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
An image of a Quantix drone made by AeroVironment.
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AeroVironment shares fell 7% Tuesday after the defense contractor said it plans to offer $750 million in common stock and $600 million in convertible senior notes due in 2030 to repay debt.
The drone maker said it would use leftover funding for general purposes such as boosting manufacturing capacity.
AeroVironment shares have soared 85% this year, ballooning its market value to about $13 billion.
Last week, shares of the Arlington, Virginia-based company rallied on strong fourth-quarter results, lifting higher as CNBC’s Jim Cramer called it the “next Palantir of hardware.”
Last month, the company also closed its $4.1 billion acquisition of space-related defense tech company Blue Halo.
Earlier this month, President Donald Trump signed an executive order intended to boost drone production in the U.S. and crack down on unauthorized uses.
The company also has a high short interest level, which may have contributed to some of the recent gains, creating a short squeeze. This phenomenon occurs when a stock price surges, forcing those shorting the stock to purchase shares to cover their positions and prevent losses.
Aerovironment 1 month stock chart
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Internet firm Cloudflare will start blocking artificial intelligence crawlers from accessing content without website owners’ permission or compensation by default, in a move that could significantly impact AI developers’ ability to train their models.
Starting Tuesday, every new web domain that signs up to Cloudflare will be asked if they want to allow AI crawlers, effectively giving them the ability to prevent bots from scraping data from their websites.
Cloudflare is what’s called a content delivery network, or CDN. It helps businesses deliver online content and applications faster by caching the data closer to end-users. They play a significant role in making sure people can access web content seamlessly every day.
Roughly 16% of global internet traffic goes directly through Cloudflare’s CDN, the firm estimated in a 2023 report.
“AI crawlers have been scraping content without limits. Our goal is to put the power back in the hands of creators, while still helping AI companies innovate,” said Matthew Prince, co-founder and CEO of Cloudflare, in a statement Tuesday.
“This is about safeguarding the future of a free and vibrant Internet with a new model that works for everyone,” he added.
What are AI crawlers?
AI crawlers are automated bots designed to extract large quantities of data from websites, databases and other sources of information to train large language models from the likes of OpenAI and Google.
Whereas the internet previously rewarded creators by directing users to original websites, according to Cloudflare, today AI crawlers are breaking that model by collecting text, articles and images to generate responses to queries in a way that users don’t need to visit the original source.
This, the company adds, is depriving publishers of vital traffic and, in turn, revenue from online advertising.
Tuesday’s move builds on a tool Cloudflare launched in September last year that gave publishers the ability to block AI crawlers with a single click. Now, the company is going a step further by making this the default for all websites it provides services for.
OpenAI says it declined to participate when Cloudflare previewed its plan to block AI crawlers by default on the grounds that the content delivery network is adding a middleman to the system.
The Microsoft-backed AI lab stressed its role as a pioneer of using robots.txt, a set of code that prevents automated scraping of web data, and said its crawlers respect publisher preferences.
“AI crawlers are typically seen as more invasive and selective when it comes to the data they consumer. They have been accused of overwhelming websites and significantly impacting user experience,” Matthew Holman, a partner at U.K. law firm Cripps, told CNBC.
“If effective, the development would hinder AI chatbots’ ability to harvest data for training and search purposes,” he added. “This is likely to lead to a short term impact on AI model training and could, over the long term, affect the viability of models.”
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