- Case
- Henderson v. Source for Public Data, L.P.
- Court
- U.S. Court of Appeals for the Fourth Circuit
- Citation
- 53 F.4th 110 (4th Cir. 2022) (No. 21-1678)
- Decided
- November 3, 2022
- Bottom line
- An online data seller that reshapes public records into background reports cannot use Section 230 to avoid FCRA duties to give you your file and report accurately.
Background
Section 230(c)(1) of the Communications Decency Act says that no provider or user of an interactive computer service “shall be treated as the publisher or speaker of any information provided by another information content provider.” It is the law that generally protects websites from liability for what their users post.
PublicData.com, according to the plaintiffs, collects criminal, civil, voting, driving, and licensing records from government sources, puts them in its own format, and sells access. For criminal records, the complaint alleged the company “distill[s]” a person’s history into “glib statements,” strips identifying details from the charges, and substitutes its own summaries. The plaintiffs alleged the company does not look for or fix errors, ignores correction requests, and sells some 50 million searches and reports a year, including to employers and creditors.
Tyrone Henderson, George Harrison, and Robert McBride each asked PublicData for their records and did not get them. McBride also alleged a prospective employer used a PublicData report with misleading and incomplete criminal history, and that he was not hired. They sued under four FCRA provisions: § 1681g (file disclosure), § 1681b(b)(1) (employer certifications and rights summary), § 1681k(a) (public-record procedures for employment reports), and § 1681e(b) (reasonable procedures for accuracy). The district court held that Section 230 barred all four claims.
What the court held
The Fourth Circuit (Judges Agee, Richardson, and Quattlebaum) reversed in a published opinion by Judge Richardson. The court began: Section 230(c)(1) “is not a license to do whatever one wants online.”
The court read § 230(c)(1) to require three things: the defendant provides or uses an interactive computer service; the claim treats it as the publisher or speaker of information; and the information was provided by someone else. The plaintiffs conceded the first.
- Disclosure and certification claims (§§ 1681g and 1681b(b)(1)). These claims did not seek to hold PublicData liable as a publisher. They faulted it for failing to give consumers their own files and failing to obtain certifications and provide notices to employers. Section 230 did not apply.
- Accuracy claims (§§ 1681k(a) and 1681e(b)). The court adopted the “material contribution” test used by other circuits and held that a service is not responsible for developing unlawful information “unless they have gone beyond the exercise of traditional editorial functions and materially contributed to what made the content unlawful.” As alleged, the source records about McBride were not inaccurate; PublicData’s summaries and omissions introduced the inaccuracies. That made it an information content provider for those claims.
The court did not decide whether PublicData is a consumer reporting agency, leaving that and the merits for remand.
Our take
Henderson is the right answer, and the panel reached it unanimously. Section 230 was written to protect platforms that host other people’s speech, not companies whose product is a report they assemble and sell. If Section 230 covered PublicData’s business model, any background check company that sells reports online could argue for the same immunity.
The decision is careful in its limits. It turned on the plaintiffs’ allegations at the pleadings stage, and a different record could produce a different answer on the accuracy claims. Companies that pass along court records verbatim may still argue that Section 230 applies. But the disclosure ruling is broad: a duty to give a consumer their own file is not about publishing anything, so Section 230 is no defense to it.
What it means if your report is wrong
If you were turned down for a job or apartment and suspect an online people-search or background data site was involved, ask the employer or landlord which company supplied the report. You have a right to request your file from a consumer reporting agency, and to dispute inaccurate or incomplete criminal records, such as a dismissed charge reported without its outcome. Keep any denial letter and the report itself. A free case review can assess whether the company owed you FCRA duties, and there is no fee unless we win.
Sources
Primary
Commentary we reviewed
- Commentary: Fourth Circuit rules Communications Decency Act did not protect data aggregator from FCRA liability (Consumer Finance Monitor, Ballard Spahr)
- Commentary: Fourth Circuit addresses whether the CDA bars FCRA claims against online background report site (Morrison & Foerster)
Updated November 1, 2026. "Our take" is the firm's opinion. This page is general information, not legal advice, and later decisions may change the law.