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Will Federal Shield Law Save Facebook From Bias Suit?

SAN FRANCISCO — Lawyers for Facebook Inc. are fighting back against claims that the company violated federal antidiscrimination laws by allowing advertisers to exclude certain users from viewing social media promotions for housing, credit and employment opportunities.

A New York woman and two African-American Louisiana residents sued Facebook in November 2016 claiming that the social media site’s advertising portal allows ad-purchasers to target or exclude users on the basis of race, gender or religion. But in a motion to dismiss the suit filed Monday, Facebook’s lawyers at Munger, Tolles & Olson claim that Facebook expressly forbids advertisers from violating antidiscrimination laws and that the company can’t be held liable for the actions of third-party advertisers thanks to the broad immunities granted to internet companies by Section 230 of the Communications Decency Act.

“Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any,” wrote the Munger lawyers, led by partner Rosemarie Ring. “Facebook’s provision of these neutral tools to advertisers falls squarely within the scope of CDA immunity.”

 The CDA is something of a weapon of choice for internet companies facing a wide range of lawsuits. In recent months, Twitter Inc. has relied on CDA immunity provisions to elude claims that it provided material support to terrorist groups and executives at invoked the law to get criminal charges dismissed in a sex-trafficking case.

Ring’s colleague Jonathan Blavin, however, had less luck when he attempted to wield the CDA for Airbnb Inc. to block enforcement of a San Francisco ordinance that carries stiff penalties for companies providing booking services for illegal short-term rentals. U.S. District Judge James Donato rejected Airbnb’s argument and has referred that case out for settlement discussions.

One challenge for the Munger team is that Facebook created the drop-down tools that allow users to place ads based on targeted “affinity groups.” Facebook’s lawyers at Munger acknowledge in a footnote to Monday’s filing that since December the company has “disallowed” targeting based on ethnic affinity categories for ads offering housing, employment or credit opportunities.

But the company continues to maintain that its social advertising platform is a sort of “neutral tool” that a third party can use for either proper or improper purposes that falls under CDA protections. Ring wrote that “what makes the ads allegedly unlawful are the discriminatory targeting decisions that might have been made by some unidentified advertisers—not the neutral tools provided on Facebook’s Ad Platform.”

“The provision of these neutral tools does not transform Facebook into a content provider,” Ring wrote.

Ring didn’t immediately respond to messages Tuesday.

The case Onuoha et al v. Facebook is set for a hearing on June 1 before U.S. District Judge Edward Davila in San Jose.

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