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
Klarna is synonymous with the “buy now, pay later” trend of making a purchase and deferring payment until the end of the month or paying over interest-free monthly installments.
Nikolas Kokovlis | Nurphoto | Getty Images
Swedish fintech Klarna — primarily known for its popular “buy now, pay later” services — is launching its own Visa debit card, as it looks to diversify its business beyond short-term credit products.
The company on Tuesday announced that it’s piloting the product, dubbed Klarna Card, with some customers in the U.S. ahead of a planned countrywide rollout. Klarna Card will launch in Europe later this year, the firm added.
The move highlights an ongoing effort from Klarna ahead of a highly anticipated initial public offering to shift its image away from the poster child of the buy now, pay later (BNPL) trend and be viewed as more of an all-encompassing banking player. BNPL products are interest-free loans that allow people to pay off the full price of an item over a series of monthly installments.
“We want Americans to start to associate us with not only buy now, pay later, but [with] the PayPal wallet type of experience that we have, and also the neobank offering that we offer,” Klarna CEO Sebastian Siemiatkowski told CNBC’s “The Exchange” last month. “We are basically a neobank to a large degree, but people associate us still strongly with buy now, pay later.”
Klarna’s newly announced card comes with an account that can hold Federal Insurance Deposit Corporation (FDIC)-insured deposits and facilitate withdrawals — similar to checking accounts offered by mainstream banks.
Notably, Klarna Card is powered by Visa Flexible Credential, a service from the American card network that lets users access multiple funding sources — like debit, credit and BNPL — from a single payment card. It’s a debit card by default, but users can also toggle to one of Klarna’s “pay later” products, including “Pay in 4” and “Pay in 30 Days.”
Klarna is pushing deeper into a fiercely competitive consumer banking market. The U.S. banking industry is dominated by heavyweights such as JPMorgan Chase & Co and Bank of America, while fintech challengers like Chime have also attracted millions of customers.
While Klarna has a full banking license in the European Union, it does not have its own U.S. bank license. However, the firm says it’s able to offer FDIC-insured accounts through a partnership with WebBank, a small financial institution based in Salt Lake City, Utah.
WATCH: CNBC’s full interview with Klarna CEO Sebastian Siemiatkowski
Courtesy: Uber Eats
Uber said Monday that Pierre-Dimitri Gore-Coty, one of the company’s longest-tenured top executives and the head of is delivery business is leaving after almost 13 years.
Gore-Coty joined Uber as a general manager in France in 2012, and worked his way up to become vice president of mobility for the Europe and Middle East region four years later, according to his LinkedIn profile. He was named senior vice president of delivery in 2021.
“It’s hard to imagine Uber without Pierre, because there hasn’t been much Uber without Pierre,” CEO Dara Khosrowshahi said in a statement that was part of a regulatory filing. “As one of our first employees, he was a driving force behind our global Mobility expansion and stepped up to run Uber Eats just weeks before the first Covid lockdowns.”
The company didn’t say what Gore-Coty plans to do next.
Uber also said that Andrew Macdonald, the company’s senior vice president of mobility and business operations, will become chief operating officer, reporting to Khosrowshahi. Macdonald, 41, will oversee the company’s global mobility, delivery and autonomous businesses in addition to “key cross-platform functions like membership, customer support, safety, and more,” the filing said.
Gore-Coty is one of 11 people listed on Uber’s executive team page. Macdonald is the only one who has worked at the company longer. He joined in May 2012, four months before Gore-Coty, according to LinkedIn.
“These last nearly 13 years have been the ride of a lifetime,” Gore-Coty said in the statement. “It was a true team effort, and I’m so proud of what we’ve built and the impact we’ve had on daily life in cities around the world.”
Uber shares were little changed in extended trading after closing on Monday at $83.64. The stock is up 39% this year, while the Nasdaq is about flat.
Last month, the company reported first-quarter results that beat on earnings but missed on revenue. A month earlier, the Federal Trade Commission sued Uber, alleging that the company engaged in “deceptive billing and cancellation practices” related to its Uber One subscription service.
In an interview with CNBC’s “Squawk Box,” Khosrowshahi characterized the lawsuit as “a bit of a head-scratcher for us.”
WATCH: Record earnings and policy uncertainty will slow the equity rally.
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