A legal test that Google’s lawyer told the Supreme Court was roughly “96% correct” could drastically undermine the liability shield that the company and other tech platforms have relied on for decades, according to several experts 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, several experts said in conversations and briefings following oral arguments in the case Gonzalez v. Google. Some of those who criticized Google’s concession even work for groups backed by the company.
Section 230 is the statute that protects tech platforms’ ability to host material from users — like 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 consider objectionable.
The law is central to the question that will be decided by the Supreme Court in the Gonzalez case, which asks whether platforms like Google’s YouTube can be held responsible for algorithmicaly recommending user posts that seem to endorse or promote terrorism.
In arguments on Tuesday, the justices seemed hesitant to issue a ruling that would overhaul Section 230.
But even if they avoid commenting on that law, they could still issue caveats that change 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 Section 230 is by endorsing the Henderson test, some advocates believe. Ironically, Google’s own lawyers may have given the court more confidence to endorse this test, if it chooses to do so.
The Henderson test came about from a November ruling by the Fourth Circuit appeals court in Henderson v. The Source for Public Data. The plaintiffs in that case sued a group of companies that collect public information about individuals, like criminal records, voting records and driving information, then put 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 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 liability attach to the defendant on account of some improper content within their publication.”
In this case, it wasn’t the content itself that was at fault, but how the company chose to present it.
The court also ruled 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’s plausible that some of the information 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 made changes to the information it pulled, it became an information content provider.
Should the Supreme Court endorse the Henderson ruling, it would effectively “moot Section 230,” said Jess Miers, legal advocacy counsel for Chamber of Progress, a center-left industry group that counts Google among its backers. Miers said this is because Section 230’s primary advantage is to help quickly dismiss cases against platforms that center on user posts.
“It’s a really dangerous test because, again, it encourages plaintiffs to then just plead their claims in ways that say, well, 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 content together or compiled that content.”
Eric Goldman, a professor at Santa Clara University School of Law, wrote on his blog that Henderson would 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 Section 230,” Goldman said at a virtual press conference hosted by Chamber of Progress after the arguments. “And to the extent that the Supreme Court takes that bait and says, ‘Henderson’s good to Google, it’s good to us,’ we will actually see a dramatic narrowing of Section 230 where plaintiffs will find lots of other opportunities to to bring cases that are based on third-party content. They’ll just say that they’re based on something other than the harm that was in the third party content itself.”
Google pointed to the parts of its brief 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 room that displays snippets of third-party information from those of a credit-reporting website, like those at issue in Henderson.
In the case of a chatroom, Google says, although the “operator supplies the organization and layout, the underlying posts are still third-party content,” meaning it would be covered by Section 230.
“By contrast, where 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 the website also publishes third-party content, the failure to summarize consumer rights and provide that information to customers is the website’s act alone.”
Google also said 230 would not apply to a website that “requires users to convey allegedly illegal preferences,” like those that would violate housing law. That’s because by “‘materially contributing to [the content’s] unlawfulness,’ the website makes that content its own and bears responsibility for it,” Google said, citing the 2008 Fair Housing Council of San Fernando Valley v. Roommates.com case.
Concerns over Google’s concession
Section 230 experts digesting the Supreme Court arguments were perplexed by Google’s lawyer’s decision to give such a full-throated endorsement of Henderson. In trying to make sense of it, several suggested it might have been a strategic decision to try to show the justices that Section 230 is not a boundless free pass for tech platforms.
But in doing so, many also felt Google went too far.
Cathy Gellis, who represented amici in a brief submitted in the case, said at the Chamber of Progress briefing that Google’s lawyer was likely looking to illustrate the line of where Section 230 does and does not apply, but “by endorsing it as broadly, it endorsed probably more than we bargained for, and certainly more than necessarily amici would have signed on for.”
Corbin Barthold, internet policy counsel at Google-backed TechFreedom, said in a separate press conference that the idea Google may have been trying to convey in supporting Henderson wasn’t necessarily bad on its own. He said they seemed to try to make the argument that even if you use a definition of publication like Henderson lays out, organizing information is inherent to what platforms do because “there’s no such thing as just like brute conveyance of information.”
But in making that argument, Barthold said, Google’s lawyer “kind of threw a hostage to fortune.”
“Because if the court then doesn’t buy the argument that Google made that there’s actually no distinction to be had here, it could go off in kind of a bad direction,” he added.
Miers speculated that Google might have seen the Henderson case as a relatively safe one to cite, given than it involves an alleged violation of the Fair Credit Reporting Act, rather than a question of a user’s social media post.
“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 in in doing so, that invites some pretty problematic reading readings into the Section 230 immunity test, which can have pretty irreparable results for future internet law litigation.”
