I. Introduction

“Housing is the linchpin to civil rights.”[1]

The 1960s was a period of great social and political turmoil.[2] In response, then-President Lyndon B. Johnson formed the Kerner Commission.[3] The Commission determined the social unrest was largely caused by segregation and unequal housing opportunities, concluding that the “[n]ation [was] moving toward two societies, one black, one white—separate and unequal.”[4] In the midst of this, Dr. Martin Luther King Jr. was fighting to end unfair housing practices.[5] Sadly, Dr. King’s work was cut short when he was assassinated in 1968.[6] However, Dr. King’s contributions would not end with his death. To the contrary, after twice failing to pass housing discrimination legislation,[7] Congress adopted the Fair Housing Act (FHA), in part, as a “lasting memorial” to Dr. King.[8] The FHA sought to abolish housing discrimination, reduce segregation, and encourage integration by prohibiting discriminatory practices in the sale, rental, and advertising of housing.[9] In some ways, the FHA has achieved these goals.[10] But in others, the promise of the FHA is failing us.[11]

Today, 72% of apartment-seekers and 90% of home-buyers use the internet to facilitate their searches.[12] Online advertisers, desiring to market as effectively as possible, target consumers with precision through the use of sophisticated algorithms that collect, analyze, and sort data about the consumers.[13] Facebook, a market leader in this practice,[14] generates almost all of its revenue from advertisers who pay to market their goods, services, and products to Facebook users.[15] The social media platform collects data from the on- and off-site activity of its users and allows advertisers to “exclude” certain individuals from the audience of their advertisements on the basis of gender, familial status, and a litany of other categories created from this information.[16]

Facebook claims that it engages in this practice because it wants users to see advertisements that are “useful and relevant” to them.[17] But however beneficial to Facebook, the advertiser, or even the ad’s audience, this practice can lead to discriminatory outcomes when classes of people are targeted while others are disproportionally excluded.[18] Moreover, while exploiting user data to facilitate a targeted advertising scheme is not necessarily problematic for some types of advertisements, discriminatory housing advertisements that harm protected classes are illegal under the FHA.[19] Yet, liability for this type of conduct is unclear. The existing legal framework is not equipped to address contemporary housing discrimination even though the result is the same when the discrimination stems from modern technology like the internet and “big data”[20] rather than newspapers and flyers: protected groups suffer unfair and unjustified harm.[21]

Because of these changes in advertising technology, fair housing advocates worry that the FHA has lost its teeth.[22] Indeed, a 2014 report compiled at the request of then-President Obama found that “big data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace.”[23] This Comment explores this contemporary type of housing discrimination through the lens of National Fair Housing Alliance v. Facebook, Inc.,[24] a case that stands as a poignant illustration of just this problem. In this case, the plaintiffs accused Facebook of violating several provisions of the FHA by allowing housing advertisers to target their advertisements in discriminatory ways.[25] Part II provides the appropriate context for this discussion by examining the background of the FHA and Facebook. Part III introduces National Fair Housing Alliance, and Part IV analyzes the facts of that case under the existing legal framework to conclude that changes must be made if the FHA is to combat housing discrimination in online advertising. Finally, in Part V, I propose several solutions to remedy this gap in fair housing laws for future lawsuits involving targeted advertising.

II. Historical Background of the Fair Housing Act and Facebook, Inc.

The FHA was one of the last pieces of sweeping civil rights legislation passed in the 1960s.[26] Since then, the Act has effectively combated housing discrimination,[27] but with the internet embracing the housing market’s growth and expansion, this may no longer be the case. This Part sets the stage for this conflict by discussing the evolution and significance of the FHA and Facebook in turn.

A. The Fair Housing Act: A Promise to Eliminate Housing Discrimination and Promote Residential Integration

The fair housing movement gained momentum in 1965 when Dr. King was invited to a protest against housing discrimination in Chicago.[28] Thereafter, Dr. King formed the Chicago Freedom Movement in 1966 to combat inequities in housing practices.[29] During this time, Congress was considering fair housing legislation that would accomplish Dr. King’s goals, but the legislature ultimately failed at passing it.[30] Then, in 1968, Dr. King was assassinated.[31] The country erupted into riots[32] and the fight for fair housing was propelled forward.[33] Then-President Lyndon B. Johnson pushed for the FHA’s passage as a tribute to Dr. King’s lifelong efforts in civil rights advocacy.[34] Congressional fair housing advocates amplified President Johnson’s position by arguing that the elimination of housing discrimination would provide minorities with better employment and educational opportunities.[35] This time, these arguments would not fail. The FHA was passed that same year.[36]

The FHA prohibits discrimination in most phases of renting or buying a home.[37] The Act’s protection originally only extended to discrimination on the basis of “race, color, religion, [and] national origin,”[38] but amendments in 1974 and 1988 added sex, disability, and familial status as protected classes.[39] The FHA contains numerous provisions that prohibit specific types of conduct, but §§ 3604(a) and (c) are of particular importance with regard to targeted advertising. First, § 3604(a) is a general prohibition against refusing to sell or rent for discriminatory purposes.[40] Second, § 3604(c) explicitly “prohibits discriminatory notices, statements, and advertisements.”[41] The FHA also established the Department of Housing and Urban Development (HUD) as the Act’s administrative authority.[42] Under the Act, HUD can investigate housing discrimination,[43] file complaints against those alleged to have committed violations of the Act,[44] and refer cases to the Attorney General for civil action.[45] HUD is also given the ability to make administrative rules interpreting the FHA[46] that receive deference on judicial review.[47]

The FHA’s primary goals include the eradication of housing discrimination and the fostering of residential integration.[48] Today, however, critics question the ability of the FHA to accomplish these goals, considering the significant changes that have taken place in the housing market since the FHA’s inception over fifty years ago.[49] In fact, some have referred to the FHA as the “poor stepchild of federal civil rights legislation.”[50] The FHA’s drafters could not have contemplated the effect modern technology, “big data,” and websites such as Facebook would have on the market.[51] As a result, covert discrimination may escape liability even though such conduct is otherwise illegal under the FHA and in contravention of the Act’s purposes under the existing body of law.

B. Facebook, Inc.: An Advertising Powerhouse

In 2004, Mark Zuckerberg launched Facebook: a social media network that was exclusive to the Harvard community.[52] By 2006, Facebook had expanded beyond Zuckerberg’s alma mater to become an online platform that anyone could join.[53] After introducing the “newsfeed”[54] and “marketplace,”[55] Facebook gave users the ability to create their own advertisements for publication on the social media website.[56] To enhance the effectiveness of these advertisements, Facebook created tools that would allow advertisers to customize ads to user interests.[57] Facebook’s ad platform prioritizes which ads it will show users by matching users with the advertisers’ desired audiences.[58] Facebook gives advertisers the ability to determine their desired audiences with inclusion and exclusion features.[59] Data used to accomplish this and effectuate the distribution of the ads to the desired audience includes personal user data, user location, activity on Facebook, interactions with other businesses, and activity on other websites and applications.[60]

According to Facebook, its mission is to “give people the power to build community and bring the world closer together.”[61] Facebook’s statistics reflect the success of this mission with the site logging about 1.62 billion active users each day and 2.45 billion active users each month.[62] However, Facebook is no longer just a mechanism to keep in touch with friends and family. A 2018 study by the Pew Research Center found that about two-thirds of the network’s users use the site for news too.[63] Furthermore, Facebook’s advertising platform is one of the largest and most successful of its kind.[64] It has also proven quite profitable, with the company generating almost all of its revenue from advertising.[65] In the third quarter of 2019 alone, 98.5% of Facebook’s total revenue was attributable to advertising.[66]

Yet, despite Facebook’s success and the value it brings to billions of people, the company has faced harsh criticism for “ignoring and hiding warning signs over how its data and power [are] being exploited to . . . spread toxic content.”[67] Another study by the Pew Research Center found that 74% of Facebook users were unaware that Facebook tracked their activity and collected their data to facilitate ad targeting.[68] The research further found that 51% of users were uncomfortable with this practice.[69] In 2018, controversy intensified when it was revealed that the data of 87 million people were “improperly shared” in the Cambridge Analytica scandal.[70] Then, with the spotlight already casting a negative shadow, Facebook became the subject of a suit that garnered the attention of the media, HUD, and the U.S. Justice Department[71]: National Fair Housing Alliance v. Facebook, Inc.

