Though Facebook announced a voluntary plan to update its controversial advertising-filter system earlier this year, Washington State announced a firmer plan for the social media company on Tuesday.
State Attorney General Bob Ferguson announced a legally binding plan that will force Facebook to “make significant changes to its advertising platform by removing the ability of third-party advertisers to exclude ethnic and religious minorities, immigrants, LGBTQ individuals, and other protected groups from seeing their ads.
Ferguson also declared the end of his office’s 20-month investigation into Facebook’s advertising practices on Tuesday, which coincided with an Assurance of Discontinuance (PDF) filed in King County Superior Court.
No affinity for FB’s affinities
The AG’s office of Washington state joined a chorus of unhappy—and litigious—Facebook users in late 2016 after a ProPublica investigation revealed how easy it was for Facebook advertisers to discriminate against users who were defined by “ethnic affinities.” These were labeled with clear demographics like African-American, Asian-American, and Hispanic, and ProPublica’s report pointed out that this was a clear violation of the 1968 Fair Housing Act.
The Tuesday announcement confirmed that this report inspired AG Ferguson’s office to launch an investigation in November 2016, which began with the purchase of 20 fake ads on Facebook. These ads ran the gamut of content types, including “nightclubs, restaurants, lending, insurance, employment, and apartment rentals” so that Ferguson could determine whether or not specific audiences would be blocked from seeing the ads and were therefore “unaware of the opportunities in the advertisements.”
One sample ad for a restaurant, as described by Ferguson’s office, “excluded African-American, Asian-American, and Latinx ethnic affinity groups.” When reached by Ars Technica, the attorney general’s Communications Director Brionna Aho was unable to provide copies of the fake ads and directed Ars to a public records request process. Ferguson’s announcement included a screenshot of the site’s advertising-purchase interface, which included “ethnic affinity” labels.
The announcement pointed to Facebook’s assurances in February 2017 to “improve enforcement of its prohibition against discrimination in advertising,” then cited additional ProPublica reporting that showed Facebook had not held up its end of the bargain. As Ferguson’s office writes:
On November 21, 2017, reporters Julia Angwin, Ariana Tobin, and Madeliene Varner announced that ProPublica bought dozens of rental housing ads on Facebook, requesting certain categories of users be excluded from seeing the ads, including African-Americans, people interested in wheelchair ramps, and Jewish people. According to ProPublica, “Every single ad was approved within minutes.”
You down with AOD?
After acknowledging another Facebook filter change in light of that last ProPublica report, Ferguson’s office expressed continued concerns about Facebook’s ability to block discriminatory advertising. Even after those November 2017 changes, Washington state investigators were still able to “exclude people [from seeing advertisements] based on several other protected classes, such as sexual orientation, religious affiliation, and veteran status” and apply these discriminatory filters to ads for “public accommodations and insurance.” (Ferguson’s statement defines “public accommodations” as “all businesses open to the public.”)
Thus, Tuesday’s Assurance of Discontinuance includes two key, legally binding provisions: Facebook can no longer “exclude ethnic groups from advertisements for insurance and public accommodations” or “provide advertisers with tools to discriminate based on race, creed, color, national origin, veteran or military status, sexual orientation, and disability status.”
The AOD requires that Facebook pay the state of Washington $90,000 to cover “costs and fees.” Any future failure to abide by the AOD will constitute a violation of Washington’s Unfair Business Practices—Consumer Protection laws. It includes a pledge from Facebook to institute these ad-filter changes across all users in the United States.
“[The AOD] ensures that the changes are legally binding.”
When reached for comment, Facebook pointed to its own April 2018 announcement of internal rules changes, which the company claims is fully compliant with the terms reached with Washington this week. “We’ve removed thousands of categories from exclusion targeting,” that statement reads in part. “We focused mainly on topics that relate to potentially sensitive personal attributes, such as race, ethnicity, sexual orientation, and religion.”
“We appreciate Attorney General Ferguson’s attention to this important matter and are pleased to have reached an agreement with his office,” Facebook VP of State and Local Policy Will Castleberry said in a statement to Ars Technica. “We’ve worked closely with them to address the issues they’ve raised. Discriminatory advertising has no place on our platform, and we’ll continue to improve our ad products so they’re relevant, effective, and safe for everyone.”
When pressed about Facebook’s response, Communications Director Brionna Aho confirmed that Facebook and Ferguson’s office had open channels of dialogue through the 20-month investigation. “We appreciate that Facebook responded to our investigation in this manner, but the AOD is important because it makes sure the changes cover the full breadth of conduct we were concerned about, and it ensures that the changes are legally binding,” Aho said in an email to Ars Technica.
“Also, the [April] blog post does not address public accommodations or insurance or targeting categories such as country of origin, veteran status, or disability, which are all part of our AOD,” Aho added.