By: Brandon Larrabee

With all due respect to a congressman’s efforts to get a Twitter cow to stop making fun of him[1], the most important social media legal action of the last few weeks had little to do with the actual contents of posts on the sites and more to do with housing law.

On March 29, the U.S. Department of Housing and Urban Development filed an administrative action saying that Facebook violated fair-housing laws through the targeting of ads on the social media giant’s site.[2] That followed Facebook’s settling a group of complaints accusing the company of parceling out ads on a variety of discriminatory grounds.[3] In addition to housing, for example, the company faced allegations that it facilitated showing some job advertisements to men instead of women.[4] That led to the company announcing new policies on ad targeting, including restrictions on targeting for particular types of advertisements:

Advertisers offering housing, employment and credit opportunities will have a much smaller set of targeting categories to use in their campaigns overall. Multicultural affinity targeting will continue to be unavailable for these ads. Additionally, any detailed targeting option describing or appearing to relate to protected classes will also be unavailable.[5]

Those actions are just the latest in what seems like an onslaught of legal maneuvers probing what, exactly, Facebook and sites like it can and cannot do under the nation’s existing laws. It is also highlighting the heightened legal exposure that Facebook, Twitter, and their industry-mates could face as they become ever more integral to American life.

For example, the D.C. attorney general hit Facebook with a lawsuit over the Cambridge Analytica controversy.[6] That is not the only election-related issue facing Facebook; along with Google, the company recently paid fines over violations of Washington rules concerning campaign advertising.[7]

Twitter’s legal teams have been working to swat away lawsuits alleging it was materially supporting terrorism because groups like ISIS use the site, though those attempts have been unsuccessful so far.[8] Snapchat has battled claims that one of its filters might prompt drivers to speed.[9]

That is in addition to more widely reported issues like whether social media sites are dumping certain users for their viewpoints[10] and gobbling up users’ data despite Europe’s new privacy law.[11]

Some of this is to be expected. Back when Facebook and Twitter were simply ways to keep friends updated on life events or wry observations, social media was little more than a diversion. But now we use these sites in a variety of ways, like making recommendations[12] and buying and selling goods.[13] That brings the social media sites face(book) to face(book) with some of the same legal issues that more traditional businesses have been navigating for years.

It has also prompted some to push for a new way of regulating the companies. K. Sabeel Rahman has called for treating some tech companies like utilities, given “how the information economy has enabled private control over new online platforms increasingly vital to economic and social functioning.”[14] Whatever the label, with an ever-growing list of legal challenges, some form of regulation might become more palatable to social media companies if they keep racking up the billable hours.

 

[1]SeeDaniel Victor, Devin Nunes Sues Twitter for Allowing Accounts to Insult Him, N.Y. Times(Mar. 19, 2019), https://www.nytimes.com/2019/03/19/us/politics/devin-nunes-twitter-lawsuit.html.

[2]SeeSara Salinas, Trump Administration Charges Facebook with ‘Discriminatory’ Housing Advertising Practices, CNBC (Mar. 29, 2019), https://www.cnbc.com/2019/03/28/trump-administration-sues-facebook-over-discriminatory-advertising-practices.html.

[3]SeeLarry McShane, Red-Facebooked! Social Networking Company Settles Five Lawsuits, Pays $5M over Alleged Discrimination,N.Y. Daily News(Mar. 19, 2019 5:35 PM), https://www.nydailynews.com/news/national/ny-facebook-lawsuit-settlements-20190319-47hocolaazbqnots6n66hi5ppi-story.html.

[4]SeeAlexandria Fernández Campbell, Facebook Allowed Companies to Post Job Ads Only Men Could See. Now That’s Changing, Vox(Mar. 21, 2019 4:20 PM), https://www.vox.com/2019/3/21/18275746/facebook-settles-ad-discrimination-lawsuits.

[5]Sheryl Sanderg, 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/.

[6]SeeTony Romm, Brian Fung, Aaron C. Davis & Craig Timberg, ‘It’s About Time’: Facebook Faces First Lawsuit from U.S. Regulators After Cambridge Analytica Scandal, Wash. Post(Dec. 19, 2018), https://www.washingtonpost.com/technology/2018/12/19/dc-attorney-general-sues-facebook-over-alleged-privacy-violations-cambridge-analytica-scandal/?utm_term=.8f41a5a028f3.

[7]SeeEli Sanders, Facebook and Google Pay $455K to Settle Political Ad Lawsuits in Washington State, The Stranger: Slog(Dec. 18, 2018 12:04 PM), https://www.thestranger.com/slog/2018/12/18/37206156/facebook-and-google-pay-nearly-450000-to-settle-political-ad-lawsuits-in-washington-state.

[8]See, e.g., Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018); Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. 2018).

[9]SeeEugene Volokh, Lawsuit Against Snapchat Encouraging Speeding Can Proceed, Reason: Volokh Conspiracy(June 6, 2018 8:17 PM), https://reason.com/volokh/2018/06/06/lawsuit-against-snapchat-encouraging-spe.

[10]SeeRobert Burnson, Twitter Beats Censorship Lawsuit by Banned White Nationalist, Bloomberg(Aug. 23, 2018 10:07 PM), https://www.bloomberg.com/news/articles/2018-08-24/twitter-beats-censorship-lawsuit-by-banned-white-advocate.

[11]SeeRussell Brandom, Facebook and Google Hit with $8.8 Billion in Lawsuits on Day One of GDPR, The Verge(May 25, 2018 10:21 AM), https://www.theverge.com/2018/5/25/17393766/facebook-google-gdpr-lawsuit-max-schrems-europe.

[12]See Establish Your Reputation with Recommendations, Facebook: Business, https://www.facebook.com/business/recommendations.

[13]SeeFacebook Marketplace, https://www.facebook.com/marketplace/.

[14]K. Sabeel Rahman, The New Utilities: Private Power, Social Infrastructure, and the Revival of the Public Utility Concept, 39 Cardozo L. Rev.1621, 1668–69 (2018).

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