III. Contemporary Housing Discrimination Illustrated: National Fair Housing Alliance v. Facebook, Inc.[72]

In early 2019, National Fair Housing Alliance v. Facebook, Inc. was dismissed by the court at the parties’ request because the parties reached a settlement agreement.[73] As part of the settlement, Facebook agreed to create an isolated advertising platform for housing and certain other markets that will have a limited set of targeting tools.[74] Advertisers will no longer be able to target by gender, zip code, and age, among other categories that might implicate protected groups.[75] Facebook will also supply an interface whereby all housing advertisements can be viewed regardless of the targeted features of the ads.[76] Regardless, the underlying facts of this case remain significant because they highlight the failure of the FHA and Facebook to protect vulnerable populations from contemporary discrimination. Additionally, the gap in fair housing laws addressed in this Comment could impact a just outcome in another ongoing suit against Facebook that is based upon the same conduct that was alleged in National Fair Housing Alliance.[77] Lastly, there may be future lawsuits against parties other than Facebook that involve housing and targeted advertising to which the discussion in this Comment might apply. As such, this Part proceeds as follows. First, I explain the initial investigation into Facebook that sparked the interest of the plaintiffs in National Fair Housing Alliance. Second, I detail the facts and allegations set forth in the pleadings of that case. Lastly, I summarize the actions HUD has taken against Facebook for targeted advertising.

A. The ProPublica Investigation

On October 28, 2016, ProPublica[78] published an investigatory article that accused Facebook of allowing advertisers to exclude minorities from seeing their ads.[79] ProPublica purchased a housing advertisement on Facebook and used Facebook’s ad targeting tools to exclude users with African American, Asian American, and Hispanic “Ethnic Affinities.”[80] Facebook approved the housing advertisement within fifteen minutes of ProPublica placing the order.[81] After learning about ProPublica’s investigation, Facebook responded by stating that “[E]thnic [A]ffinity” was not the same as race and thus not discriminatory, explaining that it “assigns members an ‘Ethnic Affinity’ based on pages and posts they have liked or engaged with on Facebook.”[82] Nonetheless, Facebook soon after announced that it was taking steps to improve enforcement of its prohibition against any kind of discrimination by updating its advertising policies, improving advertiser education, and implementing better enforcement tools.[83]

However, on November 21, 2017, ProPublica published a second investigatory piece that revealed otherwise.[84] For the second time, ProPublica purchased dozens of discriminatory, targeted housing advertisements that were promptly approved by Facebook.[85] Facebook’s Vice President of Product Management, Ami Vora, responded that the company was “disappointed that [it] fell short of [its] commitments.”[86]

B. National Fair Housing Alliance v. Facebook, Inc.[87]

ProPublica’s revealing investigation led a group of fair housing advocacy organizations to file suit against Facebook on March 27, 2018.[88] The plaintiffs argued that Facebook “engaged in discrimination by design—stripping data from its users and using it to create discriminatory advertising content: a pre-populated list of demographics, behaviors, and interests from which housing advertisers select in order to exclude certain home seekers from ever seeing their ads.”[89]

Each of the plaintiffs investigated Facebook’s advertising practices by posting fictitious housing or rental advertisements that used the categories created by Facebook to exclude classes of persons that are protected under the FHA.[90] The protected groups excluded from viewing these advertisements included parents with children, women, and individuals with demonstrated interests in “Disabled American Veteran,” “Disabled Parking Permit,” and “Telemundo.”[91] The plaintiffs claimed that all of the discriminatory advertisements were approved in “anywhere from one minute to approximately one hour.”[92] Because Facebook gathers, organizes, and analyzes data based on, or related to, protected characteristics and allows advertisers to exclude individuals on those bases, the plaintiffs claimed that Facebook violated numerous provisions of the FHA.[93]

C. HUD’s Housing Discrimination Complaint

HUD also filed a complaint against Facebook for its advertising practices.[94] On August 14, 2018, HUD formally accused[95] Facebook of violating the FHA “by enabling advertisers to restrict which Facebook users receive housing-related ads based on” protected classes.[96] HUD noted that Facebook’s “ad targeting tools . . . invite advertisers to express unlawful preferences by suggesting discriminatory options,” which is made possible with the extensive user data Facebook collects.[97] Further, according to HUD, Facebook “effectuates the delivery” of the discriminatory advertisements.[98] HUD Assistant Secretary Anna Maria Farias explained in a press release that “[w]hen Facebook uses the vast amount of personal data it collects to help advertisers to discriminate, it [is] the same as slamming the door in someone’s face.”[99] In early 2019, HUD took another step forward by filing a formal Charge of Discrimination against Facebook.[100]

IV. The Legal Framework for Contemporary Housing Discrimination

The legal framework for FHA violations includes the statute itself, HUD regulations, and caselaw. The plaintiffs in National Fair Housing Alliance brought a claim under the § 3604(c) advertising provision,[101] and this Part expands on the plaintiffs’ argument, exposing significant challenges with such a claim under existing law. I will also discuss a disparate impact theory of liability, a claim the plaintiffs did not bring, to conclude that a claim of this type would have a similar fate as the law currently stands.[102] Ultimately, I determine that if the law is to prohibit targeted, discriminatory housing advertisements, the existing legal framework for these claims must be improved.

A. The Section 3604(c) Advertising Provision

The National Fair Housing Alliance plaintiffs brought a § 3604(c) claim, which makes it unlawful to publish discriminatory housing advertisements.[103] This Section explains the mechanics of a § 3604(c) claim, applies the facts of National Fair Housing Alliance to such a claim, and exposes the significant challenges of a targeted advertising claim under existing law.

1. Section 3604(c) Explained.

Section 3604(c) of the FHA provides that “it shall be unlawful . . . [t]o make, print, or publish . . . any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination” with respect to a protected group.[104] HUD’s advertising regulations further provide that it is unlawful to “[s]elect[] media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities.”[105] Thus, under a joint reading of these provisions, it is illegal to publish housing advertisements that select locations for the advertisements that prevent protected individuals from pursuing housing opportunities.

Section 3604(c) has been infrequently litigated as it is,[106] but the caselaw that does exist illustrates that § 3604(c) has been interpreted broadly such that the provision applies to “all publishing mediums.”[107] Furthermore, the provision does not merely prevent the most obvious and blatant expressions that deny individuals access to housing.[108] To the contrary, § 3604(c) also protects against “intangible injuries” that result from even subtle advertising that is in violation of the FHA.[109]

Courts generally apply an “ordinary reader” standard to assess whether a housing or rental advertisement is unlawful.[110] Under that standard, an advertisement is unlawful, regardless of intent, if it “suggest[s] to an ordinary reader that a particular race [or other protected characteristic is] preferred or dispreferred for the housing in question.”[111] Few courts have expanded on this standard when discrimination is more subtle, as when “media or locations for advertising” are selected to “deny particular segments of the housing market information about housing opportunities.”[112] When the advertisement is not facially discriminatory, however, a court may look to extrinsic evidence to discern whether a violation has occurred.[113] Thus, a plaintiff need not point to an explicitly discriminatory statement to state a claim under § 3604(c).[114]

