, section 230(c)(1) does not bar liability,” Google wrote. “Even if a website also publishes third-party content, the failure to summarize consumer rights and not provide that information to customers is solely the website’s doing.”

Google also said that 230 will not apply to websites that “require users to convey allegedly illegal benefits,” such as those that violate housing laws. This is because “a material contribution to [the content’s] illegality,’ the website makes that content its own and is responsible for it,” Google said, citing the 2008 San Fernando Valley Fair Housing Council v. Roommates.com case.

Concerns about Google’s concession

Section 230 experts who reviewed the Supreme Court’s arguments were perplexed by Google’s lawyer’s decision to so strongly support Henderson. In trying to figure this out, some have speculated that it may have been a strategic move to try to show the justices that Section 230 is not a limitless free pass for technology platforms.

But at the same time, many also felt that Google had gone too far.

Cathy Gelis, who represented amici in a brief filed in the case, said at a House of Progress briefing that Google’s lawyer was probably trying to illustrate where Section 230 does and doesn’t apply, but “by upholding it broadly, he’s probably upholding , more than we expected, and certainly more than friends would necessarily sign.”

Corbin Barthold, an internet policy adviser at Google-backed TechFreedom, said at a separate news conference that the idea Google may have been trying to convey by backing Henderson wasn’t necessarily a bad one in itself. He said they seemed to be trying to make the argument that even if you use the definition of publishing, as Henderson puts it, organizing information is an integral part of what platforms do because “there is no such thing as a raw transmission of information “.

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

“Because if the court doesn’t believe Google’s argument that there’s really no difference, it could go in a bad direction,” he added.

Miers suggested that Google may have considered Henderson’s case relatively safe to cite, given that it involved an alleged violation of the Fair Credit Reporting Act, not a user’s social media post.

“Maybe Google’s lawyers were looking for a way to show the court that Section 230 immunity has limits,” Miers said. “But I believe that in doing so, the test for Section 230 immunity could introduce some pretty problematic testimony that could have pretty dire consequences for future Internet law litigation.”

SEE: Why the Supreme Court’s Section 230 case could change the shape of the Internet

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