The Department of Housing and Urban Development announced this week that it is charging Facebook with violating the Fair Housing Act by “encouraging, enabling, and causing housing discrimination through the company’s advertising platform.”
The action follows HUD’s investigation of a secretary-initiated complaint filed in August 2018. The federal agency alleges Facebook unlawfully discriminates based on race, color, national origin, religion, familial status, sex, and disability by restricting who can view housing-related ads on Facebook’s platforms and across the internet.
HUD also claims Facebook mines extensive data about its users and then uses that data to determine which of its users view housing-related ads based, in part, on these protected characteristics. “Facebook is discriminating against people based upon who they are and where they live,” said HUD Secretary Ben Carson. “Using a computer to limit a person’s housing choices can be just as discriminatory as slamming a door in someone’s face.”
“Even as we confront new technologies, the fair housing laws enacted over half a century ago remain clear—discrimination in housing-related advertising is against the law,” added HUD General Counsel Paul Compton. “Just because a process to deliver advertising is opaque and complex doesn’t mean that it exempts Facebook and others from our scrutiny and the law of the land. Fashioning appropriate remedies and the rules of the road for today’s technology as it impacts housing are a priority for HUD.”
The Fair Housing Act prohibits discrimination in housing and in housing-related services, including online advertisements, based on race, color, national origin, religion, sex, disability, or familial status.
According to HUD’s charges, Facebook enabled advertisers to exclude people whom Facebook classified as: parents; non-American-born; non-Christian; interested in accessibility; interested in Hispanic culture; or a wide variety of other interests that closely align with the Fair Housing Act’s protected classes. HUD is alleging Facebook enabled advertisers to exclude people based upon their neighborhood by drawing a red line around those neighborhoods on a map. It also, allegedly, gave advertisers the option of showing ads only to men or only to women.
The formal charges further assert that Facebook also uses the protected characteristics of people to determine who will view ads regardless of whether an advertiser wants to reach a broad or narrow audience. HUD claims Facebook combines data it collects about user attributes and behavior with data it obtains about user behavior on other websites and in the non-digital world. It then allegedly uses machine learning and other prediction techniques to classify and group users to project each user’s likely response to a given ad, and in doing so, may recreate groupings defined by their protected class.
By grouping users who have similar attributes and behaviors (unrelated to housing) and presuming a shared interest or disinterest in housing-related advertisements, Facebook’s mechanisms function just like an advertiser who intentionally targets or excludes users based on their protected class, HUD says.
HUD seeks to address unresolved fair housing issues regarding Facebook’s advertising practices and to obtain appropriate relief for the harm Facebook caused and continues to cause.
In August 2018, the Department of Justice, joined by HUD, filed a statement of interest in the U.S. District Court for the Southern District of New York on behalf of a number of private litigants challenging Facebook’s advertising platform.
HUD’s charges will be heard by a United States administrative law judge unless any of the involved parties elects to have the case heard in federal district court. If an administrative law judge finds after a hearing that discrimination has occurred, he or she may award damages for harm caused by the discrimination. The judge may also order injunctive relief and other equitable relief, as well as payment of attorney fees. In addition, the judge may impose fines to vindicate the public interest. If the matter is decided in federal court, the judge may also award punitive damages.
The accusations against Facebook are not new ones. Earlier this month, Facebook agreed to pay $5 million and implement a series of anti-discrimination policies to settle a lawsuit brought against it by national fair housing advocates.
One year earlier, the National Fair Housing Alliance, the American Civil Liberties Union, the Communication Workers of America, and others filed the related lawsuit against Facebook in federal court in New York City, alleging that its advertising platform enabled landlords and real estate brokers to exclude people of color, families with children, women, people with disabilities, the elderly, and other protected groups from receiving housing ads. The lawsuit alleged Facebook created prepopulated lists that made it possible for its housing advertisers to “exclude” (in the company’s own terminology) certain demographics from seeing ads for real estate, apartment rentals, employment opportunities, and credit services/products.
On March 19, the housing advocates settled a lawsuit with Facebook that, in their words, “will drive unprecedented and sweeping changes across its advertising platform.” They say their agreement will “set new standards across the tech industry concerning company policies that intersect with civil rights laws.” As part of the settlement agreement, the NFHA will work with Facebook to develop an in-house fair housing training program for company leadership and staff. Housing advocates will also monitor Facebook’s advertising platform on a continual basis and work with them “to support programs that expand fair housing opportunities throughout the country.”
“As the largest digitally-based advertising platform and a leader in tech, Facebook has an obligation to ensure that the data it collects on millions of people is not used against those same users in a harmful manner,” Lisa Rice, president and CEO of NFHA, said in a statement.
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