2. Section 3604(c) Applied.

Two cases would have likely provided the best support for the plaintiffs’ § 3604(c) claim in National Fair Housing Alliance under existing law. First, in Martinez v. Optimus Properties, LLC, the U.S. District Court for the Central District of California recognized selective advertisement as a viable theory of liability.[115] The plaintiffs brought suit against their landlord for advertising vacant lots through websites that targeted “young, English-speaking, single, non-disabled people.”[116] The court held that the plaintiffs sufficiently alleged that the “[d]efendants selectively advertised to particular segments of the housing market while denying information to people with disabilities, Latinos, and families with children.”[117] Similarly, in Guevara v. UMH Properties, Inc., the U.S. District Court for the Western District of Tennessee declined to dismiss a case in which the plaintiff alleged that the “[d]efendant only advertised in Spanish language media outlets” because it met HUD’s “definition of discriminatory advertisement in that it denie[d] non-Spanish speaking segments of the housing market, who are overwhelmingly non-Hispanic, information about housing opportunities.”[118]

Of the numerous claims that could be brought under the FHA, § 3604(c) is the most natural fit given that the underlying conduct at issue in National Fair Housing Alliance involves advertisements that “deny particular segments of the housing market information about housing opportunities” because such individuals are excluded from the ad’s audience through the use of Facebook’s ad targeting tools.[119] When an advertiser opts to exclude women from viewing an advertisement by virtue of Facebook providing them the ability to do so, and Facebook then approves the advertisement, women are unfairly denied the opportunity to pursue the advertised housing. Like Martinez, the plaintiffs in National Fair Housing Alliance alleged that advertisers can use Facebook’s advertising platform to selectively target certain individuals for the audience of their ads and thereby deny information to other individuals who belong to protected classes under the FHA, such as parents with toddlers or preschoolers.[120] Just as advertising in only Spanish denies non-Spanish speakers information about housing opportunities as in Guevara, when Facebook approves housing advertisements that are only viewable by men, for example, women are thereby denied the information contained in the advertisement.

3. Section 3604(c) Challenges.

Several challenges exist that would impede a § 3604(c) advertising claim under the current body of law. First, both Martinez and Guevara were decided at the motion to dismiss stage.[121] Second, neither of these courts applied the ordinary reader standard that other courts have near unanimously applied in § 3604(c) cases.[122] Finally, the advertiser, rather than a publisher like Facebook, was sued in each of these cases.[123] Thus, these cases do not definitively establish the viability of a targeted advertising claim based on § 3604(c). However, the existing legal framework outside of these cases is not equipped for a § 3604(c) targeted advertising claim either.

The statutory language—“indicates [a] preference, limitation, or discrimination”—from which the ordinary reader standard was derived leaves room for ambiguity.[124] But the ordinary reader standard presumes that unlawful discrimination cannot precede the advertisement or occur in the dissemination of the advertisement. Under the ordinary reader standard, a court would look to the objective meaning of the advertised words and determine if an ordinary person would find that it was discriminatory.[125] When the words of the advertisement itself are expressly or implicitly discriminatory, the ordinary reader standard poses no problem. However, when the discrimination precedes the publication of the advertisement, as in National Fair Housing Alliance, the ordinary reader standard does not suffice because the words of the advertisement itself are not necessarily discriminatory.[126] Instead, the discrimination occurs when Facebook allows advertisers to purposefully exclude protected groups from ever viewing the online housing advertisement in the first place.[127] This type of discrimination is much subtler because it is not identifiable by the words of the advertisement, and the excluded individuals may never even know that they have been the subject of unlawful discrimination. However, that the alleged discrimination shown in National Fair Housing Alliance is more subtle and not identifiable by the words of the objectionable advertisement does not make it any less unlawful under the FHA.[128] The reality is, there are ways to publish an advertisement that “indicates [a] preference” today that did not exist in 1968.[129] But whether an advertisement states “men only” or can only be seen by men, the effect is the same: women are disfavored by the advertiser and consequently denied housing opportunities.

The judicially imposed ordinary reader standard assumes that the only type of discrimination that can exist in advertisements is the kind that is express and blatant. The facts of National Fair Housing Alliance demonstrate that this is simply not the case anymore. Given this misalignment with the ordinary reader standard, the existing framework for § 3604(c) must be altered if the FHA is to truly prevent contemporary housing discrimination.[130]

B. The Section 3604(a) Disparate Impact Theory of Liability

Disparate impact claims challenge neutral policies that disproportionately affect vulnerable populations.[131] This Section uses the facts of National Fair Housing Alliance to explore the broad, expansive consequences targeted advertising can have on protected classes. First, I explain the utility of disparate impact claims. Second, I apply the facts of National Fair Housing Alliance to HUD’s disparate impact burden-shifting framework. Lastly, I discuss the challenges a disparate impact claim might present because of the current construct of the law.

1. Disparate Impact Explained.

The Supreme Court did not recognize claims based on a disparate impact theory of liability as cognizable under the FHA until 2015.[132] A plaintiff bringing a disparate impact claim seeks to challenge a policy or practice that has a “disproportionately adverse effect on minorities” and that is unjustified by legitimate business practices.[133] Disparate impact claims focus on the effect of policies and practices and whether they “perpetuate and reinforce old patterns of segregation and exclusion.”[134]

In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court held that § 3604(a) of the FHA establishes the disparate impact theory of liability.[135] Under § 3604(a), it is illegal to “otherwise make unavailable . . . a dwelling” to any of the groups protected by the FHA.[136] The Inclusive Communities Court also endorsed HUD’s burden-shifting framework for disparate impact claims.[137] Under that framework, a plaintiff must first make a prima facie showing that a “challenged practice caused or predictably will cause a discriminatory effect.”[138] If a plaintiff makes such a showing, the burden then shifts to the defendant to prove that the “challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.”[139] If a defendant can do so, the burden shifts back to the plaintiff who may then prevail only if they are able to prove that the “substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.”[140]

In the seminal fair housing disparate impact case, Inclusive Communities, a Texas-based nonprofit brought a disparate impact claim against the Texas Department of Housing and Community Affairs alleging that it caused a discriminatory effect upon protected individuals by disproportionately granting tax credits.[141] As this was a question of first impression, the Court analogized to Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA)—under both of which disparate impact claims had been held cognizable—to conclude that the FHA comprehended disparate impact claims.[142] The Court found that the “otherwise adversely affect” language of Title VII and the ADEA was the functional equivalent of the “otherwise make unavailable” language in the FHA.[143] Therefore, the Court held, the FHA also contemplated disparate impact claims.[144] The Court further explained that disparate impact claims are consistent with the FHA’s primary purpose: to abolish discriminatory practices in housing.[145] The Court also acknowledged that disparate impact claims “permit[] plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment” and additionally prevent discrimination that might “otherwise result from covert and illicit stereotyping.”[146]

The paradigmatic disparate impact claims under the FHA challenge housing barrier and improvement regulations of government entities.[147] Housing barrier regulations take several forms, but they typically operate to “deny minority households freedom of movement in a wider housing marketplace.”[148] For example, a housing barrier regulation could be one that impedes the development of housing likely to be used by protected groups in places that lack a presence of those protected groups.[149] Housing barrier regulations are often challenged because they tend to sustain segregation.[150] By contrast, improvement regulations typically seek to improve housing conditions through “demolition[,] . . . replacement of housing units, [and] minimum housing standards.”[151] Housing improvement regulations are challenged because they tend to displace minorities from their homes.[152] These types of claims, including those that challenge zoning regulations, are the “heartland” of disparate impact claims.[153]

However, disparate impact claims are not limited to government entities. To the contrary, “[t]he FHA imposes a command with respect to disparate-impact liability” that extends to private persons and entities.[154] True as this may be, courts have not yet recognized targeted advertising as a basis for disparate impact claims.[155] However, a comparison against the conduct at issue in traditional disparate impact claims indicates that Facebook’s conduct creates a similar type of discriminatory effect that the courts have recognized as sufficient to state a disparate impact claim.

Just as housing barrier or improvement regulations create a disproportionate physical separation or division of housing opportunities for protected groups, targeted advertising on Facebook creates a separation too. When Facebook allows advertisers to exclude protected groups from viewing housing advertisements, those groups lose the opportunity to pursue the house or apartment that is advertised. Furthermore, nothing in the language of the FHA or the HUD disparate impact regulations requires a certain type of discriminatory conduct.[156] Instead, the consequence of the conduct is the focus of a disparate impact claim.[157]

The plaintiffs’ complaint in National Fair Housing Alliance provides an apt example of the discriminatory effect that could potentially result from Facebook’s role in targeted advertising:

If women with school-age children are categorically excluded from the Facebook advertising audience for a rental apartment in a community with high-performing schools and other amenities, they are effectively denied access to that housing opportunity [because] Facebook and its advertisers have made the ad invisible to them.[158]

Yet another example is geographically discriminatory targeted advertising, a practice known as “redlining.”[159] As part of its second investigatory piece on Facebook’s ad practices, ProPublica bought a housing advertisement that targeted a certain zip code where more than 50% of the residents were white.[160] Facebook approved this ad and informed ProPublica that its “audience selection [was] great!”[161] If advertisements for houses or rentals located in predominately white areas are only targeted to individuals living in predominately white areas, this discourages integration and promotes segregation. This is precisely the type of discriminatory effect that disparate impact claims seek to remedy.

2. HUD’s Disparate Impact Burden-Shifting Framework Applied.

The courts generally apply some variation of HUD’s burden-shifting framework when deciding disparate impact claims under the FHA.[162] Furthermore, the courts will be deferential to HUD’s rules and interpretations regarding the FHA because HUD is an administrative agency.[163] As such, this Section applies the facts of National Fair Housing Alliance to HUD’s burden-shifting framework in order to mirror the analysis a court might pursue for a targeted advertising-based claim.

a. Prima Facie Case of Disparate Impact. To state a disparate impact claim, a plaintiff first has the burden of pleading that a practice has had or will cause a discriminatory effect on a protected group.[164] Disparate impact claims often reach conduct that is “both facially neutral and neutral in intent.”[165] However, if a “statistical discrepancy is caused by factors other than the defendant’s policy, a plaintiff cannot establish a prima facie case.”[166] The plaintiff must tender statistical evidence that shows the defendant’s policy “has a greater impact on a protected class than it does on others.”[167] Furthermore, the court will not find that a policy creates a disparate impact unless it is “artificial, arbitrary, and [an] unnecessary barrier[].”[168]

Facebook’s business is centered around “amass[ing] as much first-party and third-party data on [users] as possible, and slowly dol[ing] out access to it.”[169] Facebook requires certain information from its users, such as gender and date of birth.[170] Other information may be self-reported, such as information contained in posts or pages that a user “likes” on the platform.[171] Facebook collects this type of data, in addition to users’ off-site activity, to create “the most complete consumer profile on earth.”[172] Facebook then creates categories that enable advertisers to target or avoid certain types of individuals or characteristics,[173] including those that are protected by the FHA.[174] As shown in National Fair Housing Alliance, Facebook has approved numerous advertisements that have excluded women, parents with young children, and individuals with an “interest” in pages like disability.​gov, among others, from the advertisement’s audience.[175]

Facebook’s actions, mining user data and creating ad targeting tools, are facially neutral. Facebook will not exclude protected groups from an advertisement’s audience unless the advertiser elects to do so.[176] Additionally, Facebook’s advertising platform can be used for many types of advertisements, not just those relating to housing.[177] Regardless, however, if protected groups are repeatedly and consistently[178] prevented from viewing advertisements because Facebook allows or does not actively prevent advertisers from excluding them from the audience of their ads, a disproportionate, discriminatory effect can result. Thus, protected groups will suffer discriminatory effects at the hands of Facebook and its housing advertisers to the extent that users are denied housing opportunities that others are not.[179] Allowing advertisers to exclude protected groups from the audience of housing advertisements is an artificial and unnecessary barrier to the integration and equal treatment of protected groups the FHA requires.[180]

One pressing challenge, however, will be acquiring and compiling the statistics necessary to support a disparate impact claim that show protected classes are disproportionately impacted by their inability to view housing advertisements more than nonprotected classes are.[181] While statistical figures are generally essential to determine whether there exists a disproportionate effect on a protected group, statistics are not always readily available or affordable to gather.[182] Furthermore, in a targeted advertising suit against Facebook, it is likely that only Facebook has immediate access to the relevant targeted advertising figures, such as the number of housing advertisements published and the number of those that excluded women, for example. However, when a housing advertiser makes their exclusion selections, Facebook informs the advertiser of the ad’s potential reach.[183] A plaintiff may be able to compare the ad’s potential reach when nonprotected classes are excluded versus when protected classes are excluded to supplement concrete statistics for purposes of the initial prima facie showing.

b. Legitimate Business Objective. The next step in the disparate impact burden-shifting framework turns to Facebook’s business objective for the challenged practice. Under such an analysis, Facebook would have a proper defense for its practice of allowing housing advertisers to exclude protected groups from an advertisement’s audience if such a practice is “necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.”[184]

First, advertising is fundamental to Facebook’s revenue.[185] Second, Facebook does not exclusively service housing advertisers.[186] In fact, advertisers can use Facebook to post all kinds of targeted ads, none of which would be illegal under the FHA so long as the advertisements are unrelated to housing.[187] Thus, Facebook likely has a substantial, nondiscriminatory interest in allowing advertisers to use exclusion features because Facebook relies almost entirely on advertising to generate revenue, and under some circumstances, the exclusionary features do not bear on the legality of ads.

c. Substituted Practice. Assuming Facebook has a nondiscriminatory business objective, a plaintiff could still prevail with a showing that Facebook’s interests could be achieved by another practice with a less discriminatory effect.[188] On this point, Facebook could still allow advertisers to limit their audience for non-housing advertisements. It is only with respect to housing advertisements that Facebook’s conduct may create a discriminatory effect that is impermissible under the FHA.[189] There is no discriminatory effect at all if advertisers are prevented from excluding protected groups to the extent that they seek to advertise houses or rentals.[190] The settlement in National Fair Housing Alliance affirms that this is, in fact, a substituted practice.[191]

3. Disparate Impact Challenges.

Disparate impact claims are ripe for expansion. Succeeding on a traditional disparate impact claim is notoriously difficult, and plaintiffs are largely unsuccessful.[192] Despite the potential utility of disparate impact claims, the rate of success has significantly dropped since its inception.[193] Some figures have shown that less than 20% of disparate impact cases result in positive decisions on appeal.[194] Indeed, the courts require that plaintiffs meet a high burden of proof and satisfy a difficult causation standard.[195] Additionally, the courts have been hesitant to extend disparate impact claims beyond a limited set.[196]

However, disparate impact claims provide one of the few ways to address discrimination that is very real, but not express and blatant.[197] As the Supreme Court has articulated, disparate impact claims serve an important purpose by uncovering discrimination that “escape[s] easy classification as disparate treatment.”[198] Disparate impact claims are fundamental to fair housing because they “remain[] a powerful tool in combating contemporary discrimination,” even if it is undetectable on the surface.[199] The type of discrimination alleged by the plaintiffs in National Fair Housing Alliance is a prime example of contemporary discrimination that results in a disproportionate, unlawful effect on protected groups. Those that challenge these actions should have at least a fighting chance in court. Disparate impact claims must be brought into the twenty-first century so that the law becomes effective in addressing discriminatory effects caused by online housing advertisements that are unlawful under the FHA.[200]

V. Solutions to Combat Contemporary Housing Discrimination

The current legal regime is ill-equipped for addressing modern housing discrimination that can result from data mining and targeted advertising. First, the § 3604(c) ordinary reader standard does not contemplate pre-publication discrimination.[201] Second, the courts have not extended disparate impact claims beyond a limited set of claims, and regardless, succeeding on these claims is incredibly difficult.[202] This Part proposes solutions to address the inequity that may result from these three issues in turn.

A. Section 3604(c): Changes to the FHA, HUD Regulations, and the Ordinary Reader Standard

Section 3604(c), HUD’s advertising regulation, and the accompanying caselaw fail to capture discriminatory conduct that precedes the publication of housing advertisements. Three changes could remedy this issue with respect to contemporary housing discrimination. First, Congress could amend § 3604(c) directly to include language that makes clear that “indicating a preference, limitation, or discrimination” includes discriminatory distribution of the advertisement itself.[203] After all, § 3604(c) reads almost the same as it did when it was adopted in 1968.[204] Alternatively, or in addition, HUD could issue an interpretive regulation that expands on the specific advertising actions that indicate “preference[s], limitation[s], or discrimination.”[205] Finally, when faced with a targeted advertising claim, the judiciary could adopt a new standard for pre-publication discrimination rather than denying such a claim because it does not meet the ordinary reader standard. Such a standard must look beyond the words of the advertisement itself to assess whether housing discrimination has occurred. These solutions ensure that housing discrimination does not go unpunished just because it takes the form of targeted, online advertising.

B. Improved Understanding and Expansion of Disparate Impact

A disparate impact claim based on targeted advertising would be a matter of first impression for the courts.[206] But targeted advertising may cause the same types of discriminatory effects that stem from conduct the courts have already recognized as having done so.[207] As HUD has requested comment on its burden-shifting framework, now is an opportune time for the department to make clear that targeted advertising claims are viable if the advertisements create a discriminatory effect.[208] More clarity is also needed regarding the causation standard and the burden the plaintiff must carry in cases that do not involve traditional disparate impact claims, like those that challenge zoning regulations.[209] Furthermore, more research and investigation is needed to determine the impacts of targeted advertising on protected groups.[210] HUD, as it is charged with investigating and reporting on discriminatory housing practices, could form a commission to monitor and examine the impacts of “big data” and social media.[211] Pursuit of these solutions will ensure protected classes that a discriminatory effect of any kind will not go unnoticed or unpunished when necessary.

VI. Conclusion

Preventing housing discrimination is just as important today as it was fifty years ago given the ease with which discrimination can go undetected on the internet. Yet, the existing legal framework is not equipped to right the wrongs of the contemporary housing discrimination illustrated in National Fair Housing Alliance. This must change if the FHA is to effectively combat all forms of impermissible housing discrimination. First, the legislature, HUD, and the courts must alter their respective laws to capture pre-publication discrimination. This might include amending the FHA, issuing an interpretive regulation, or developing a new common law standard. Each must make clear that the law prohibits more than express discrimination in advertisements; it also prohibits subtle and covert means of housing discrimination. Second, HUD must examine the discriminatory effects that can result from targeted advertising. Furthermore, if the judiciary is faced with such a claim, the judiciary must approach it with a standard that is appropriate for the conduct at issue. These solutions will move the FHA into the twenty-first century so that the promise of the Act can still be fulfilled.

Chandler Nicholle Spinks

  1. Michael P. Seng & F. Willis Caruso, Forty Years of Fair Housing: Where Do We Go from Here?, 18 J. Affordable Housing & Community Dev. L. 235, 242 (2009).

  2. See, e.g., Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2516 (2015).

  3. Id.

  4. Id. (quoting Nat’l Advisory Comm’n on Civil Disorders, Report of the National Advisory Commission on Civil Disorders 1 (1968)).

  5. Jorge Andres Soto & Deidre Swesnik, The Promise of the Fair Housing Act and the Role of Fair Housing Organizations, Issue Brief (Am. Constitution Soc’y for Law & Policy, D.C.), Jan. 2012, at 3; History of Fair Housing, HUD, https://www.hud.gov/program_offices/fair_housing_equal_opp/aboutfheo/history [https://perma.cc/Q6RF-FZ9H] (last visited Mar. 9, 2019) (“Since the 1966 open housing marches in Chicago, Dr. King’s name had been closely associated with the fair housing legislation.”).

  6. See Inclusive Cmtys. Project, 135 S. Ct. at 2516; Soto & Swesnik, supra note 5, at 4.

  7. See Soto & Swesnik, supra note 5, at 4.

  8. Seng & Caruso, supra note 1, at 235 (“Th[e] Act had been delayed in Congress for several years, and it was the assassination of Martin Luther King Jr. that gave impetus to its passage as a lasting memorial to Dr. King . . . .”)

  9. See Soto & Swesnik, supra note 5, at 1, 4.

  10. Shanti Abedin et al., Nat’l Fair Hous. All., Making Every Neighborhood a Place of Opportunity 12–34 (2018), https://nationalfairhousing.org/wp-content/uploads/2018/04/NFHA-2018-Fair-Housing-Trends-Report_4-30-18.pdf [https://perma.cc/QAV8-ZG6Y] (highlighting the success of the FHA in combating housing discrimination and segregation).

  11. See infra Sections IV.A.3, .B.3.

  12. Abedin et al., supra note 10, at 79.

  13. See, e.g., Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, 104 Calif. L. Rev. 671, 673 (2016) (listing numerous types of advertisers that rely on “big data” to better advertise their products or services); Matthew Adam Bruckner, The Promise and Perils of Algorithmic Lenders’ Use of Big Data, 93 Chi.-Kent L. Rev. 3, 7–10 (2018) (describing “big data”); David Walton, Big Data’s Potential Disparate Impact Problem, Law 360 (Aug. 21, 2014, 11:25 AM), https://www.law360.com/articles/568911/big-data-s-potential-disparate-impact-problem [https://perma.cc/23UN-DY29].

  14. See Natasha Singer, What You Don’t Know About How Facebook Uses Your Data, N.Y. Times (Apr. 11, 2018), https://www.nytimes.com/2018/04/11/technology/facebook-privacy-hearings.html [https://perma.cc/JS95-NUJH] (“If Facebook is being singled out for [data mining], it is because it is a market leader and its stockpiling of personal data is at the core of its $40.6 billion annual business.”).

  15. See Facebook Reports Third Quarter 2019 Results, Facebook Inv. Rel. (Oct. 30, 2019), https://investor.fb.com/investor-news/press-release-details/2019/Facebook-Reports-Third-Quarter-2019-Results/default.aspx [https://perma.cc/96T9-F26W]; see also Sapna Maheshwari, ‘No Morals’: Advertisers React to Facebook Report, N.Y. Times (Nov. 15, 2018), https://www.nytimes.com/2018/11/15/business/media/facebook-advertisers.html [https://perma.cc/5UVF-U3ER] (“Advertisers are the financial engine of Facebook . . . .”).

  16. Memorandum of Law in Support of Motion to Transfer Venue, or Alternatively to Dismiss Plaintiffs’ First Amended Complaint at 3, Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. July 30, 2018) [hereinafter Facebook’s Motion to Dismiss]; Upturn, Leveling the Platform: Real Transparency for Paid Messages on Facebook 8 (2018), https://www.upturn.org/reports/2018/facebook-ads/ [https://perma.cc/3YX8-U6LE].

  17. Caitlin Dewey, 98 Personal Data Points That Facebook Uses to Target Ads to You, Wash. Post (Aug. 19, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/08/19/98-personal-data-points-that-facebook-uses-to-target-ads-to-you/?noredirect=on&utm_term=.747592b1232e [https://perma.cc/7A3F-ZQ4A].

  18. Barocas & Selbst, supra note 13, at 673 (“Where data is used predictively to assist decision making, it can affect the fortunes of whole classes of people in consistently unfavorable ways.”); see also infra Sections IV.B.1–.2 (discussing how Facebook’s advertising practices may disproportionately impact groups protected by the FHA).

