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
Bloomberg Creative | Bloomberg Creative Photos | Getty Images
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
Technology
Meta set to unveil first consumer-ready smart glasses with a display, wristband next month
Meta CEO Mark Zuckerberg makes a keynote speech at the Meta Connect annual event at the company’s headquarters in Menlo Park, Calif., on Sept. 25, 2024.
Manuel Orbegozo | Reuters
Meta is planning to use its annual Connect conference next month to announce a deeper push into smart glasses, including the launch of the company’s first consumer-ready glasses with a display, CNBC has learned.
That’s one of the two new devices Meta is planning to unveil at the event, according to people familiar with the matter. The company will also launch its first wristband that will allow users to control the glasses with hand gestures, the people said.
Connect is a two-day conference for developers focused on virtual reality, AR and the metaverse. It was originally called Oculus Connect and obtained its current moniker after Facebook changed its parent company name to Meta in 2021.
The glasses are internally codenamed Hypernova and will include a small digital display in the right lens of the device, said the people, who asked not to be named because the details are confidential.
The device is expected to cost about $800 and will be sold in partnership with EssilorLuxottica, the people said. CNBC reported in October that Meta was working with Luxottica on consumer glasses with a display.
Meta declined to comment. Luxottica, which is based in France and Italy, didn’t respond to a request for comment.
Meta began selling smart glasses with Luxottica in 2021 when the two companies released the first-generation Ray-Ban Stories, which allowed users to take photos or videos using simple voice commands. The partnership has since expanded, and last year included the addition of advanced AI features that made the second generation of the product an unexpected hit with early adopters.
Luxottica owns a number of glasses brands, including Ray-Ban, and licenses many others like Prada. It’s unclear what brand Luxottica will use for the glasses with AR, but a Meta job listing posted this week said the company is looking for a technical program manager for its “Wearables organization,” which “is responsible for the Ray-Ban AR glasses and other wearable hardware.”
In June, CNBC reported that Meta and Luxottica plan to release Prada-branded smart glasses. Prada glasses are known for having thick frames and arms, which could make them a suitable option for the Hypernova device, one of the people said.
Last year, Meta CEO Mark Zuckerberg used Connect to showcase the company’s experimental Orion AR glasses.
The Orion features AR capabilities on both lenses, capable of blending 3D digital visuals into the physical world, but the device served only as a prototype to show the public what could be possible with AR glasses. Still, Orion built some positive momentum for Meta, which since late 2020 has endured nearly $70 billion in losses from its Reality Labs unit that’s in charge of building hardware devices.
With Hypernova, Meta will finally be offering glasses with a display to consumers, but the company is setting low expectations for sales, some of the sources said. That’s because the device requires more components than its voice-only predecessors, and will be slightly heavier and thicker, the people said.
Meta and Ray-Ban have sold 2 million pairs of their second-generation glasses since 2023, Luxottica CEO Francesco Milleri said in February. In July, Luxottica said that revenue from sales of the smart glasses had more than tripled year over year.
As part of an extension agreement between Meta and Luxottica announced in September, Meta obtained a stake of about 3% in the glasses company according to Bloomberg. Meta also gets exclusive rights to Luxottica’s brands for its smart glasses technology for a number of years, a person familiar with the matter told CNBC in June.
Although Hypernova will feature a display, those visual features are expected to be limited, people familiar with the matter said. They said the color display will offer about a 20 degree field of view — meaning it will appear in a small window in a fixed position — and will be used primarily to relay simple bits of information, such as incoming text messages.
Andrew Bosworth, Meta’s technology chief, said earlier this month that there are advantages to having just one display rather than two, including a lower price.
“Monocular displays have a lot going for them,” Bosworth said in an Instagram video. “They’re affordable, they’re lighter, and you don’t have disparity correction, so they’re structurally quite a bit easier.”
‘Interact with an AI assistant’
Other details of Meta’s forthcoming glasses were disclosed in a July letter from the U.S. Customs and Border Patrol to a lawyer representing Meta. While the letter redacted the name of the company and the product, a person with knowledge of the matter confirmed that it was in reference to Meta’s Hypernova glasses.
“This model will enable the user to take and share photos and videos, make phone calls and video calls, send and receive messages, listen to audio playback and interact with an AI assistant in different forms and methods, including voice, display, and manual interactions,” according to the letter, dated July 23.
