The U.S. Supreme Court against a blue sky in Washington, D.C., US. Photographer: Stefani Reynolds/Bloomberg
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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.”
WATCH: Why the Supreme Court’s Section 230 case could reshape the internet
United Launch Alliance Atlas V rocket carrying the first two demonstration satellites for Amazon’s Project Kuiper broadband internet constellation stands ready for launch on pad 41 at Cape Canaveral Space Force Station on October 5, 2023 in Cape Canaveral, Florida, United States.
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Amazon delayed the launch of its Kuiper internet satellites due to poor weather conditions on Wednesday night.
A United Launch Alliance rocket carrying 27 Kuiper satellites was set to lift off from a launchpad in Cape Canaveral, Florida, but ULA said it couldn’t continue countdown operations as “stubborn cumulus clouds” and heavy winds pushed the launch outside its planned window, according to a livestream.
“Weather is observed and forecast NO GO for liftoff within the remaining launch window at Cape Canaveral this evening,” ULA said. The company said it will provide a new launch date at a later point.
Six years ago Amazon unveiled its plans to build a constellation of internet satellites in low Earth orbit, a region of space that’s within 1,200 miles of Earth’s surface. The company aims to sell high-speed, low-latency internet to consumers, corporations and governments, offering connections through square-shaped terminals. Commercial service is expected to come online later this year.
Amazon is racing to compete with SpaceX’s Starlink, the dominant player in the market, with 8,000 satellites already up in the air. SpaceX CEO Elon Musk now has a central role in the White House as one of President Donald Trump’s top advisors, overseeing the Department of Government Efficiency, or DOGE. Since Musk took on the role, Starlink’s footprint has increased within the federal government.
The clock is ticking for Amazon to meet a deadline set by the Federal Communications Commission, which requires the company to have half of its total constellation, or 1,618 satellites, up in the air by July 2026.
Once it completes its first launch, Amazon expects to ramp up its production, processing and deployment rates. It’s begun prepping satellites for its next mission, which will also hitch a ride on one of ULA’s Atlas V rockets.
Alphabet CEO Sundar Pichai meets with Polish Prime Minister Donald Tusk in Warsaw, Poland, on February 13, 2025.
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Google has reversed a policy forbidding employees from discussing its antitrust woes following a settlement with workers.
The company sent a notice to U.S. employees last week saying it rescinded “the rule requesting that workers refrain from commenting internally or externally about the on-going antitrust lawsuit filed against Google by the U.S. Department of Justice,” according to correspondence viewed by CNBC.
Google settled with the Alphabet Workers Union, which represents company employees and contractors, according to the U.S. National Labor Relations Board, or NLRB. The settlement and policy reversal mark a major victory for Google staffers, who have seen increased censorship on subjects such as politics, litigation and defense contracts by the search giant since 2019.
The U.S. Department of Justice filed an antitrust lawsuit against Google in 2020, alleging that the company has kept its share of the general search market by creating strong barriers to entry and a feedback loop that sustained its dominance.
Google said it “will not announce or maintain overbroad rules or policies that restrict your right to comment, internally or externally, about whether and/or how the on-going antitrust lawsuit filed against Google by the U.S. Department of Justice may impact your terms and conditions of employment,” according to last week’s notice.
The policy change was first reported by The New York Times.
The reversal comes as Google and the DOJ prepare to return to the courtroom for their scheduled remedies trial on April 21. The DOJ has said it is considering structural remedies, including breaking up Google’s Chrome web browser, which it argues gives Google an unfair advantage in the search market.
A U.S. District Court judge ruled in August that Google illegally held a monopoly in the search market. Google said it would appeal the decision. The DOJ doubled down on its calls for a breakup in a March filing.
Following the August ruling, Kent Walker, Google’s president of global affairs, sent a companywide email directing employees to “refrain from commenting on this case, both internally and externally.”
Shortly after, the Alphabet Workers Union filed an unfair labor practice charge against Google with the NLRB. The union alleged that Walker’s message was an “overly broad directive” and said that a breakup could impact workers’ roles. The NLRB in March ruled that Google must allow workers to speak on such topics.
Google’s settlement states that the National Labor Relations Act gives employees the right to form, join or assist a union. It notes that Google is not rescinding its prior clarification that states employees may not speak on behalf of Google on this matter without approval from the company. The settlement also adds that Google will not interfere with, restrain or coerce workers in the exercise of their rights.
Despite the settlement, spokesperson Courtenay Mencini said Google did not agree with the NLRB’s ruling.
“To avoid lengthy litigation, we agreed to remind employees that they have the right to talk about their employment, as they’ve always been free to and regularly do,” Mencini said in a statement to CNBC.
The settlement by Google comes at a “crucial moment” ahead of the remedies trial, the Alphabet Worker’s Union said Monday.
“We think the potential remedies from this trial could have impact on our wages, working conditions and terms of employment,” said Stephen McMurtry, communications chair of the Alphabet Workers Union-CWA, told CNBC.
Apple CEO Tim Cook inspects the new iPhone 16 during an Apple special event at Apple headquarters on September 09, 2024 in Cupertino, California.
Justin Sullivan | Getty Images
Apple shares skyrocketed 15% on Wednesday after President Donald Trump announced a 90-day pause on his administration’s “reciprocal tariffs,” which would have affected the company’s production locations in Vietnam, India, and Thailand.
The rally added over $400 billion to Apple’s market cap, which now stands just under $3 trillion. It was Apple’s best day since January 1998, when late founder Steve Jobs was the interim CEO and three years before the company unveiled the first iPod. At the time, Apple’s market cap was close to $3 billion.
Apple has been the most prominent name to get whacked by Trump’s tariffs. Before Wednesday, it was on its worst four-day trading stretch since 2000. Investors worried about Apple’s outlook because the company still makes the majority of its revenue from selling physical devices, which need to be imported into the U.S.
Most of Apple’s iPhones and other hardware products are still made in China, which was not exempted from tariffs on Wednesday. In fact, Trump increased tariffs on China to 125% on Wednesday, up from 54%.
China issued an 84% tariff on U.S. goods this week, raising the possibility that Apple could get caught up in a trade war and lose ground in China, its third-largest market by sales.
Apple has worked to diversify its supply chain to lessen reliance on China in recent years.
On Wednesday, tariffs on Vietnam were reduced from 46% to 10%, and tariffs on India were cut 26% to 10%, which raises the possibility that Apple will be able to serve a large percentage of its U.S. customers from factories outside of China with lower tariffs.
Stocks skyrocketed across the board on Wednesday after Trump announced the tariff pause. The Nasdaq Composite climbed over 12%, its second-best day ever.
Apple hasn’t commented publicly on Trump’s tariffs, but CEO Tim Cook will likely address the topic on an earnings call on May 1.
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