  19. 42 U.S.C. § 3604(a), (c) (2012).

  20. “Big data is a term that describes the large volume of data . . . that inundates a business on a day-to-day basis. But it’s not the amount of data that’s important. It’s what organizations do with the data that matters.” See Big Data, SAS, https://www.sas.com/en_us/insights/big-data/what-is-big-data.html [https://perma.cc/7PTH-F3AB] (last visited Mar. 8, 2019).

  21. See infra Sections IV.A.3, .B.3 (illustrating how the FHA is not able to combat modern day discriminatory advertising practices).

  22. Abedin et al., supra note 10, at 76–77 (“There is growing attention among advocates regarding the role that big data and related algorithms play in marketing and pricing services in the housing, employment, and credit access markets.”).

  23. Exec. Office of the President, Big Data: Seizing Opportunities, Preserving Values, at iii (2014), https://obamawhitehouse.archives.gov/sites/default/files/docs/big_data_privacy_report_may_1_2014.pdf [https://perma.cc/J7X4-HYPJ].

  24. Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Feb. 6, 2019).

  25. See infra Section III.B (providing further details on the plaintiffs’ allegations).

  26. Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 194 (2001).

  27. See, e.g., Abedin et al., supra note 10, at 12–34.

  28. See Soto & Swesnik, supra note 5.

  29. Id.

  30. Id. at 3–4.

  31. See Schwemm, supra note 26, at 194.

  32. See History of Fair Housing, supra note 5.

  33. Jean Eberhart Dubofsky, Fair Housing: A Legislative History and a Perspective, 8 Washburn L.J. 149, 160 (1969) (“Martin Luther King’s assassination on the evening of April 4th accomplished one thing; it dislodged the Civil Rights Bill of 1968 [the FHA] from the Rules Committee.”).

  34. See History of Fair Housing, supra note 5 (“President Johnson viewed the [FHA] as a fitting memorial to [Dr. King’s] life work, and wished to have the [FHA] passed prior to Dr. King’s funeral in Atlanta.”).

  35. Dubofsky, supra note 33, at 152–53.

  36. Id. at 160.

  37. See 42 U.S.C. §§ 3604–3606 (2012); see also Soto & Swesnik, supra note 5, at 4 (explaining conduct that the FHA prohibits).

  38. See Fair Housing Act, Pub. L. No. 90-284, § 804, 82 Stat. 73, 83 (1968) (codified as amended at 42 U.S.C. § 3604); Soto & Swesnik, supra note 5, at 4.

  39. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6(b), 102 Stat. 1619, 1622; Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 808, 88 Stat. 633, 729.

  40. See 42 U.S.C. § 3604(a).

  41. Id. § 3604(c); Schwemm, supra note 26, at 195.

  42. 42 U.S.C. § 3608(a).

  43. Id. § 3608(c).

  44. Id.

  45. Id. § 3614(b)(1)(A).

  46. Id. §§ 3535(d), 3608(a), (c).

  47. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984).

  48. See Soto & Swesnik, supra note 5, at 1.

  49. Abedin et al., supra note 10, at 76 (“50 years ago, when the Fair Housing Act was passed, there was no way of knowing how the housing market would develop, especially with respect to technological advances and the extent to which the market has begun to leverage powerful online platforms.”).

  50. Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247, 247–48 (2016).

  51. See Abedin et al., supra note 10, at 76.

  52. Gil Press, Why Facebook Triumphed over All Other Social Networks, Forbes (Apr. 8, 2018, 4:11 PM), https://www.forbes.com/sites/gilpress/2018/04/08/why-facebook-triumphed-over-all-other-social-networks/#bd01bbd6e918 [https://perma.cc/K6NQ-7PVZ].

  53. Company Info, Facebook Newsroom, https://about.fb.com/company-info/ [https://perma.cc/B69C-UMTN] (last visited Feb. 9, 2020).

  54. The “newsfeed” is a mechanism that displays user activity. Facebook Gets a Facelift, Facebook (Sept. 5, 2006, 2:03 AM), https://www.facebook.com/notes/facebook/facebook-gets-a-facelift/2207967130 [https://perma.cc/JM9W-VY8D].

  55. “Marketplace” is an application for classified listings. The Marketplace Is Open…, Facebook (May 14, 2007, 1:32 PM), https://www.facebook.com/notes/2383962130 [https://perma.cc/VDR6-W26M].

  56. Facebook Ads, Facebook (Nov. 6, 2007, 11:46 PM), https://www.facebook.com/notes/facebook/facebook-ads/6972252130 [https://perma.cc/VL2P-F9T2].

  57. Id.

  58. About Facebook Ads, Facebook, https://www.facebook.com/about/ads [https://perma.cc/XP95-KZVF] (last visited Feb. 9, 2020).

  59. See supra note 16 and accompanying text.

  60. About Facebook Ads, supra note 58.

  61. Company Info, supra note 53.

  62. These figures are as of September 30, 2019. Facebook Reports Third Quarter 2019 Results, supra note 15.

  63. Katerina Eva Matsa & Elisa Shearer, News Use Across Social Media Platforms 2018, Pew Res. Ctr. (Sept. 10, 2018), http://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/ [https://perma.cc/WLX6-Z62N].

  64. Emily Bell, Mark Zuckerberg’s Facebook Mission Statements Hide His Real Aim, Guardian (Mar. 10, 2019), https://www.theguardian.com/media/commentisfree/2019/mar/10/mark-zuckerberg-facebook-mission-statements-hides-his-real-aim [https://perma.cc/886M-2HP8] (discussing Facebook’s “phenomenally successful ad-targeting platform”).

  65. See Facebook Reports Third Quarter 2019 Results, supra note 15.

  66. Of Facebook’s $17.7 billion in total revenues for the third quarter, $17.4 billion was attributable to advertising. See id.

  67. See Maheshwari, supra note 15.

  68. Paul Hitlin & Lee Rainie, Facebook Algorithms and Personal Data, Pew Res. Ctr. (Jan. 16, 2019), http://www.pewinternet.org/2019/01/16/facebook-algorithms-and-personal-data/ [https://perma.cc/6685-EME3].

  69. Id.

  70. See Jason Abbruzzese & Jasmin Boyce, Facebook’s 2018 Timeline: Scandals, Hearings and Security Bugs, NBC News (Dec. 29, 2018, 4:56 PM), https://www.nbcnews.com/tech/tech-news/facebook-s-2018-timeline-scandals-hearings-security-bugs-n952796 [https://perma.cc/H9HF-RD3Q].

  71. The U.S. Justice Department filed a Statement of Interest in support of the National Fair Housing Alliance plaintiffs after Facebook moved to dismiss the case. See Statement of Interest of the United States of America at 1, 6, Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Aug. 17, 2018).

  72. Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Feb. 6, 2019).

  73. Stipulation and Order for Dismissal at 1, Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Feb. 6, 2019).

  74. Facebook Settlement, Nat’l Fair Housing Alliance, https://nationalfairhousing.org/facebook-settlement/ [https://perma.cc/XKY5-XE24] (last visited Nov. 12, 2019).

  75. Sheryl Sandberg, Doing More to Protect Against Discrimination in Housing, Employment and Credit Advertising, Facebook Newsroom (Mar. 19, 2019), https://newsroom.fb.com/news/2019/03/protecting-against-discrimination-in-ads/ [https://perma.cc/3BLX-8HC5].

  76. For a summary of the settlement terms, see Facebook Settlement, supra note 74.

  77. See infra Section III.C.

  78. ProPublica is a nonprofit investigative news journal. About Us, ProPublica, https://www.propublica.org/about/ [https://perma.cc/MJV7-4APC] (last visited Mar. 10, 2019).

  79. Julia Angwin & Terry Parris Jr., Facebook Lets Advertisers Exclude Users by Race, ProPublica (Oct. 28, 2016), https://www.propublica.org/article/facebook-lets-advertisers-exclude-users-by-race [https://perma.cc/N8MC-U946].