The letter from CBP was part of routine communication between companies and the U.S. government when determining the country of origin for a consumer product. It refers to the product as “New Smart Glasses,” and says the device will feature “a lens display function that allows the user to interface with visual content arising from the Smart Features, and components providing image data retrieval, processing, and rendering capabilities.”
CBP didn’t provide a comment for this story.
The Hypernova glasses will also come paired with a wristband that will use technology built by Meta’s CTRL Labs, said people familiar with the matter. CTRL Labs, which Meta acquired in 2019, specializes in building neural technology that could allow users to control computing devices using gestures in their arms.
The wristband is expected to be a key input component for the company’s future release of full AR glasses, so getting data now with Hypernova could improve future versions of the wristband, the people said. Instead of using camera sensors to track body movements, as with Apple’s Vision Pro headset, Meta’s wristband uses so-called sEMG sensor technology, which reads and interprets the electrical signals from hand movements.
One of the challenges Meta has faced with the wristband involves how people choose to wear it, a person familiar with the product’s development said. If the device is too loose, it won’t be able to read the user’s electrical signals as intended, which could impact its performance, the person said. Also, the wristband has run into issues in testing related to which arm it’s worn on, how it works on men versus women and how it functions on people who wear long sleeves.
The CTRL Labs team published a paper in Nature in July about its wristband, and Meta wrote about it in a blog post. In the paper, the Meta team detailed its use of machine learning technology to make the wristband work with as many people as possible. The additional data collected by the upcoming device should improve those capabilities for future Meta smart glasses.
“We successfully prototyped an sEMG wristband with Orion, our first pair of true augmented reality (AR) glasses, but that was just the beginning,” Meta wrote in the post. “Our teams have developed advanced machine learning models that are able to transform neural signals controlling muscles at the wrist into commands that drive people’s interactions with the glasses, eliminating the need for traditional—and more cumbersome—forms of input.”
Bloomberg reported the wristband component in January.
Meta has recently started reaching out to developers to begin testing both Hypernova and the accompanying wristband, people familiar with the matter said. The company wants to court third-party developers, particularly those who specialize in generative AI, to build experimental apps that Meta can showcase to drum up excitement for the smart glasses, the people said.
In addition to Hypernova and the wristband, Meta will also announce a third-generation of its voice-only smart glasses with Luxottica at Connect, one person said.
That device was also referenced by CBP in its July letter, referring to it as “The Next Generation Smart Glasses.” The glasses will include “components that provide capacitive touch functionality, allowing users to interact with the Smart Glasses through touch gestures,” the letter said.
WATCH: Elon Musk asked Zuckerberg to join xAI bit for OpenAI
Google CEO Sundar Pichai gestures to the crowd during Google’s annual I/O developers conference in Mountain View, California on May 20, 2025.
Camille Cohen | Afp | Getty Images
Alphabet shares rose on a Friday report that Apple is in early discussions to use Google’s Gemini AI models for an updated version of the iPhone-maker’s Siri assistant.
The company’s shares rose more than 3% on the Bloomberg report, which said Apple recently inquired of Google about the potential for the search giant to build a custom AI model that would power a new Siri that could launch next year. Google’s flagship AI models Gemini have consistently been atop key benchmarks for artificial intelligence advancements while Apple has struggled to define its own AI strategy.
The reported talks come as Google faces potential risk to its lucrative search deals with Apple. This month, a U.S. judge is expected to rule on the penalties for Google’s alleged search monopoly, in which the Department of Justice recommending eliminating exclusionary agreements with third parties. For Google, that refers to its search position on Apple’s iPhone and Samsung devices — deals that cost the company billions of dollars a year in payouts.
The Android maker has said its Gemini models will become the default assistant on Android phones. Google this year has showed Gemini doing capabilities that go beyond Siri’s capabilities, such as summarizing videos.
Craig Federighi, who oversees Apple’s operating systems, said at last year’s developer conference that the iPhone maker would like to add other AI models for specific purposes into its Apple Intelligence framework. Federighi specifically mentioned Google, whose Gemini can now hold conversations with users and handle input that comes from photos, videos, voice or text. Apple is also exploring partnerships with Anthropic and OpenAI as it tried to renew its AI roadmap, according to a June Bloomberg report.
Documents revealed during Google’s remedy trial showed executives from Apple were involved in the negotiations over using Google’s Gemini for a potential search option.
Google declined to comment.
WATCH: Apple explores using Google Gemini AI to power revamped Siri, reports say
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