Employees stand near an The Amazon Inc. logo is displayed above the reception counter at the company’s campus in Hyderabad, India, on Friday, Sept. 6, 2019.
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Amazon on Wednesday committed to investing over $35 billion in India’s cloud and artificial intelligence space by 2030, as hyperscalers race to get a foothold in the market.
The commitment, unveiled at the Amazon Smbhav Summit in New Delhi, builds on nearly $40 billion already invested in the country.
In a press release, Amazon said the new funds will target AI-driven digitization, export growth and job creation, aligning with India’s national priorities to build up its local AI environment.
By 2030, Amazon said the plan is expected to generate an additional 1 million direct, indirect, induced and seasonal jobs in India, quadruple exports to $80 billion and deliver AI benefits to 15 million small businesses.
The investment highlights Amazon’s bet on India’s booming digital economy, where it has been building fulfillment centers, data centers and payments infrastructure.
It also comes soon after Microsoft announced plans to invest $17.5 billion in India’s AI infrastructure as Big Tech players accelerate their push into the market.
“We are humbled to have been a part of India’s digital transformation journey over the past 15 years,” said Amit Agarwal, senior vice president for emerging markets at Amazon.
“Looking ahead, we’re excited to continue being a catalyst for India’s growth, as we democratize access to AI for millions of Indians.”
Microsoft CEO Satya Nadella appears at an event with tech CEOs and senior officials, including Indian Prime Minister Narendra Modi, in the East Room of the White House in Washington on June 22, 2023.
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Microsoft on Tuesday announced it would invest $17.5 billion in India’s cloud and artificial intelligence infrastructure, making it the U.S. tech giant’s largest investment in Asia.
The company said that the investments, aimed at expanding hyperscale infrastructure, embedding AI into national platforms, and advancing workforce readiness, will be spread over 4 years, building on its $3 billion pledge made in January.
The announcement follows a meeting between Microsoft CEO Satya Nadella and Indian Prime Minister Narendra Modi in which the two discussed India’s AI ambitions. Modi met with other tech CEOs on Tuesday too including Intel‘s Lip-Bu Tan.
In a post on social media, Nadella thanked Modi and said that Microsoft’s investments would “help build the infrastructure, skills, and sovereign capabilities needed for India’s AI first future.”
The move comes as India attempts to catch up on AI, with Modi emphasizing building a comprehensive tech ecosystem and AI sovereignty. The country has also recently attracted data center investment pledges of $15 billion from Google and $8 billion from Amazon Web Services.
“The youth of India will harness this opportunity to innovate and leverage the power of AI for a better planet,” Modi said in a post on X, referring to Microsoft’s investment.
Microsoft plans to use the funds to scale up its existing cloud and AI infrastructure to serve customers across regions in India. It now provides “Sovereign Public Cloud” and “Sovereign Private Cloud” services in several regions.
The company added that it was doubling its January commitment to train 20 million Indians in AI by 2030, with hopes to grow and skill its more than 22,000 employees in the country.
Microsoft also announced on Tuesday that it would be integrating its Azure AI capabilities into two key digital public platforms of India’s Ministry of Labour and Employment and the National Career Service.
India’s Union Minister of Electronics & Information Technology Ashwini Vaishnaw called the investment a signal of India’s rise as a reliable global technology partner, accelerating the shift from digital to AI public infrastructure.
While India lags far behind global leaders in advanced technologies like chips and AI, the country’s massive consumer market and public funding have attracted major tech players.
Under its “India Semiconductor Mission,” the country has approved 10 chip projects with total investments of over $18 billion.
On Monday, American chip designer Intel signed a deal with Mumbai-based Tata Electronics aimed at collaborating on chip offerings in the country, including on products for AI applications.
An eagle is seen framed though construction fence on the Marriner S. Eccles Federal Reserve Board Building, the main offices of the Board of Governors of the Federal Reserve System on September 16, 2025 in Washington, DC, U.S.
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On Wednesday stateside, the U.S. Federal Reserve is widely expected to lower its benchmark interest rates by a quarter percentage point to a range of 3.5%-3.75%.
However, given that traders are all but certain that the cut will happen — an 88.6% chance, to be exact, according to the CME FedWatch tool — the news is likely already priced into stocks by the market.
That means any whiff of restraint could weigh on equities. In fact, the talk in the markets is that the Fed might deliver a “hawkish cut”: lower rates while suggesting it could be a while before it cuts again.
The “dot plot,” or a projection of where Fed officials think interest rates will end up over the next few years, will be the clearest signal of any hawkishness. Investors will also parse Chair Jerome Powell’s press conference and central bankers’ estimates for U.S. economic growth and inflation to gauge the Fed’s future rate path.
In other words, the Fed could rein in market sentiment even if it cuts rates. Perhaps end-of-year festivities might be muted this year.