Associated Incidents
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April 2, 2013
Volume 11, issue 3
Discrimination in Online Ad Delivery
Google ads, black names and white names, racial discrimination, and click advertising
Latanya Sweeney
Do online ads suggestive of arrest records appear more often with searches of black-sounding names than white-sounding names? What is a black-sounding name or white-sounding name, anyway? How many more times would an ad have to appear adversely affecting one racial group for it to be considered discrimination? Is online activity so ubiquitous that computer scientists have to think about societal consequences such as structural racism in technology design? If so, how is this technology to be built? Let's take a scientific dive into online ad delivery to find answers.
"Have you ever been arrested?" Imagine this question appearing whenever someone enters your name in a search engine. Perhaps you are in competition for an award, a scholarship, an appointment, a promotion, or a new job, or maybe you are in a position of trust, such as a professor, a physician, a banker, a judge, a manager, or a volunteer. Perhaps you are completing a rental application, selling goods, applying for a loan, joining a social club, making new friends, dating, or engaged in any one of hundreds of circumstances for which someone wants to learn more about you online. Appearing alongside your list of accomplishments is an advertisement implying you may have a criminal record, whether you actually have one or not. Worse, the ads may not appear for your competitors.
Job applications frequently include questions such as: Have you ever been arrested? Have you ever been charged with a crime? Other than a traffic ticket, have you been convicted of a crime? Employers ask these questions to establish trustworthiness. Because others often equate a criminal record with not being reliable or honest, protections exist for those having criminal records.
If an employer disqualifies a job applicant based solely upon information indicating an arrest record, the company may face legal consequences. The U.S. EEOC (Equal Employment Opportunity Commission) is the federal agency charged with enforcing Title VII of the Civil Rights Act of 1964, a law that applies to most employers, prohibiting employment discrimination based on race, color, religion, sex, or national origin. Guidance issued in 1973 extended protections to people with criminal records.5,11 Title VII does not prohibit employers from obtaining criminal background information. Certain uses of criminal information, however, such as a blanket policy or practice of excluding applicants or disqualifying employees based solely upon information indicating an arrest record, can result in a charge of discrimination.
To make a determination, the EEOC uses an adverse impact test that measures whether certain practices, intentional or not, have a disproportionate effect on a group of people whose defining characteristics are covered by Title VII. To decide, you calculate the percentage of people affected in each group and then divide the smaller value by the larger to get the ratio and compare the result to 80. For example, suppose a company laid off comparable black and white workers at the same rate—25 percent of blacks and 25 percent of whites—then the ratio, 25 divided by 25, would be 100 percent. If the ratio is less than 80 percent, then the EEOC considers the effect disproportionate and may hold the employer responsible for discrimination.6
What about online ads suggesting someone with your name has an arrest record, even when no one with your name has been arrested? Title VII does not apply unless you have an arrest record and can prove the potential employer routinely uses ads or information from the company sponsoring the ads, and the result has an inappropriate chilling effect on hiring applicants with criminal records.
The advertiser may argue the ads are commercial free speech—a constitutional right to display the ad associated with your name. The First Amendment of the U.S. Constitution protects advertising. In a landmark decision, the U.S. Supreme Court set out a test for assessing government restrictions on commercial speech, which begins by determining whether the speech is misleading.3 Are online ads suggesting the existence of an arrest record misleading if no one by that name has an arrest record?
Assume the ads are free speech: what happens when these ads appear more often for one racial group than another? Not everyone is being equally affected by the free speech. Is that free speech or racial discrimination?
Racism, as defined by the U.S. Commission on Civil Rights, is "any attitude, action, or institutional structure which subordinates a person or group because of their color . . . Racism is not just a matter of attitudes; actions and institutional structures can also be a form of racism."16 Racial discri