Proposal Takes Aim At Discriminatory Online Ad Practices

By Justin Wise | February 7, 2021, 8:02 PM EST

The civil rights implications of discriminatory online targeted advertising practices are at the center of a draft proposal to amend a federal law regarded by its proponents as the bedrock of the modern internet, but which critics say shields major tech platforms from accountability.

A so-called discussion draft of the legislation, which has yet to be formally introduced, strikes at a narrow aspect of Section 230 of the Communications Decency Act, which immunizes websites from liability for third-party posts, as well as for their good-faith efforts to moderate content on their platforms. Both Republicans and Democrats have pushed for overhauling the law, prompting concern from advocates who say it could upend the way information flows on the internet.

The draft from U.S. Rep. Yvette Clarke's, D-N.Y., is different from other proposals in that it takes aim at one aspect of the modern web: targeted advertising and its effect on civil rights laws. Targeted ads, which are facilitated by major platforms like Facebook, Twitter and Google, enable third parties to target audiences through algorithms.

The tools offered have sparked allegations of civil rights abuses in areas like housing. A 2018 lawsuit, for example, claimed Facebook enabled landlords and real estate brokers to exclude people with children, women and users with interests based on disability and national origin from receiving ads, prompting the company in 2019 to implement a series of restrictions on how it manages housing, employment and credit ads.

Tech companies have previously argued in court that Section 230 protects them from facing liability for advertising they host. As it's outlined, Clarke's draft bill would seek to change that in part, stipulating that platforms would not be shielded by Section 230 for third-party targeted ad abuses that violate federal, state or local laws against discrimination.

Clarke claimed in a statement that harmful ad practices targeting communities of color and other underrepresented groups are "increasing in scale." But the proposal comes as legal and technology experts are split over whether these types of exemptions would have the desired effect.

Gaurav Laroia, senior policy counsel at media and tech advocacy group Free Press, told Law360 that it's an open question whether Section 230 prevents "the application of federal civil rights law to targeted advertising." The hope is that this type of legislation would settle the question, he said, noting that it would ensure platforms are held accountable for tools they build and offer — which he says should be separate from hosting third-party content.

"If they are parading the tools, then they should be responsible for how those tools are used and the effects," Laroia said. "Even if they didn't purposefully build a set of targeting tools for housing advertisements, for example, its effect can be discriminatory. That's why we have fair housing laws. There has to be a higher duty of care."

Facebook has faced the most scrutiny in recent years over targeted advertising, and it has implemented a number of updates to its ad system. But a 2020 report by The Markup, a nonprofit focused on the ethics and impacts of technology, found that discriminatory ads still appeared on the platform.

A 2019 study from the nonprofit tech group Upturn and researchers with Northeastern University and the University of Southern California found that housing and employment ads delivered on Facebook can also skew to certain subgroups, even when targeting is not intended, raising questions about liability in the event of illegal discrimination.

Courts have not weighed in on ad delivery systems and liability under Section 230 but have on separate, related issues. The Ninth Circuit ruled in 2008 in Fair Housing Council v. Roommates.com that the law did not shield a website from liability for content it created — a menu allowing users to set roommate preferences on gender, sexual orientation and family situation, which plaintiffs alleged violated fair housing laws.

Eric Goldman, a Santa Clara University law professor who regularly writes on Section 230, told Law360 that Clarke's discussion draft seems entirely about the "drama that Facebook has had with allegedly discriminatory advertising." And he sees problems with that approach, given the company's efforts "to do the right thing."

"One thing I'm confused about is what the bill drafters think is going to happen in response to this bill, even if we all agree what we'd like the outcome to be," he said, citing previous 2018 legislation that removed Section 230 protections for sex trafficking charges and conduct facilitating prostitution.

That bill's passage led major platforms like Craigslist to shut down certain channels and ban a broad array of content. Critics say it made it harder for law enforcement to locate victims and exposed sex workers to more danger.

Mike Masnick, editor of the tech blog Techdirt, wrote in a Jan. 28 blog post that Clarke's proposal could lead to a similar response, including enhanced restrictions on targeting tools for ads that don't have discriminatory outcomes.

Such a policy would also be weaponized by hostile actors, Goldman said.

"We're seeing a groundswell of white nationalists using civil rights law against internet services for removing their content or accounts," he said. "One could imagine that a white nationalist or bigot would adopt the new ground to say, you didn't show me ads because I'm a white male."

For those reasons, Goldman said the benefits and harms must be fully addressed before seriously considering this type of legislation.

Clarke's draft was open for public comment until Friday, and it's unclear when she plans to officially move on the legislation. Rep. Mike Doyle, D-Pa., chair of the House's communications and tech subcommittee, has signaled that the bill could be a part of a "comprehensive package" of proposals aimed at reforming Section 230. Sen. Mark Warner, D-Va., also announced Friday that he was putting forth legislation targeting the law.

Reform attempts come as Democrats argue that platforms aren't doing enough to police hate speech and misinformation and as Republicans argue sites shouldn't receive protections if they censor content. The temperature of the debate has shot up in recent years, but Free Press' Laroia claims much of that was driven by former President Donald Trump and his antics.

"We don't have to have hearings about whether Twitter should be trying to editorialize," he said. "We can move on from that and talk about more real harms."

--Editing by Breda Lund.

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