Discriminatory Internet Discriminatory Internet Advertising and the Advertising and the Utilization of the Internet Utilization of the Internet for Testingfor TestingAn Advocate’s Ideas for Today and Tomorrow

Jim McCarthy

2010 HUD National Fair Housing Policy Conference

New Orleans, LA

§ 804 [42 U.S.C. § 3604] – § 804 [42 U.S.C. § 3604] – Discrimination in the sale or rental Discrimination in the sale or rental of housing and other prohibited of housing and other prohibited practicespractices

It shall be unlawful –

(c) To make, print, or publish, or cause to be made, printed,

or published any notice, statement, or advertisement,

with respect to the sale or rental of a dwelling that

indicates any preference, limitation, or discrimination

based on race, color, religion, sex, handicap, familial

status, or national origin, or an intention to make any

such preference, limitation, or discrimination.

Today’s SituationToday’s SituationThe statute and regulations currently in place

did not contemplate advertising of residential real estate via a medium like the Internet.

The Internet’s ease of utility and low-to-no cost make it an attractive alternative to more traditional print, TV, or radio advertising.

Both industry and individual housing providers are already using the Internet extensively to market housing whether for sale or rental.

Today’s SituationToday’s SituationHousing providers are using the Internet

because it offers:

New marketsInstant circulationThe ability to reach a broad audience

unconstrained by one’s immediate geography

These same advantages for housing providers, pose additional challenges for fair housing advocates when enforcing the Fair Housing Act.

Today’s SituationToday’s Situation 2008 National Association of REALTORS® study found that

buyers used a variety of resources when searching for a home:

Today’s SituationToday’s SituationThe Communications Decency Act (CDA)

at Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others.

As a result, we are forced to play “catch-up” when working to develop and implement tools to monitor and ensure that the intent of provisions of the Fair Housing Act relating to notices, statements, or advertisements are not violated.

How Did We Get Here?How Did We Get Here? In 1996, HUD repealed 24 CFR Part 109 –

Fair Housing Advertising.

The Achtenberg Memo on § 804(c) is now more than 15 years old.

Much of the advertising for housing on the Internet is not pre-screened by content providers before individual posters are able to “publish” their ad, meaning that the number of people who can make, print, or publish has increased exponentially.

How Did We Get Here?How Did We Get Here?In September 2006 HUD issued a

memo on Internet Advertising saying: “ Web sites do not provide an open market for unlawful discriminatory conduct…”

HUD has concluded that the CDA does not make Web sites immune from liability under the Fair Housing Act.

And yet, discriminatory advertisements on the Internet persist.

Samples of discriminatory Samples of discriminatory statements found in online housing statements found in online housing advertisementsadvertisementsRoom available to single white

mother with child or younger to middle-aged white couple.

I would love to house a single mom with one child; not racists, but white only.

See 2009 National Fair Housing Alliance Trends Report

www.nationalfairhousing.org

Samples of discriminatory Samples of discriminatory statements found in online housing statements found in online housing advertisementsadvertisements

African Americans and Arabians tend to clash with me so that won’t work out.

Requirements: Clean Godly Christian Male.

See 2009 National Fair Housing Alliance Trends Report

www.nationalfairhousing.org

Suggested Goals and Suggested Goals and ObjectivesObjectivesRealize greater compliance with § 804(c)

through all 21st century mediums for advertising, including the Internet, text messaging, etc.

Advocate for amending the Communications Decency Act (CDA) to establish clear liability for discriminatory notices, statements, or advertisements made via the Internet.

Suggested Goals and Suggested Goals and ObjectivesObjectives Immediately implement a national public service

announcement on HUD’s website that can be

mirrored on FHIP and FHAP agency websites that

makes individual posters aware of the CDA exemption

that shields Internet Service Providers from liability,

while leaving individual posters/users exposed to

liability under § 804(c).

Develop and fund a long-term education & outreach

campaign to increase awareness and foster greater

voluntary compliance with § 804(c) by individual

posters/users.

Suggested Goals and Suggested Goals and ObjectivesObjectives The Achtenberg memo on § 804(c) should be updated with

new guidance that addresses new technology. (Craigslist,

Twitter, Face book).

Additional guidance should be developed and issued on the

“readily apparent to an ordinary reader” standard

articulated in the Achtenberg memo.

Guidance on HUD and/or FHAP agency’s use of subpoena

power to compel Internet Service Providers to turn over

information on individual posters should be developed and

shared widely with HUD staff, FHAP & FHIP agencies.

Suggested Goals and Suggested Goals and ObjectivesObjectivesHUD should work with the National Fair

Housing Alliance (NFHA) to develop best practices for conducting internet advertising investigations; so that NFHA can train private fair housing organizations in these best practices while protecting the investigation methodology.

Any guidance should only be best practices, and NOT requirements since the Internet is a dynamic venue and as such any requirements would like become quickly antiquated.

Options to consider for Options to consider for investigating Internet investigating Internet AdvertisingAdvertisingSome possible best practices include:

Establish contact with poster/advertiser ASAP after the ad appears – if possible get a phone number or other contact information beyond what is available in the Internet ad.

File complaints ASAP after testing to facilitate identification of poster/advertiser and property being advertised.

Maintain log of email addresses, poster ID Numbers of ads that might violate the Act, in order to identify systemic violators.

Options for private groups to Options for private groups to consider when investigating consider when investigating Internet AdvertisingInternet Advertising

Create an education/outreach campaign around Internet advertising

www.EqualHousingOnTheNet.com

Website developed and maintained by Miami Valley Fair Housing

Center targeted at educating individual posters/users about §

804(c), and specifically about advertising on the Internet for a

roommate.

Options to consider for Options to consider for investigating Internet investigating Internet AdvertisingAdvertisingAggressively promote the

education/outreach campaign on the Internet.

Google Ad Words

With Google Ad Words, you can create and run ads for your business, quickly and simply. Run your ads on Google and its advertising network – you only pay when people click your ads.

www.adwords.google.com

Options to consider for Options to consider for investigating Internet investigating Internet AdvertisingAdvertising

Options to consider for Options to consider for investigating Internet investigating Internet AdvertisingAdvertising

Options to consider for Options to consider for investigating Internet investigating Internet AdvertisingAdvertisingWhen monitoring websites, capture screen

shots of websites, or use screen recording software to record on-screen activity when investigating websites, or Internet postings so that you have a true record of how you clicked through to the ad that is the subject of your investigation.

Software options include: Camtasia - for purchase Cam Studio – for FREE

Why do we need to do this Why do we need to do this work?work? Internet advertising and similar mediums is both

the now and the future.

Over $2 billion is expected to be spent on online real estate advertising per year this year, including traditional media outlet websites, search engines, lead generators and aggregators.

According to Investor’s Business Daily, real estate agents are also turning to “blogs” as a means of generating leads, promoting listings or providing pertinent property information to would be clients.

Why do we need to do this Why do we need to do this work?work?

People often parrot what they observe others doing; if we do not effectively address discriminatory advertising for housing on the Internet now, the problem will only worsen.

Thank you.