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Targeted advertising is discriminatory per definition: it allows the advertiser to discriminate between different types of targets. That is actually the objective.
“Discrimination” of course has an extended meaning when it concerns ethnicity, sex, etc… But it is just an extension of the standard meaning: there is no real difference between telling apart people based on their age or based on their ethnicity/sex/etc… There is a legal difference, but we could chose to extend that legal difference to other kinds of “discrimination”, for example prohibit discrimination when based on age.
There are of course perfectly valid reasons with ample historical evidence why discrimination based on ethnicity or sex was made illegal. I am not disputing that.
What I am saying is that any kind of discrimination in marketing has a potential of problems. Targeted advertising is used to maximise profits (of course). The naive explanation is that it brings products to people who want them will find them. The reality is less naive:
- it brings products with the highest margins to people who have little choice (for example, because they don’t have access to transportation to shop around)
- it increases class differences, for example by only bringing certain brands to certain demographics
- it was demonstrated to influence elections
All this is linked. For example, if demographics linked to a given ethnicity have less access to transportation and therefore less capability to shop around and be informed about prices and differences in product qualities, targeted advertising to that demographic, even if not chosen by ethnicity but by money, address, etc… will help cement a situation where they pay more for lower quality products. It increases revenue for the sellers.
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Prove it. What I see is Facebook made the ability to group people by all kinds of data so they could be targeted and then at some point added the ability to use a Boolean “not.” So if you have a product that appeals to very safety-conscious people there may not be an affinity group that matches but you could say “not extreme sports fans.”
That some advertisers intended to discriminate against protected classes should be unsurprising but it is still the advertiser’s offense, not Facebook’s. I’m not saying Facebook shouldn’t make a lot of effort to prevent advertisers from discriminating, they should, but lumping Facebook in with the people actually discriminating is bullshit.
And about the last part, about pseudo-redlining by targeting specific zip codes, is the state going to sue the Post Office as well?
Age discrimination is already prohibited.
Take that up with the law, then, because both the advertiser and the publishing platform are on the hook for discriminatory advertisements. The advertiser because they violated the law, and the publisher (in this case, Facebook) because they abetted that violation.
42 U.S. Code § 3604 - Discrimination in the sale or rental of housing and other prohibited practices:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—
a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
(emphasis added)
If you’re going to go into the business of real estate advertising, it is your responsibility to make sure that the tools you build and the options you provide to advertisers comport with all applicable laws and regulations. Ignorance of the law is not an excuse.
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Thank you for the citation. I was thinking about discrimination more broadly and treating them as equivalent in a moral sense, as I think Cory has done in this post.
I’m okay with legal requirements for advertisements in critical cases like housing and employment. I see that the law is not limited to advertisements but includes notices and statements which sounds like it could describe anything put online. It’s one thing to have requirements for paid advertising on online platforms, even if they’ll mean having to have human review, you can’t have the same strictures for literally everything. Individuals are responsible for what they put online. When they do so on a platform, perhaps there could be something like the DMCA safe harbor provision that makes that clear; I don’t know if platforms could have a takedown procedure, they can’t be experts about every law in every jurisdiction an individual’s speech may violate.
I noticed age discrimination is not prohibited. That’s probably to allow for advertising of housing for senior citizens, but it could also mean advertising that’s only shown to people in their 20s would also be legal.
I’m on my phone so maybe I missed it, but usually such laws have exceptions for when the property is within one’s own home. Basically, you shouldn’t have to live with anyone you don’t want to even if your reasons are racist, sexist, etc. I don’t think anyone would say a woman who wants to sublet a second bedroom can’t say “women only.” A platform should likewise allow the individual to state or advertise their preference.
c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Note, however, that there’s nothing in the law requiring notices, statements, or advertisements to be delivered or visible to members of protected groups. And that’s not a new phenomenon: when that law was written I could easily have placed an ad in Ebony or postered only white neighborhoods, and as long as the ad itself didn’t indicate a preference, limitation, or discrimination that was legally fine. (More commonly, can you put a “Room for rent” notice on a church community board or is that religious discrimination? Or, in a town with a black newspaper and a daily (as used to be common), can you advertise in the black paper?)
It doesn’t appear, to my non-lawyerly eyes, that this is in fact the law Facebook ran afoul of.
I think what makes Facebook different from your average newspaper or notice board is that Facebook allows you to create de facto “no blacks” or “no women” ads, even if you never put any discriminatory language in the actual ad. With a newspaper, magazine, radio station, etc. You could probably make the argument that a “room for rent” message on church bulletin board is a different sort of notice than a general ad placement for an apartment; I can ask around with my friends to see if anyone wants to split rent and move into a new apartment with me without falling afoul of the Fair Housing Act, for example. Heck, you can probably skirt around the law even if you’re trying to be discriminatory with your public ad buys by making the argument that anyone who wants to pick up that magazine or tune into that radio station has the opportunity to see/hear the ad, as long as you’re not putting discriminatory intent into the ad itself (this defense will probably fall apart if someone notices a pattern of effectively-discriminatory ad placement, but in those cases I think the liability would rest entirely with the ad buyer). With Facebook, however, that opportunity can be explicitly denied to certain people through the use of filters that target protected groups.
I would agree that Facebook is just a neutral party, except that we’re not talking about regulating people’s individual ability to post to their friend group saying they need a roommate. We’re talking about Facebook going into the business of selling ad space (like a newspaper’s classified section) and operating as a commercial entity. I would absolutely expect Facebook to comply with all of the relevant legal requirements for every jurisdiction in which they offer ad placement services, because businesses should comply with the law. “It’s on the computer” and “but it’s hard to operate a global mega-corporation if we have to pay attention to every country’s particular requirements for doing business” are not valid excuses.
“Move fast and break things” cannot and must not include “the law” in the list of things to be broken.
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