Massachusetts has built a new buffer zone around reproductive health clinics to fend off protesters. Granted, this one is digital, but it’s just as debatable as the physical buffer zone law that was struck down in 2014 by a unanimous US Supreme Court.
On Tuesday, Attorney General Maura Healey struck a deal with Boston-based Copley Advertising that bars the company from using smartphone location tracking to detect people approaching clinics and send them antiabortion ads.
I think a court would smack down the state’s attempt to stop antiabortion activists from transmitting their messages to people’s cellphones. But it’s possible for an activity to be perfectly legal and perfectly awful at the same time.
Many advertisers use ads that are tailored to a user’s general location. When I leave Boston for Chicago, for example, I start getting ads for Chicago retailers on my phone. Copley Advertising uses “geofencing,” a much more precise technology that detects when the phone approaches a specific geographic area — a neighborhood, or a city block, or even a particular building.
To see geofencing at work, launch the messaging app Snapchat. It offers “geofilters” that can identify your general location and superimpose it on top of a photo. The Globe is in Dorchester, down the street from the University of Massachusetts Boston campus, so Snapchat offers to add a
UMass Boston logo to my photos.
Copley erected geofences around 140 abortion clinics in five cities, including New York and St. Louis. If anybody with a smartphone got close to one of these locations and turned on a phone, he or she might see antiabortion advertisements popping up inside Web browsers or other apps.
To Healey, this is an unfair use of a person’s personal information — in this case, his or her proximity to a medical facility. So Healey confronted Copley and worked out a deal that forbids the use of location data to target health care messages to anyone visiting any kind of medical facility. Copley has never run its ad campaign in Massachusetts. Now it never will.
Copley’s chief executive John Flynn insists he did nothing wrong. On his blog, Flynn wrote that “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.”
I think Flynn has the Constitution on his side. I also think his ad campaign is a dreadful idea. Scaring people is a lousy way to change minds. And this campaign is scary, not because of what’s in the ads, but because of how they’re delivered. When smartphone ads are based on your location, advertising starts to feel like surveillance. