By Nicole Siino

Facebook connects people of different ethnicities, backgrounds, and cultures throughout the world. Since its creation in February 2004, Facebook has grown into a multiple billion dollar, world-wide company with much of its wealth coming from advertisements. Last year, advertising revenue reached roughly $18 billion. People advertise on Facebook for a variety of reasons like to promote new products, employment opportunities, housing, and much more. Advertisers can target Facebook users based on their age, location, relationship status, and other identifying factors. Facebook has over 50,000 unique categories in which they place users. Advertisers love advertising on Facebook because of how it narrowly lets them reach target audiences.

In October 2016, ProPublica published a story that unveiled that Facebook allows advertisers to exclude certain groups it categorizes as “ethnic affinities.” While Facebook does not ask for user’s race, they categorize users into certain “ethnic affinities” based on their Facebook activities such as pages liked and posts they’ve engaged with. Essentially, advertisers can exclude people based on their race, gender, primary language spoken, and other factors that are banned by federal discrimination laws. ProPublica provided an example of how Facebook allows advertisers to discriminate. ProPublica purchased a Facebook advertisement to target users who were house hunting. ProPublica then had the option of excluding African American, Asian American, and Hispanic Facebook users from receiving the ad. ProPublica realized that the same exclusion option can be done for employment advertisements as well. These exclusions violate the Fair Housing Act of 1968 and the Civil Rights Act of 1964.

The Fair Housing Act states that it is illegal “to make, print, or publish…any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” The Civil Rights Act prohibits “printing or [publishing] notices or advertisements indicating prohibited preference, limitation, specification or discrimination” for employee recruitment. After ProPublica realized what was happening, they presented their findings to a prominent civil rights lawyer, and also the American Civil Liberties Union and four members of Congress, who scrutinized Facebook for allowing this to happen. A class-action law suit was filed in the Northern District of California. The suit alleged that Facebook allows illegal discrimination. The suit stated that there is no option to exclude white or Caucasian Americans from receiving certain advertisements. Facebook responded stating that they will vigorously defend themselves in this suit because multicultural marketing is a common occurrence in the advertising industry.

In November 2016, Facebook’s Vice President for U.S. Public Policy, and Chief Privacy Officer, Erin Egan, wrote a statement addressing ProPublica’s findings. Egan stated that Facebook’s “ethic affinities” option was created to allow brands to reach multicultural audiences. Egan explained that Facebook’s policies prohibit discriminatory uses of this feature. Egan stated that Facebook met with the concerned Congress members along with the New York State Attorney General to listen to their ideas on how Facebook can combat discrimination. As a result, Facebook created tools to find and automatically disable the use of “ethnic affinities” for housing, employment, and credit advertisements. Additionally, Facebook updated their Advertising Policies and require that advertisers agree to not engage in any sort of discrimination on Facebook. Egan claims that the updated policies clarify the purpose behind the “ethnic affinities” category and that Facebook will strictly enforce the new policies.

While Facebook is heading in the right direction, they still allow advertisers to utilize the exclusion function in other areas of advertising outside the housing and employment markets. This could be a potential problem in the future. Additionally, Facebook users can prevent advertisers from discriminating against certain “affinities” by removing an “affinities” associated with their profile.

 

Student Bio: Nicole Siino is a staff member on the Journal of High Technology Law. She is second-year law student at Suffolk University Law School. She holds a B.A. in History from Roger Williams University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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