Facebook May Be Breaking The Law With Racial Ad Targeting

Facebook’s targeted ads, which allow advertisers to shape who will see them based on demographic information, might be breaking the law.

ProPublica revealed the potential violation of the Fair Housing Act of 1968 on Friday with a report that looked at how the social media giant allows advertisers to exclude who will see their ad based on their “ethnic affinity.” (That’s not a user’s race per se but, rather Facebook’s best guess based on users’ behavior.) The Fair Housing Act prevents people from refusing to allow certain classes of people to buy or rent housing, and from discriminating against them in advertisements for same.

ProPublica placed an ad for a forum about how to fight illegally high rents on Facebook, only to find that it could “target” the users who would see it by eliminating people based on their “ethnic affinities.” Propublica then chose to exclude people with African American, Asian American, and Hispanic affinities from seeing the ad, which was also targeted to people interested in home-buying and house-hunting. This, a civil rights lawyer they showed the advertisement to said, was a “blatant” violation of the Fair Housing Act.

In Facebook’s defense, the advertisement was for a forum related to rent prices as opposed to a dwelling for rent or sale, so the Fair Housing Act may not apply here (though ProPublica’s experiment does show that there’s certainly the potential for someone who was posting an ad for a home sale targeted to people interested in home-buying and house-hunting to also exclude people with affinities for certain ethnicities). And Facebook does have ad policies against using ad targeting to discriminate against people. They’re supposed to be used to help advertisers reach the audience that is most likely to be interested in their product, and therefore spend less money on ads posted on timelines of people who would never buy it.

But, as a recent profile of Donald Trump’s campaign strategies in Bloomberg Businessweek revealed, advertisers do use targeting to ensure that certain races (or at least people with an “affinity” for them) see ads and other ones don’t. The Trump campaign admitted to sending anti-Clinton ads that quote Clinton’s 1996 statement about “super predators” to black Facebook users, hoping it would discourage them from voting for her. This kind of targeting isn’t new; advertisers have always targeted their ads for shows, magazines, or to be placed in locations where they knew certain races would be more likely see them. But that didn’t prevent other races from seeing them; it just made it less likely that they would. The problem now is that Facebook and other social media platforms’ ability to hyper-focus ad targeting in this way means that certain people won’t see ads at all.

After ProPublica’s article came out, Facebook posted a message explaining its approach to “multicultural marketing,” and how it’s designed to help advertisers reach out to diverse communities rather than exclude them.

“We take a strong stand against advertisers misusing our platform,” Facebook said in a statement. “Our policies prohibit using our targeting options to discriminate, and they require compliance with the law. We take prompt enforcement action when we determine that ads violate our policies.”

Facebook also told ProPublica it will be moving the “ethnic affinity” selection out of the “demographics” targeting category.