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Usually, when Facebook is getting in trouble over ads, it’s because they’re making them more obnoxious. But, it turns out, over the last two years they’ve been allowing advertisers to decide which “ethnic affinity” sees which ads.

Facebook reportedly didn’t make this difficult. ProPublica found the problem simply by creating a housing ad and looking under lists of people to exclude. Housing in particular is a problem because of the Fair Housing Act of 1968, which explicitly forbids denying housing to any group solely based on their membership in a protected class. That includes putting in language like “Whites Only” into ads, which Facebook’s “Ethnic Affinities” category likely falls into.

If this sounds bad, or if you’re wondering how Facebook determines your racial identity since they don’t ask, the answer is they decide your racial affinity based on your data:

[Facebook privacy and public policy manager Steve] Satterfield added that the “Ethnic Affinity” is not the same as race — which Facebook does not ask its members about. Facebook assigns members an “Ethnic Affinity” based on pages and posts they have liked or engaged with on Facebook. When we asked why “Ethnic Affinity” was included in the “Demographics” category of its ad-targeting tool if it’s not a representation of demographics, Facebook responded that it plans to move “Ethnic Affinity” to another section.

And if Facebook decides someone is Black, and an employer takes out a job ad on Facebook that specifically excludes that particular “ethnic affinity,” this would bring the Civil Rights Act of 1964 into play.

But frankly, one has to ask what Likes and posts mark one’s “racial affinity” in the first place. As we’ve seen elsewhere, the very human flaw of racism can, even unintentionally, be injected into computer algorithms. This is especially worrying because Facebook, quite recently, has been outed as essentially having no idea what its users actually like and care about. Users could have been discriminated against for up to two years, which is as far back as Facebook claims the option was available, and be unaware of it.

ProPublica spoke to civil rights attorney John Relman, who called the news “horrifying” and “massively illegal. This is about as blatant a violation of the federal Fair Housing Act as one can find.”

Facebook could face federal action on this. Every ad Facebook has put up related to jobs, housing, and other areas the government monitors for discrimination is going to have to be reviewed, going back at least the last two years. The bigger problem, though, is that once again Facebook’s users have to learn another hard lesson about trust in the digital world.

(via Pro Publica)