Does the Native American Threatening to Sue Facebook Have a Good Case?

Last month, Dana Lone Hill had her Facebook account suspended because the social media site suspected she wasn’t using her authentic name. Lone Hill, a Native American and a member of the Lakota tribe, wrote in a blog post that her account was likely deactivated after she switched her last name from her Father’s (Lone Elk) to her mother’s (Lone Hill).

But when Lone Hill sent Facebook three accepted forms of ID to confirm her identity, the site demanded more sensitive information, such as a credit card and her Social Security number. Only after her story was picked up by various news outlets did Facebook reactivate her account and formally apologize.

Now, Lone Hill’s threatening to sue Facebook over its “real name” policy. While she doesn’t necessarily have a problem with the policy itself, she takes issue with the fact that Native Americans are forced to prove their identities on the site more often than others. For instance, Lance Browneyes, Shane and Jacqui Creepingbear and Mike Raccoon Eyes Kinney are just a few of the other Native American users who have had their accounts deactivated for allegedly not using their authentic names, and Lone Hill’s story is just the latest in this string of events.

While Lone Hill has been quick to say that she doesn’t believe the policy is racist, a number of reports haven’t been afraid to call it what it is: discrimination. Despite the fact that Facebook most likely wasn’t trying to discriminate, the policy still disproportionately affects a certain group of people – and a minority group, at that. But in an age where the United States’ discrimination laws haven’t quite caught up to addressing discrimination online, on what basis could Lone Hill sue?

The Problem with Facebook’s ‘Real Name’ Policy

According to Facebook’s name policy guidelines, users must provide their “authentic names” to ensure that “you always know who you’re connecting with.” This, in turn, prevents bullying, scams, hate speech and other types of unacceptable behavior, according to the social media site.

Therefore, users can’t have – among other things – any symbols, numbers, unusual capitalization or repeated characters in their names. Additionally, their middle names can’t be any words, phrases or nicknames, unless the nickname is a variation of their “authentic” name. If you look at the Native American names mentioned earlier, you may already see the problem.

Yet, Facebook does not review and evaluate users’ names itself, but relies on other users to flag names they believe to be fake. As a result, the site’s name policy is often inconsistently applied and, because not all users are forced to prove their identities on the website, the policy can disproportionately affect and even target certain groups. In this case, Native Americans.

The legal term for this is “disparate impact discrimination,” which results when a facially neutral policy has a discriminatory effect. While the discrimination isn’t intentional, it can still end up isolating a certain group.

For example, numerous disparate impact discrimination lawsuits have been filed against companies that screen job applicants with background checks. While background checks may not seem inherently discriminatory, basing employment decisions on information found in these reports may have a disparate impact on protected groups of people. For instance, many African Americans have allegedly been discriminated against by companies performing background checks because they have statistically higher rates of arrest than the general public. As such, they are often denied employment at a higher rate than other applicants.

Is Facebook’s Name Policy Illegal, Though?

Intentional or not, discrimination is discrimination. Yet, the legality of the policy – and the heart of Lone Hill’s proposed class action – may depend on whether Facebook can be considered a “place of public accommodation” under federal discrimination law.

Under Title II of the Civil Rights Act of 1964, “places of public accommodation” are prohibited from discriminating against people based on their race, national origin, color or religion. Yet, the Act only names certain establishments such as hotels, restaurants and concert halls as being places of public accommodation, and judges have been left to interpret the language themselves.

In Noah v. AOL Time Warner, for instance, the U.S. District Court for the Eastern District of Virginia held that a website was not a place of public accommodation. In that suit, the plaintiff alleged that AOL violated Title II of the Civil Rights Act by failing to properly protect him from harassing messages directed at his religion while commenting in an online chat room. The judge ruled that the Civil Rights Act did not apply to the website because “Congress intended the statute to reach only the listed facilities and other similar physical structures.”

Few other cases have addressed whether a website is a place of public accommodation under the Civil Rights Act. More lawsuits, though, have involved the same language contained in another anti-discrimination law: the Americans with Disabilities Act (ADA).

For example, in 1994, the First Circuit Court of Appeals was asked to decide whether an insurance company is a place of public accommodation under the ADA, even though the plaintiff had never physically stepped foot into the firm’s office before his coverage for AIDS-related medical conditions was denied. In holding that places of public accommodation are not limited to physical facilities, the court ruled that it would be “irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not.”

At least one court has applied this analysis to websites. In National Association of the Deaf v. Netflix, the plaintiff argued that Netflix’s Instant Streaming violated the ADA because it discriminated against deaf customers by failing to provide closed captions for all of the videos on the website. The U.S. District Court for the District of Massachusetts cited the First Circuit’s ruling and then elaborated:

“First, while such web based services did not exist when the ADA was passed in 1990 and, thus, could not have been explicitly included in the Act, the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology… Second, Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations… Consequently, while the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation.”

In essence, the judge held that paying to watch television shows and movies online was essentially equivalent to going to a movie rental store, and the lack of a physical location did not make the streaming service exempt from discrimination law. With regard to Facebook, however, it’s unclear whether this same logic would apply because the social media website doesn’t sell products directly to consumers, but instead sells advertising space to other companies.

Lone Hill may also be able to assert claims based on state discrimination laws, which often provide more protection than the federal anti-discrimination statutes. Given that Facebook’s headquarters are in California, the state’s Civil Rights Unruh Act may apply. The California law bars discrimination on a broader level and applies to “establishments of every kind whatsoever.”

Don’t You Have to Suffer Some Type of Harm to File a Lawsuit?

Yes, the person suing must have or will have suffered an “injury-in-fact” to sue, which can be an economic injury, non-economic injury or both. In the instance of Facebook, the injury-in-fact Lone Hill suffered would be the alleged discrimination she experienced based on her national origin.

For more information on the injury-in-fact that Facebook users suffer when they’re forced to use their real names, check out this article on who’s harmed by a real name policy.

So, Does Lone Hill Have a Good Case?

Lone Hill says that she wants to bring a class action against Facebook on behalf of all Native Americans who have been affected by the site’s name policy and hopes to get the website to change its ways. It may be a difficult case for Lone Hill to pursue and win – but that doesn’t mean it can’t be done.

If the proposed class action is successful, it will certainly set a precedent for future online discrimination cases. Furthermore, it will bring awareness to our nation’s outdated discrimination laws. But, most importantly, it will serve as a reminder for business owners that customers in both physical and virtual places of public accommodation deserve equal treatment.