• by Wendy Davis  @wendyndavis, May 23, 2017

Three Facebook users are asking a judge to allow them to proceed with a class-action complaint alleging that the social networking site violated civil rights laws by enabling race-based ad targeting.

"Facebook is not merely a passive publisher of other companies’ ads," they say in papers filed Friday with U.S. District Court Judge Edward Davila in San Jose, California. "It is a modern-day marketing and recruitment firm that identifies people who are interested in economic opportunities, classifies them based on race, national origin, and location, works closely with employers, housing providers, and creditors to select which people to target, and then delivers ads to the selected people using advanced computer science technologies."

The users are asking Davila to reject Facebook's argument that it's not responsible for illegal job ads posted by users.

The legal battle dates to last November, when New York resident Karen Savage, Gretna, Louisiana resident Victor Onuoha and Suzanne-Juliette Mobley of New Orleans sued Facebook over its race-based targeting platform, which allows advertisers to block their ads from users with certain "ethnic affinities."

Onuoha and the others argue that the race-based targeting options violate the Fair Housing Act and the Civil Rights Act of 1964. Those laws prohibit companies from publishing housing or job ads that discriminate based on factors including race, religion, sex and national origin.

The users brought the case soon after ProPublica reported that Facebook allows advertisers to prevent their ads from being shown to users who belong to certain "ethnic affinity" groups -- including people that the social networking platform believes have an ethnic affinity of black, Asian-American and Hispanic.

Last month, Facebook asked Davila to dismiss the lawsuit, arguing that the Communications Decency Act immunizes Web services providers from liability for illegal ads posted by users. The company notes that in 2008, a federal appellate court ruled that Craigslist wasn't responsible for discriminatory housing ads placed by users.

"Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any," the company argued. "Facebook’s provision of these neutral tools to advertisers falls squarely within the scope of CDA immunity."

But the users who are suing counter that Facebook itself developed the information that was used to discriminate.

"Facebook alone determines users as having a particular race or national origin based on Facebook’s analysis of a user’s online activity," the users argue in their newest legal papers. "Facebook creates this information on its users’ protected statuses as part of an unlawful scheme... In addition, Facebook provides databases of race and national origin information on its users to advertisers to facilitate discrimination in recruitment and ad campaigns."

The users point out that in 2008, the 9th Circuit Court of Appeals refused to dismiss a lawsuit accusing Roommates.com of offering discriminatory housing ads. The court said in that case that Roommates may be responsible if it helped "develop" illegal ads.

Facebook recently updated its ad guidelines, which prohibit advertisers from discriminating against users based on race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, or medical or genetic condition. The company also says advertisers must comply with civil rights laws.

“When an advertiser attempts to show an ad that we identify as offering a housing, employment or credit opportunity and either includes or excludes our multicultural advertising segments -- which consist of people interested in seeing content related to the African American, Asian American and US Hispanic communities -- we will disapprove the ad,” Facebook wrote earlier this year in a blog post.

When advertisers try to show an ad that Facebook identifies as offering a housing, employment or credit opportunity and uses any other audience segment on Facebook, it will show those advertisers information about its updated anti-discrimination policy and will require them to certify that they comply with anti-discrimination laws.