On April 4, 2017, the Massachusetts Attorney General’s office announced that it had settled with a digital advertiser following allegations the company was using geolocation technology to target ads to women visiting reproductive health facilities. Although the company denied that it geofenced clinics in Massachusetts, the AG indicated that such targeting would violate the Massachusetts Consumer Protection Act and has preemptively prohibited geofencing near medical centers in the Commonwealth.

The Assurance of Discontinuance discusses the practice of geofencing, a technique that allows an advertiser to tag an internet-enabled mobile device that then trips a virtual “fence” if the device enters a particular geographic area. Once a device has been flagged, the advertiser “causes third party digital advertisements to display on certain mobile applications the consumer accesses on that mobile device for up to thirty days.”

The AG’s press release states that Copley Advertising was hired to use geofencing to target advertisements for “Pregnancy Help” to “abortion-minded women sitting in waiting rooms at health clinics.” According to the settlement, Copley set up geofences around reproductive health centers and methadone clinics in several cities including New York, Richmond, St. Louis and Pittsburgh. After entering these geofenced locations, mobile users would be tagged to receive advertisements from pregnancy counseling and adoption agencies ostensibly aimed at persuading pregnant women not to proceed with an abortion.

Although highly effective at strategically reaching the desired demographic, Copley’s geofencing activities were not disclosed to targeted consumers and the tagged individuals did not opt in to sharing their geolocation data. Considering the sensitive nature of the private health information revealed by this type of location data, and the fact such data collection occurs without targeted individuals’ knowledge or consent, the Massachusetts AG determined that Copley’s practice of geofencing would constitute an unfair or deceptive act under Massachusetts law.

The no-fault settlement bars Copley from using “geofencing technology at or near Massachusetts healthcare facilities to infer the health status, medical condition, or medical treatment of any individual.”

Clearly the FTC is not alone in its interest in geolocation privacy. Other federal and state regulators, including other Attorneys General, may start to enter the fray as new technology facilitates increasingly specific marketing to individuals based on sensitive personal information.