How an obscure legal doctrine called the Henderson test could weaken Section 230 and change free speech on the internet
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
A customer holds up the new orange-colored iPhone 17 Pro Max smartphone inside an Apple retail store in Chongqing, China, on September 19, 2025.
Cheng Xin | Getty Images News | Getty Images
The iPhone 17 hit store shelves worldwide on Friday, drawing lines from Beijing to London.
But beyond the launch buzz, Apple is under pressure to prove itself, grappling with questions over its artificial intelligence plans, as well as increasing competition.
Products on display for the first time include the iPhone 17 Pro, iPhone 17 Pro Max, and iPhone Air, as well as new Apple Watch and AirPods models.
While they were available for preorders in the U.S. from Sept. 12, the global launch holds particular significance as Apple takes on growing competition in overseas markets.
China competition
One of those markets is China, where customers waited for hours — and even overnight — to get their hands on the new iPhone
First in line at the Apple flagship Store in Sanlitun, Beijing, this morning, was Liu — he did not wish to be identified by his full name — who told CNBC that he had been queuing since 11 p.m. local time Thursday for his chance to pick up the iPhone 17 Pro Max.
A customer shows off his new iPhone 17 at Apple’s Regent Street store on Sept. 19.
Arjun Kharpal | CNBC
He said he was excited about the smartphone’s new color and exterior design, which Apple says has improved the phone’s heat dissipation.
Notably, Liu also said he has changed to Apple from Huawei in recent years, saying he preferred the iPhone for daily use and entertainment.
Another person, who wished to be identified only by his surname, Yang — an erstwhile Xiaomi user — said he had been waiting to get his hands on the latest iPhone, preferring its operating system.
Both Liu and Yang expect many Chinese residents to buy their first iPhone this year due to the new features, including larger internal storage.
If that trend were to pan out, it would be welcome news for Apple, which has lost market share in China to players such as Huawei and Xiaomi.
After years of leadership in the region, the iPhone-maker now only holds 10% of the Chinese smartphone market, trailing local players like Oppo, Huawei, Xiaomi and others, according to data from Omdia.
Apple’s latest iPhone models are shown on display at its Regent Street, London store on the launch day of the iPhone 17.
Arjun Kharpal | CNBC
So far, the signs are positive for the iPhone 17 series in China. Last Friday, JD.com — one of China’s largest ecommerce platforms — saw the first minute of iPhone 17 series preorders surpass the first-day preorder volume of last year’s iPhone 16 series, the company reported.
At 10 a.m. local time on Friday, JD.com said that iPhone 7 trade-in sales were four times higher than the same period last year.
Other markets
In the much smaller but affluent market of Singapore, the redesigned iPhone 17s were also met with fervor, with long lines forming outside Apple outlets across the city.
Iman Isa and Daniel Muhamed Nuv, two young professionals in Singapore, both queued for hours at Apple’s outlet in the city’s iconic Marina Bay mall to buy iPhone 17 Pros, which they said were their first new phones in years.
Citing the fresh design, longer battery life and improved camera, they said the new phones offer enough to keep them loyal to the Apple ecosystem.
Based on preorder times and consumer feedback, the initial global demand for the iPhone 17 series appears largely positive, said Le Xuan Chiew, a research manager at Omdia.
The iPhone 17 base model in particular has outperformed expectations, as the pricing at launch remained unchanged from its predecessor despite upgrades in memory storage, Chiew said.
In Singapore, customers arriving at Apple outlets had also been looking to nab some of the company’s new AirPods Pro 3, citing the product’s live translation feature as a major selling point.
In London, lines were notably longer than they were at last year’s launch of the iPhone 16, and customers appeared more interested in the premium offerings — the Pro and Pro Max models — this time around.
People lined up outside Apple’s Regent Street, London store on Sept. 19 to get their hands on the latest iPhone 17.
Arjun Kharpal | CNBC
“For the last five years, I’ve been in a pattern of constantly upgrading my phone, because every year Apple is bringing something new to the table,” one customer, Jasmine, said. “I just love having that experience of Apple every year.”
Meanwhile, Michael, who described himself as a content creator, said he was drawn by the battery and camera.
“I thought about going for the [iPhone] Air, but I just don’t know whether or not the battery is going to be able to hold up. And that single camera? I don’t know, it’s just a little bit off-putting on the back,” he said of Apple’s thin iPhone 17 offering.
Apple intelligence
A successful iPhone 17 launch could help reassure Apple investors after a somewhat underwhelming rollout of its artificial intelligence features, which began late last year.
Speaking to CNBC’s “Squawk Box Europe” last week, Ben Wood, chief analyst at CCS Insight, lauded Apple’s latest product launches but said the company now needed to deliver on artificial intelligence.
“There is no question that Apple needs to deliver on AI,” he said, noting that the company had “dropped the ball” last year by making big promises that failed to materialize.
“Apple has to catch up [in AI], but right now, I think they’ve got enough runway to be able to cope in the intervening period.”
