• by Wendy Davis  @wendyndavis, June 6, 2018

Facebook is asking a federal judge in New York to dismiss a lawsuit accusing the company of violating housing laws by facilitating ads that discriminate against women and families with children.

The social networking service argues in court papers filed this week that the federal Communications Decency Act broadly immunizes Web services providers from liability for material posted by users, including discriminatory ads.

"What makes the content at issue allegedly unlawful is controlled by third-party advertisers who create the housing ads and then target them in ways plaintiffs claim are discriminatory," Facebook writes in a motion filed this week with U.S. District Court Judge John Koeltl in New York. "But Plaintiffs do not and cannot allege that Facebook makes these decisions."

Facebook's papers come in response to a lawsuit filed in March by the National Fair Housing Alliance and other groups over housing ads. The organizations allege that Facebook enables landlords and brokers to prevent ads from being shown to women, families with children, and users with interests suggesting a disability or particular national origin. It is illegal to publish housing or job ads that discriminate based on factors including race, religion, sex and national origin.

The housing advocates allege that between December 14, 2017 and February 23 of this year, Facebook accepted 40 ads that excluded home seekers based on their sex or family status. Facebook also allegedly allows housing advertisers to exclude certain categories of users -- like people who are interested in disabled parking permits, or in broadcasting company Telemundo -- from seeing ads.

This week, Facebook filed papers seeking to transfer the case to its home turf -- the Northern District of California. But the company alternatively is asking Koeltl to dismiss the matter outright, due to the Communications Decency Act.

"The CDA prohibits plaintiffs fro seeking to impose liability on Facebook for publishing third-party content they allege is discriminatory," the company writes. 

That law protects interactive service providers from liability for users' content, but has some exceptions, including one that could apply to Facebook's housing ads. In 2008, a federal appellate refused to dismiss a lawsuit against Roommates.com, which was accused of offering discriminatory housing ads. In that case, the court ruled that Roommates.com may have helped to "develop" the ads; if so, the site would lose its protection from liability.

Facebook argues that its situation differs from Roommates', because the ad-targeting options it offered were neutral. "The targeting tools challenged by Plaintiffs are exactly the type of “neutral tool[]” protected by the CDA," Facebook contends.

Allegations that Facebook's targeting platform facilitated illegal ads surfaced in 2016, when ProPublica reported that Facebook enables advertisers to prevent ads from being shown to users who belong to certain "ethnic affinity" groups -- including people Facebook has identified as having an ethnic affinity of black, Asian-American and Hispanic.

After that report appeared, Facebook updated its ad guidelines to strengthen prohibitions against discrimination 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 said it would require advertisers offering housing and employment ads to certify compliance with anti-discrimination laws. Despite the company's move, ProPublica reported last November that the company still allowed advertisers to prevent minorities from viewing housing ads.

The company currently a separate lawsuit by users who allege the company enables advertisers to block minorities from seeing housing and job ads.