Ramifications of the Facebook Lawsuits
Wednesday, June 19, 2019
Turning to Face(book) the Music: How Ad Discrimination Is Changing the Way Data Is Stored and Shared on Social Media
Let’s “face” it (terrible pun intended), 2019 hasn’t been a good year for Facebook thus far, but it has brought its legal woes upon itself. As part of the settlements reached in three civil rights cases and two complaints before the Equal Employment Opportunity Commission, Facebook has made significant changes to its ad tools to address ad discrimination on its platform and prevent advertisers from targeting users based on their race, gender, age, disability and other protected characteristics.
Before these cases gained public attention, Facebook served as a peerless source of demographic data for advertisers. The information it gathered on its users allowed advertisers to target ads for their products and services to an unprecedented level of precision. A company who wanted to sell its products to individuals in Little Rock, Arkansas, for example, could target a specific race, gender, and income level. But it wasn’t as though individuals failed to point out that this hyper-targeting could run afoul of civil rights laws. For years, civil rights groups warned Facebook—first in conversations, then in a series of lawsuits.
It came as no surprise when Facebook had to finally settle with the National Fair Housing Alliance, the Communications Workers of America, regional fair housing organizations, and individual consumers and job seekers, represented by the ACLU and two civil rights firms across five different cases over ad discrimination via the platform. And while Facebook didn’t act especially contrite (it never admitted wrongdoing), these cases did have an immediate impact on how data is stored and shared (or not), especially for industries protected by federal civil rights laws: credit, housing, and employment.
While legal to market feminine hygiene products to women, for example, federal civil rights laws prohibit targeting ads for housing, employment, and loans based on protected characteristics like race, gender, age, and disability. According to the well-known 2016 ProPublica investigation, advertisers were able to target ads in protected industries by race; for example, a job might only be shown to Caucasian men. A month later, the first civil rights lawsuit was brought against Facebook in California, a class-action suit filed on behalf of millions of people of color who were deprived of opportunities for housing, jobs, and credit due to ad tools on the Facebook platform.
In February 2017, Facebook announced that it had removed the ability to target groups in these three protected areas; however, this “fix” proved unsuccessful. In November 2017, it was discovered that protected groups of people, including African Americans, Jews, Spanish speakers, and people interested in wheelchair ramps, had been excluded from housing rental ads. This second story prompted another major suit by fair housing advocates in New York. In November 2018, the ACLU and the Communications Workers of America filed two complaints with the Equal Employment Opportunity Commission over gender and age discrimination in employment ads. Finally, bringing a long history of discrimination in the areas of housing, employment, and credit to a close, Facebook settled in the spring of 2019.
Following the hearing in April 2018, when Facebook CEO Mark Zuckerberg testified before Congress about the ProPublica stories and Facebook’s decision to fight the suits, the company agreed to a civil rights audit, a “holistic review” of possible civil rights issues on its platform. Furthermore, it hired Laura Murphy, the former head of the ACLU in Washington, to lead the project.
Nevertheless, Facebook’s sincerity is severely undercut by the fact that it pledged to take this issue seriously and dramatically reduce the ad targeting options in these protected categories in response to litigation. As other social media platforms play an increasing role in connecting us to economic opportunities (and therefore, information that is gathered and stored about those opportunities), it is vital that tech companies and businesses of all kinds prevent micro-targeting from becoming a means to perpetuate discriminatory behavior.
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