Commentary

Company Settles Probe Over Geotargeted Anti-Abortion Ads

When marketers talk about targeting consumers based on their location, they tend to mention strategies like sending coupons to people as they walk by stores.

But Copley Advertising, operated by Brookline, Massachusetts resident John Flynn, has been using geotargeting techniques for more controversial purposes: The company sends anti-abortion ads to the smartphones of “abortion-minded women” who visit health clinics, according to Massachusetts Attorney General Maura Healey.

"During 2015, Copley Advertising contracted with Bethany Christian Services, a global pregnancy counseling and adoption agency with at least one location in Massachusetts (in Franklin, Massachusetts), and RealOptions, a network of crisis pregnancy centers in California, to provide geofencing technology and serve advertisements on those agencies' behalf to 'abortion-minded women' who were either close to or entered the waiting rooms of women's reproductive health clinics," Healey alleges in a court document filed this week in Massachusetts.

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Copley targeted clinics in five cities: New York City, Columbus, Ohio; Richmond, Virginia; St. Louis, Missouri; and Pittsburgh, Pennsylvania, according to Healey. The ads, which carried text like "You Have Choices," took people to pages with information about pregnancy options and the ability to engage in a mobile chat with a "pregnancy support specialist."

Copley allegedly sent ads to people for up to 30 days after they were in the vicinity of a clinic.

"Consumers do not know that Copley Advertising has tagged their mobile device at the time they approach or enter a geofenced health care facility, or that Copley Advertising is disclosing their geolocation -- either directly or indirectly through other entities -- to third party advertisers who use it to infer the consumer's physical or mental health status or medical treatment for the purpose of serving tailored advertisements," Healey alleges.

The online publication Rewire, which wrote last year about Copley Advertising's anti-abortion campaign, reported that Flynn boasted in a PowerPoint that he can reach every U.S. Planned Parenthood, as well as abortion clinics, hospitals, doctors’ offices, colleges, and high schools.

"In his sales PowerPoint, Flynn said that he had already attempted to ping cellphones for RealOptions and Bethany nearly three million times, and had been able to steer thousands of women to their websites. The price tag for one of Copley’s campaigns, he said, was $8,000," Rewire wrote.

Healey argues in court papers that any attempt by Copley to send anti-abortion ads to women who have visited a health clinic in Massachusetts would violate the Massachusetts Consumer Protection Act, on the grounds that a potential campaign "intrudes upon a consumer's private health or medical affairs or status and/or results in the dissemination of private health or medical facts about the consumer without his or her knowledge or consent."

Massachusetts' consumer protection law broadly prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."

Copley Advertising settled with Healey's office by promising to refrain from using geofencing techniques to infer health information about anyone near a medical center in Massachusetts.

Flynn denies violating the law. He argues he was subject to an enforcement action because his ads concerned a politically charged topic.

"The Massachusetts Attorney General's office singled out Copley Advertising to challenge what we believe was an exercise of free speech under the First Amendment," he said in a statement emailed to MediaPost. "Although we have not violated any lwas, we made an agreement with the A.G.'s office so we can devote our time and resources to working for our clients. Their right to free speech should not be marginalized because government officials do not agree with the message of their advertisement."

The settlement with Copley Advertising appears to mark the first time a consumer protection law has been used to prevent a company from engaging in GPS-based ad targeting.

But it may not be the last -- especially considering that Copley allegedly operates in other states that have their own versions of consumer protection laws.

For now, questions surrounding when advertising crosses the line into an unfair business practice remain unsettled. Jules Polonetsky, CEO of the think tank Future of Privacy Forum, says other uses of location data may not be as controversial as Copley's ads, but may still be sensitive. "The complexity of identifying which locations are sensitive make it unclear whether consumer protection statutes could easily be used broadly here," he says.

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