Examining the Privacy Practices of Six Major Internet Service Providers
38
Finally, the use by several of the ISPs in our study of race and ethnicity data (or proxies for such
data such as location data)
131
for advertising purposes and the sale of such data to unrelated businesses
raises concerns, particularly around the practices of “digital redlining,” in the same way that such use by
edge providers does. As early as 2013, one study showed how Google searches of Black-sounding
names yielded ads related to arrest records more often than searches of less ethnically-sounding names,
regardless of whether there was an arrest record associated with that name.
132
Similarly, reports indicate
that certain minority populations are targeted for fast food and alcohol advertisements.
133
More
recently, the Department of Housing and Urban Development charged Facebook, Inc. with violating the
Fair Housing Act of 1968 by allowing advertisers to restrict housing ads based on characteristics like
race, religion, and national origin.
134
On the financial side, there are concerns that minority populations
may be shown ads for less desirable financial products than their white counterparts. As these examples
demonstrate, the use of consumers’ personal information for advertising not only raises privacy concerns
but also civil rights concerns. Indeed, this form of “digital redlining” could reverse any progress on civil
rights issues if a business is able to discriminate in its advertising buys based on, for example, a person’s
color or religion, or based on a proxy that effectively discriminates against certain races or religions.
135
Even where businesses do not intend to discriminate, certain uses of consumers’ personal information
could disparately impact certain groups.
136
131
Proxy discrimination occurs when “the predictive power of a facially neutral characteristic is at least partially attributable
to its correlation with a suspect classifier.” See generally Anya E.R. Prince & Daniel B. Schwarcz, Proxy Discrimination in
the Age of Artificial Intelligence and Big Data, 105 I
OWA L. REV. 1257 (2020). The algorithms identify seemingly neutral
characteristics to create groups that closely mirror a protected class, and these “proxies” are used for inclusion or exclusion.
132
Latanya Sweeney, Discrimination in Online Ad Delivery: Google Ads, Black Names and White Names, Racial
Discrimination, and Click Advertising, 11 ACM
QUEUE 3 (2013), https://queue.acm.org/detail.cfm?id=2460278.
133
See Karen Kramer et al., Targeted Marketing of Junk Food to Ethnic Minority Youth: Fighting Back with Legal Advocacy
and Community Engagement, C
HANGELAB SOLS. (2012),
https://www.changelabsolutions.org/sites/default/files/TargetedMarketingJunkFood_FINAL_20120912.pdf
(published in
ADVANCES IN COMMUNICATION RESEARCH TO REDUCE CHILDHOOD OBESITY (Jerome D. Williams et al. eds., 2012); Alcohol
marketing in the digital age,
DIGITAL ADS, http://digitalads.org/how-youre-targeted/publications/alcohol-marketing-digital-
age-1 (last visited Sept. 30, 2021) (“An increasing number of online services now target Hispanics and African Americans. In
fact, it has been shown that youth of color consume more media, including digital media, than white youth, giving alcohol
marketers greater opportunity to target these groups.”).
134
Sec’y of Hous. & Urban Dev. v. Facebook, Inc., No 01-18-0323-8, 1, Charge of Discrimination, FHEO No. 01-18-0323-8
(Mar. 28, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf
.
135
See, e.g., Ava Kofman & Ariana Tobin, Facebook Ads Can Still Discriminate Against Women and Older Workers,
Despite Civil Rights Settlement, P
ROPUBLICA (Dec. 13, 2019), https://www.propublica.org/article/facebook-ads-can-still-
discriminate-against-women-and-older-workers-despite-a-civil-rights-settlement.
136
See Elisa Jillson, Aiming for Truth, Fairness, and Equity in Your Company’s Use of AI, FED. TRADE COMM’N (Apr. 19,
2021), https://www.ftc.gov/news-events/blogs/business-blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai
;
BIG DATA, supra note 114, 17–21; Latanya Sweeney, Online Ads Roll the Dice, FED. TRADE COMM’N (Sept. 25, 2014),
https://www.ftc.gov/news-events/blogs/techftc/2014/09/online-ads-roll-dice.
FEDERAL TRADE COMMISSION FTC.GOV