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Discriminatory Internet
Advertising and the Utilization of
the Internet for Testing
An 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] – Discrimination in
the sale or rental of housing and other
prohibited practices

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 Situation

The 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 Situation

Housing providers are using the Internet because
it offers:
New markets
Instant circulation
The 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 Situation

2008 National Association of REALTORS® study found that buyers
used a variety of resources when searching for a home:
Today’s Situation

The 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?

In 1996, HUD repealed 24 CFR Part 109 – Fair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?

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 statements found
in online housing advertisements

Room 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 statements found
in online housing advertisements
 African Americans
and Arabians tend to
clash with me so that won’t work out.
 Requirements: Clean
Male.
Godly Christian
See 2009 National Fair Housing Alliance Trends Report
www.nationalfairhousing.org
Suggested Goals and Objectives

Realize 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 Objectives

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 Objectives

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 Objectives

HUD 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
investigating Internet Advertising

Some 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 consider
when investigating Internet 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
investigating Internet Advertising

Aggressively 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
investigating Internet Advertising
Fair Housing is for
roommates too! Find out your
obligations under the law.
www.equalhousingonthenet.com
Want a Christian Roommate?
Learn what you can and can't say in
Don't Break the Law
your advertisements.
Find out your obligations
www.equalhousingonthenet.com
when advertising for roommates.
www.equalhousingonthenet.com
Options to consider for
investigating Internet Advertising
Options to consider for
investigating Internet Advertising

When 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 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 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.