– CNBC’s Eunice Yoon contributed to this report
Technology
Nvidia just spent over $900 million to hire Enfabrica CEO, license AI startup’s technology
Co-founder and chief executive officer of Nvidia Corp., Jensen Huang attends the 9th edition of the VivaTech trade show in Paris on June 11, 2025.
Chesnot | Getty Images Entertainment | Getty Images
Nvidia has just shelled out over $900 million to hire Enfabrica CEO Rochan Sankar and other employees at the artificial intelligence hardware startup, and to license the company’s technology, CNBC has learned.
In a deal reminiscent of recent AI talent acquisitions made by Meta and Google, Nvidia is paying cash and stock in the transaction, according to two people familiar with the arrangement. The deal closed last week, and Enfabrica CEO Rochan Sankar has joined Nvidia, said the people, who asked not to be named because the matter is private.
Nvidia has served as the backbone of the AI boom that began with the launch of OpenAI’s ChatGPT in late 2022. The company’s graphics processing units (GPUs), which are generally purchased in large clusters, power the training of large language models and allow for big cloud providers to offer AI services to clients.
Enfabrica, founded in 2019, says its technology can connect more than 100,000 GPUs together. It’s a solution that could help Nvidia offer integrated systems around its chips so clusters can effectively serve as a single computer.
A spokesperson for Nvidia declined to comment, and Enfabrica didn’t provide a comment for this story.
While Nvidia’s earlier AI chips like the A100 were single processors slotted into servers, its most recent products come in tall racks with 72 GPUs installed working together. That’s the kind of system inside the $4 billion data center in Wisconsin that Microsoft announced on Thursday.
Nvidia previously invested in Enfabrica as part of a $125 million Series B round in 2023 that was led by Atreides Management. The company didn’t disclose its valuation at the time, but said that it was a fivefold increase from its Series A funding.
Late last year, Enfabrica raised another $115 million from investors including Spark Capital, Arm, Samsung and Cisco. According to PitchBook, the post-money valuation was about $600 million.
Tech giants Meta, Google, Microsoft and Amazon have all poured money into hiring top AI talent through deals that resemble acquihires. The transactions allow the companies to bring in top engineers and researchers without worrying about the regulatory hassles that come with acquisitions.
The biggest such deal came in June, when Meta spent $14.3 billion on Scale AI founder Alexandr Wang and others and took a 49% stake in the AI startup. A month later, Google announced an agreement to bring in Varun Mohan, co-founder and CEO of artificial intelligence coding startup Windsurf, and other research and development employees in a $2.4 billion deal that also included licensing fees.
Last year, Google made a similar deal to bring in the founders of Character.AI. Microsoft did the same thing for Inflection, as did Amazon for Adept.
While Nvidia has been a big investor in AI technologies and infrastructure, it hasn’t been a significant acquirer. The company’s only billion-dollar-plus deal was for Israeli chip designer Mellanox, a $6.9 billion purchase announced in 2019. Much of Nvidia’s current Blackwell product lineup is enabled by networking technology that it acquired through that acquisition.
Nvidia tried to buy chip design company Arm, but that deal collapsed in 2022 due to regulatory pressure. In the past year, Nvidia closed a $700 million purchase of Run:ai, an Israeli company whose technology helps software makers optimize their infrastructure for AI.
On Thursday, Nvidia announced one of its most sizable investments to date. The chipmaker said it’s taken a $5 billion stake in Intel, and announced that the two companies will collaborate on AI processors. Nvidia also said this week that it invested close to $700 million in U.K. data center startup Nscale.
— Correction: A prior version of this story mistakenly included the name of a company as an investor in Enfabrica.
CrowdStrike logo is seen in this illustration taken July 29, 2024.
Dado Ruvic | Reuters
CrowdStrike shares popped about 13%, a day after the cybersecurity firm issued better-than-expected long-term guidance at its investor day.
The company on Wednesday said it expects net new annual recurring revenues to grow at least 20% in 2027, ahead of analysts’ expectations. CrowdStrike plans for ARR to hit $10 billion by 2031, and then double to $20 billion by 2036.
Earlier this week, the firm said it was buying AI security platform Pangea and announced a partnership with Salesforce.
“CrowdStrike is by far the most advanced security platform in the industry, and the plethora of AI-based solutions announced today will further separate CrowdStrike from the competition,” wrote Wells Fargo analyst Andrew Nowinski in a note following the event.
Some Wall Street firms also boosted their price targets.
Cybersecurity has taken center stage this year as businesses beef up security in the age of artificial intelligence. Many companies have harnessed AI tools to strengthen their offering as threats rise in sophistication.
This year’s biggest tech deals have included Google’s $32 billion acquisition of Israeli cybersecurity startup Wiz and Palo Alto Networks’ $25 billion CyberArk deal.
Cybersecurity firm Netskope hit the public market Thursday, while Thoma Bravo-backed SailPoint debuted earlier this year.
During its recent earnings report, CrowdStrike’s revenue guidance for the third quarter fell short of analysts’ expectations.
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