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Facebook’s targeted ads are discriminatory, should be held liable: US DoJ

The United States Department of Justice has sided with (pdf) four housing alliances and housing groups after they accused Facebook of being discriminatory — by excluding people based on sex, race, gender, Zip code or religion – through its targeted ads. These practices were allegedly used by landlords and property dealers on the platform.

The National Fair Housing Alliance, Fair Housing Justice Center Inc, Housing Opportunities Project for Excellence Inc and Fair Housing Council of Greater San Antonio filed the complaint against Facebook.

The US Housing and Urban Development (HUD) department has now filed a complaint against Facebook, accusing the company of housing discrimination and clear violation of the federal fair housing laws, implemented as part of the Civil Rights Act 1968. The complaint by the HUD came on the same day the DoJ targeted Facebook on similar issues. Fair housing activists have told a district court in the US that people have been discriminated even on whether the person had English as Second Language or a Disabled Parking Permit.

Facebook’s ad tools leaving out certain criteria

The crux of the complaint is that Facebook’s targeted advertising tools such as “Boosts” and “Ad Manager” have enabled discrimination by providing property owners and dealers with a mechanism to include some and exclude others. These tools are popularly used to target or narrow down ads and create a custom target audience, thus including or excluding people who will see the ad (on their News feeds) based on the platter of information collected by Facebook. Housing rights activists have argued that both Boosts and Ads Manager allow advertisers, including landlords, developers, and housing service providers, to restrict which Facebook users will see their ads based on criteria that are “explicitly discriminatory.”

“The Fair Housing Act prohibits housing discrimination, including those who might limit or deny housing options with a click of a mouse,” said Anna María Farías, assistant secretary at HUD. She added, “When Facebook uses the vast amount of personal data it collects to help advertisers to discriminate, it’s the same as slamming the door in someone’s face.”

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Facebook says that it is a platform

Facebook’s defense so far has been that it is merely an “interactive computer service” or roughly speaking, a distribution platform, and not a publisher. It asserted that it enjoys immunity under the Communications Decency Act which shields distribution platforms from the actions/content of third parties. This is based on the logic that platforms do not develop or create the content being distributed. The Justice Department, however, has found that Facebook is an “information content provider” which means that Facebook acts like a publisher to a certain extent. According to the US government, Facebook has contributed enough via its targeted ad tools for it to qualify as information content provider; it has developed and curated the content at hand, and not merely hosted it. And hence it is liable.

Facebook can be a publisher and a platform: US DoJ

The US Justice Department is itself questioning whether or not Facebook is a publisher. It has for now justified that it can be either or both, depending on Facebook’s contribution in curating or developing content.

A single website could therefore be an interactive computer service in some respects, and thus entitled to CDA immunity, but an information content provider in others, and thus not immune:

A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.

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