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.”
Vice Chair and President at Microsoft, Brad Smith, participates in the first day of Web Summit in Lisbon, Portugal, on November 12, 2024. The largest technology conference in the world this year has 71,528 attendees from 153 countries and 3,050 companies, with AI emerging as the most represented industry. (Photo by Rita Franca/NurPhoto via Getty Images)
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Microsoft plans to spend $80 billion in fiscal 2025 on the construction of data centers that can handle artificial intelligence workloads, the company said in a Friday blog post.
Over half of the expected AI infrastructure spending will take place in the U.S., Microsoft Vice Chair and President Brad Smith wrote. Microsoft’s 2025 fiscal year ends in June.
“Today, the United States leads the global AI race thanks to the investment of private capital and innovations by American companies of all sizes, from dynamic start-ups to well-established enterprises,” Smith said. “At Microsoft, we’ve seen this firsthand through our partnership with OpenAI, from rising firms such as Anthropic and xAI, and our own AI-enabled software platforms and applications.”
Several top-tier technology companies are rushing to spend billions on Nvidia graphics processing units for training and running AI models. The fast spread of OpenAI’s ChatGPT assistant, which launched in late 2022, kicked off the AI race for companies to deliver their own generative AI capabilities. Having invested more than $13 billion in OpenAI, Microsoft provides cloud infrastructure to the startup and has incorporated its models into Windows, Teams and other products.
Microsoft reported $20 billion in capital expenditures and assets acquired under finance leases worldwide, with $14.9 billion spent on property and equipment, in the first quarter of fiscal 2025. Capital expenditures will increase sequentially in the fiscal second quarter, Microsoft Chief Financial Officer Amy Hood said in October.
The company’s revenue from Azure and other cloud services grew 33% year over year, with 12 percentage points of that growth stemming from AI services.
Smith called on President-elect Donald Trump‘s incoming administration to protect the country’s leadership in AI through education and the promotion of U.S. AI technologies abroad.
“China is starting to offer developing countries subsidized access to scarce chips, and it’s promising to build local AI data centers,” Smith wrote. “The Chinese wisely recognize that if a country standardizes on China’s AI platform, it likely will continue to rely on that platform in the future.”
He added, “The best response for the United States is not to complain about the competition but to ensure we win the race ahead. This will require that we move quickly and effectively to promote American AI as a superior alternative.”
An Apple flagship store in Shanghai, China, October 15, 2024.
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Sales of foreign phone brands in China plunged in November, according to official data released Friday, underscoring further pressure on Apple, the biggest international handset vendor in the country.
In November, foreign mobile phone shipments in China stood at 3.04 million units, according to CNBC calculations based on data from the China Academy of Information and Communications Technology, or CAICT.
That’s a fall of 47.4% from November 2023, and a 51% drop from October last year.
CAICT does not break down figures for individual brands, however Apple accounts for the majority of foreign mobile phone shipments in China with competitors like Samsung forming only a tiny part of the market.
The figures highlight the mounting pressure Apple is under in the world’s largest smartphone market as it battles rising competition from domestic brands.
Apple is hoping its iPhone 16 series, which was released in September, will help the company regain momentum in China, with the Cupertino, California, tech giant promising a host of new artificial intelligence features via its Apple Intelligence software.
Facebook vice president of global public policy Joel Kaplan and Facebook CEO Mark Zuckerberg leave the Elysee Presidential Palace after a meeting with French President Emmanuel Macron on May 23, 2018 in Paris, France.
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Facebook parent Meta is replacing President of Global Affairs Nick Clegg with Joel Kaplan, the company’s current policy vice president and a former Republican party staffer.
The shake up comes three weeks before President-elect Donald Trump’s inauguration, and it’s the latest sign of how tech companies are positioning themselves for a new administration in Washington.
Clegg, a former British deputy prime minister, said he is stepping down, citing the new year as the right time to move on. He’ll be replaced by Kaplan, who will take on the title of Chief Global Affairs Officer.
Kaplan was a staffer under former President George W. Bush, and he appeared at the NYSE with Vice President-elect J.D. Vance and Trump in December. He also attended Supreme Court Justice Brett Kavanaugh’s confirmation hearing in 2018 as a personal friend, causing a controversy for the social media company.
“I will look forward to spending a few months handing over the reins — and to representing the company at a number of international gatherings in Q1 of this year,” Clegg wrote in a memo to his staff that he shared on Facebook on Thursday.
Clegg joined the company in 2018 after a career in British politics with the Liberal Democrats party, and he helped Meta navigate incredible scrutiny, especially over the company’s influence on elections and its efforts to control harmful content. Clegg also helped steer the company through the Cambridge Analytica scandal, in which Facebook shared user data with third-party political consultants. He also represented the company in Washington and London, frequently at panels for artificial intelligence and at congressional hearings.
“My time at the company coincided with a significant resetting of the relationship between ‘big tech’ and the societal pressures manifested in new laws, institutions and norms affecting the sector,” Clegg wrote.
In his note, Clegg said that former Federal Communications Commission chairman Kevin Martin would replace Kaplan as Meta’s vice president of global policy. He mentioned that Kaplan would work closely with David Ginsburg, the company’s vice president of global communications and public affairs.
“Nick: I’m grateful for everything you’ve done for Meta and the world these past seven years,” Meta CEO Mark Zuckerberg said in a statement. You “built a strong team to carry this work forward. I’m excited for Joel to step into this role next given his deep experience and insight leading our policy work for many years.”