  80. Id.

  81. Id.

  82. Id.

  83. Improving Enforcement and Promoting Diversity: Updates to Ads Policies and Tools, Facebook Newsroom (Feb. 8, 2017), https://newsroom.fb.com/news/2017/02/improving-enforcement-and-promoting-diversity-updates-to-ads-policies-and-tools/ [https://perma.cc/5SC6-GTQC].

  84. Julia Angwin & Ariana Tobin, Facebook (Still) Letting Housing Advertisers Exclude Users by Race, ProPublica (Nov. 21, 2017, 1:23 PM), https://www.propublica.org/article/facebook-advertising-discrimination-housing-race-sex-national-origin [https://perma.cc/45SH-HMK5].

  85. Id.

  86. Id. After HUD subsequently filed a housing discrimination complaint against Facebook, the company removed over 5,000 targeting options “that relate[d] to attributes such as ethnicity or religion.” Keeping Advertising Safe and Civil, Facebook Bus. (Aug. 21, 2018), https://www.facebook.com/business/news/keeping-advertising-safe-and-civil [https://perma.cc/7HWK-25XA]; see also infra Section III.C (regarding HUD complaint against Facebook for its advertising practices).

  87. Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Feb. 6, 2019).

  88. Complaint at 14, Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. Mar. 27, 2018); First Amended Complaint at 17, Nat’l Fair Hous. All. v. Facebook, Inc., No. 1:18-cv-02689 (S.D.N.Y. June 25, 2018) [hereinafter Plaintiffs’ First Amended Complaint].

  89. Plaintiffs’ First Amended Complaint, supra note 88, at 1.

  90. See id. at 20–32 (outlining investigations in the Washington D.C., New York, Florida, and Texas housing markets).

  91. See id. at 20–21.

  92. Id. at 33.

  93. Id. at 1, 39–40.

  94. Housing Discrimination Complaint, Facebook, Inc. (Aug. 13, 2018) [hereinafter HUD’s Housing Discrimination Complaint], https://www.hud.gov/sites/dfiles/PIH/documents/HUD_01-18-0323_Complaint.pdf [https://perma.cc/R28C-DPK5].

  95. See 42 U.S.C. § 3610(a) (2012) (outlining the HUD Secretary’s complaint procedure).

  96. HUD’s Housing Discrimination Complaint, supra note 94.

  97. Id.

  98. Id.

  99. Press Release, U.S. Dep’t of Hous. & Urban Dev., HUD Files Housing Discrimination Complaint Against Facebook (Aug. 17, 2018), https://archives.hud.gov/news/2018/pr18-085.cfm [https://perma.cc/P5WQ-PPQK].

  100. Charge of Discrimination at 1, Facebook, Inc., No. 018-0323-8 (Dep’t of Hous. & Urban Dev. Mar. 28, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf [https://perma.cc/HM9V-A9BP] (administrative charge).

  101. Plaintiffs’ First Amended Complaint, supra note 88, at 39.

  102. See infra Section IV.B.

  103. 42 U.S.C § 3604(c) (2012); Plaintiffs’ First Amended Complaint, supra note 88, at 39.

  104. 42 U.S.C § 3604(c).

  105. Discriminatory Advertisements, Statements and Notices, 24 C.F.R. § 100.75(c)(3) (2018).

  106. See Blomgren v. Ogle, 850 F. Supp. 1427, 1439 (E.D. Wash. 1993); Schwemm, supra note 26, at 191.

  107. Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991).

  108. See United States v. Space Hunters, Inc., 429 F.3d 416, 424 (2d Cir. 2005); Ragin v. N.Y. Times Co., 923 F.2d 995, 999 (2d Cir. 1991) (“We do not limit the statute—not to say trivialize it—by construing it to outlaw only the most provocative and offensive expressions . . . .”); see also Hous. Opportunities Made Equal, Inc., 943 F.2d at 646 (“Courts have given a broad reading to the FHA in order to fulfill its remedial purpose.”).

  109. See Space Hunters, 429 F.3d at 424; N.Y. Times Co., 923 F.2d at 999 (“Congress used broad language in § 3604(c), and there is no cogent reason to narrow the meaning of that language.”); Schwemm, supra note 26, at 223.

  110. N.Y. Times Co., 923 F.2d at 999; see also Schwemm, supra note 26, at 213–15 (describing the elements of a § 3604(c) claim and explaining that the ordinary reader test attaches to the statutory language that requires an advertisement to “indicate[]” discrimination).

  111. Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (quoting N.Y. Times Co., 923 F.2d at 999).

  112. Discriminatory Advertisements, Statements and Notices, 24 C.F.R. § 100.75(c)(3) (2018).

  113. Blomgren v. Ogle, 850 F. Supp. 1427, 1439 (E.D. Wash. 1993); Soules v. U.S. Dep’t of Hous. & Urban Dev., 967 F.2d 817, 824–25 (2d Cir. 1992).

  114. See Soules, 967 F.2d at 824; Martinez v. Optimus Props., LLC, No. 2:16-cv-08598, 2017 WL 1040743, at *5 (C.D. Cal. Mar. 14, 2017); Guevara v. UMH Props., Inc., No. 2:1

    cv-2339, 2014 WL 5488918, at *6 (W.D. Tenn. Oct. 29, 2014).

  115. Martinez, 2017 WL 1040743, at *5.

  116. Id.

  117. Id.

  118. Guevara, 2014 WL 5488918, at *5.

  119. Discriminatory Advertisements, Statements and Notices, 24 C.F.R. § 100.75(c)(3) (2018).

  120. See Plaintiffs’ First Amended Complaint, supra note 88, at 20–21.

  121. Martinez, 2017 WL 1040743, at *9; Guevara, 2014 WL 5488918, at *1.

  122. See Schwemm, supra note 26, at 215 (“Courts consistently interpret [the] word [‘indicates’] to mean § 3604(c) is violated if the notice, statement, or advertisement[s] indicates discrimination to an ‘ordinary reader’ . . . .”).

  123. Martinez, 2017 WL 1040743, at *2; Guevara, 2014 WL 5488918, at *6.

  124. Presumably, this was purposeful given the statute’s “remedial purposes.” See, e.g., Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991); see also Ragin v. N.Y. Times Co., 923 F.2d 995, 999 (2d Cir. 1991).

  125. Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (quoting N.Y. Times Co., 923 F.2d at 999).

  126. See Plaintiffs’ First Amended Complaint, supra note 88, at 20–32.

  127. Id. at 20–21.

  128. The plain language of the FHA does not require that advertisements be facially discriminatory. See 42 U.S.C § 3604(c) (2012).

  129. Id. The substantive language of § 3604(c) has not changed since its original adoption in 1968. See Schwemm, supra note 26, at 191 n.6.

  130. See infra Section V.A.

  131. See Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 407–08 (2017).

  132. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2525 (2015). The circuit courts had long recognized disparate impact claims prior to this case. See Stacy E. Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 359 (2013); Soto & Swesnik, supra note 5, at 19.

  133. Inclusive Cmtys. Project, 135 S. Ct. at 2513 (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)).

  134. See Seicshnaydre, supra note 132, at 416.

  135. Inclusive Cmtys. Project, 135 S. Ct. at 2525.

  136. 42 U.S.C § 3604(a) (2012).

  137. See Inclusive Cmtys. Project, 135 S. Ct. at 2514–15; Discriminatory Effect Prohibited, 24 C.F.R. § 100.500(c) (2018); see also Robert G. Schwemm & Calvin Bradford, Proving Disparate Impact in Fair Housing Cases After Inclusive Communities, 19 N.Y.U. J. Legis. & Pub. Pol’y 685, 689, 692 (2016) (stating that both the Court and HUD “use the same basic three-part burden-shifting framework for [disparate impact] claims, and their articulations of the applicable standards are nearly identical”).

