Fair Housing Enforcement in the Age of Digital Advertising: A Closer Look at Facebook's Marketing Algorithms
64 Boston Bar Journal Winter 2020
7 Pages Posted: 27 Feb 2020
Date Written: February 25, 2020
The increasing use of social media platforms to advertise rental opportunities creates new challenges for fair housing enforcement. The Fair Housing Act, 42 U.S.C. §§ 3601-19 (“FHA”) makes it unlawful to discriminate in the sale or rental of housing on the basis of race, color, religion, sex, familial status, national origin, and disability (“protected classes”). The FHA also prohibits discriminatory advertising, including distributing advertisements in a way that denies people information about housing opportunities based on their membership in a protected class. Accordingly, advertisers and digital platforms that intentionally or unintentionally cause housing advertisements to be delivered to users based on their membership in a protected class may be liable for violating the FHA.
In March 2018, in response to what they perceived to be discriminatory advertising on Facebook, the National Fair Housing Alliance (“NFHA”) and several housing organizations filed suit in federal court in New York City. The lawsuit alleged that Facebook’s advertising platform enabled landlords and real estate brokers to prevent protected classes from receiving housing ads. Facebook settled the suit on March 19, 2019. As part of the settlement, Facebook agreed to make a number of changes to its advertising portal so that housing advertisers can no longer choose to target users based on protected characteristics such as age, sex, race, or zip code. Facebook also committed to allow experts to study its advertising platform for algorithmic bias. It remains to be seen whether this agreement goes far enough in curtailing discriminatory advertising practices, as Facebook is confronting further enforcement action from a government watchdog in respect to similar issues. Moreover, a recent research study found that Facebook’s digital advertising platform may still lead to discriminatory outcomes despite changes already made.
On August 13, 2018, the Assistant Secretary for Fair Housing and Equal Opportunity filed a complaint with the Department of Housing and Urban Development (“HUD”) alleging that Facebook is in violation of the FHA. The Office of Fair Housing and Equal Opportunity determined in March, 2019 (the same time as the settlement agreement with NFHA) that reasonable cause exists and issued an official Charge against Facebook.
Notwithstanding these suits and administrative actions, it remains that, for fair housing claims to survive in court against media giants like Facebook, HUD and future plaintiffs must first successfully argue that Facebook is not protected by the Communications Decency Act (“CDA”).
Keywords: algorithmic fairness, algorithms, Communications Decency Act, CoreLogic, discrimination, disparate impact, Facebook, Facebook ads, Facebook algorithms, Herrick v. Grindr, housing discrimination, HUD, HUD lawsuit, Roommates.com, Section 230
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