  138. Inclusive Cmtys. Project, 135 S. Ct. at 2514 (quoting § 100.500(c)(1)).

  139. Id. at 2514–15 (quoting § 100.500(c)(2)).

  140. Id. at 2515 (quoting § 100.500(c)(3)).

  141. Id. at 2514.

  142. Id. at 2515–18, 2525; see also Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (holding a disparate impact theory of liability as cognizable under the ADEA); Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971) (reversing the court of appeals’ holding that denied a disparate impact claim under Title VII).

  143. Inclusive Cmtys. Project, 135 S. Ct. at 2519.

  144. Id. at 2525.

  145. Id. at 2521.

  146. Id. at 2522.

  147. See id. at 2521–22; Seicshnaydre, supra note 132, at 399–403.

  148. See Seicshnaydre, supra note 132, at 360–61.

  149. Id. at 365–67.

  150. Id. at 365.

  151. Id. at 361, 381–84.

  152. Id.

  153. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2521–22 (2015).

  154. Id. at 2524.

  155. I did not find any cases in my research that upheld such a claim. Although the National Fair Housing Alliance plaintiffs did not bring a disparate impact claim, their § 3604(c) claim was based upon targeted advertising. In its motion to dismiss, Facebook was quick to point out that “[n]o court ha[d] adopted [such an] expansive view of the FHA.” See Facebook’s Motion to Dismiss, supra note 16, at 25.

  156. See 42 U.S.C. § 3604(a) (2012); Discriminatory Effect Prohibited, 24 C.F.R. § 100.500(c) (2018).

  157. Inclusive Cmtys. Project, 135 S. Ct. at 2518. One scholar gave a particularly insightful example of the discriminatory consequences that disparate impact liability might address:

    For example, disparate impact analysis might be used to evaluate search practices facilitated by particular data manipulation tools. Suppose an app were created that allowed users to filter real estate listings based on maximum percentages of households of a particular race residing within a certain radius of the property. Further, suppose it were shown that widespread use of this type of tool within a particular geographic area tended to perpetuate patterns of segregative housing choices—a type of discriminatory effect recognized by both HUD and the Supreme Court as supporting a disparate impact claim.

    Fennell, supra note 131, at 408–09.

  158. See Plaintiffs’ First Amended Complaint, supra note 88, at 2.

  159. Angwin & Tobin, supra note 84.

  160. Id.

  161. Id.

  162. Schwemm & Bradford, supra note 137, at 692.

  163. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

  164. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2514 (2015) (quoting Discriminatory Effect Prohibited, 24 C.F.R. § 100.500(c) (2014)).

  165. Fennell, supra note 131, at 407.

  166. Inclusive Cmtys. Project, 135 S. Ct. at 2514.

  167. Schwemm & Bradford, supra note 137, at 697.

  168. Inclusive Cmtys. Project, 135 S. Ct. at 2524 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)).

  169. Dewey, supra note 17.

  170. Create an Account, Facebook Help Ctr., https://www.facebook.com/help/basics [https://perma.cc/N8KJ-Y77K] (last visited Mar. 7, 2020).

  171. Upturn, supra note 16, at 8.

  172. Dewey, supra note 17. See generally About Facebook Ads, supra note 58 (explaining the user data that Facebook utilizes for targeted advertising).

  173. See Facebook’s Motion to Dismiss, supra note 16, at 3; Facebook Advertising Targeting Options, Facebook Bus., https://www.facebook.com/business/ads/ad-targeting [https://perma.cc/77SD-4YGJ] (last visited Feb. 2, 2019).

  174. See supra note 16 and accompanying text.

  175. See Plaintiffs’ First Amended Complaint, supra note 88, at 20–21.

  176. Facebook’s Motion to Dismiss, supra note 16, at 4–5.

  177. Facebook for Industries, Facebook Bus., https://www.facebook.com/business/industries?ref=fbb_v3_footer [https://perma.cc/M7ND-6MGL] (last visited Feb. 1, 2020).

  178. Schwemm & Bradford, supra note 137, at 693 (“Because disparate-impact claims challenge only generally applicable policies, this theory is not appropriate for claims that are based on a defendant’s single act or decision.”).

  179. See supra notes 157–61 and accompanying text.

  180. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2525–26 (2015).

  181. See, e.g., Mary Madden et al., Privacy, Poverty, and Big Data: A Matrix of Vulnerabilities for Poor Americans, 95 Wash. U. L. Rev. 53, 91 (2017) (“Even in the absence of big data, disparate impact cases are notoriously hard to win due to the complexity and expense of obtaining the necessary statistical evidence to demonstrate a disparate impact . . . .”).

  182. See Schwemm & Bradford, supra note 137, at 691; Seicshnaydre, supra note 132, at 392–93.

  183. About Potential Reach, Facebook Bus., https://www.facebook.com/business/help/1665333080167380?id=176276233019487 [https://perma.cc/W8VH-X6HM] (last visited Feb. 15, 2020).

  184. Inclusive Cmtys. Project, 135 S. Ct. at 2514–15 (quoting Discriminatory Effect Prohibited, 24 C.F.R. § 100.500(c)(2) (2014)).

  185. See supra notes 65–66 and accompanying text.

  186. See Facebook for Industries, supra note 177.

  187. See 42 U.S.C. § 3604 (2012).

  188. Inclusive Cmtys. Project, 135 S. Ct. at 2515 (quoting 24 C.F.R. § 100.500(c)(3)).

  189. See 42 U.S.C. § 3604.

  190. See 24 C.F.R. § 100.500(a).

  191. As already mentioned, Facebook agreed to establish a separate advertising platform for housing with limited targeting options. Facebook Settlement, supra note 74.

  192. See Schwemm & Bradford, supra note 137, at 690 (“[T]he promise of Inclusive Communities—that FHA-based impact claims may help break down arbitrary barriers to a more integrated society—may not always be easy to fulfill.”); Seicshnaydre, supra note 132, at 392–93.

  193. Seicshnaydre, supra note 132, at 393–94.

  194. Id. at 393, 399.

  195. Schwemm & Bradford, supra note 137, at 689 (“[A] plaintiff who fails to produce appropriate statistical evidence faces pre-trial dismissal, perhaps as early as the pleading stage.” (citing Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523–24 (2015))).

  196. See id. at 693–95 (naming the primary types of disparate impact claims).

  197. Inclusive Cmtys. Project, 135 S. Ct. at 2522.

  198. Id.

  199. See Soto & Swesnik, supra note 5, at 19.

  200. See infra Section V.B.

  201. See supra Section IV.A.3.

  202. See supra Section IV.B.3.

  203. 42 U.S.C. § 3604(c) (2012).

  204. See Schwemm, supra note 26, at 191 n.6.

  205. 42 U.S.C. § 3604(c) (2012).

  206. See Schwemm & Bradford, supra note 137, at 693–95 (naming the primary types of disparate impact claims, none of which presently include targeted advertising).

  207. See supra notes 157–61 and accompanying text.

  208. Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 83 Fed. Reg. 28,560, 28,560–61 (advance notice of proposed rulemaking June 20, 2018) (to be codified at 24 C.F.R. pt. 100). Unfortunately, it seems unlikely that HUD is currently positioned to do this—HUD very recently proposed a new disparate impact rule that arguably makes it harder to prevail on even traditional disparate impact claims. See HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42,854, 42,858–60 (proposed Aug. 19, 2019) (to be codified at 24 C.F.R. pt. 100) (proposing a new five-part disparate impact test).

  209. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2521–22 (2015); Schwemm & Bradford, supra note 137, at 697, 751.

  210. Abedin et al., supra note 10, at 77 (“[Big data] will clearly be an issue to address in the next 50 years under the Fair Housing Act.”).

  211. 42 U.S.C. § 3608(e) (2012).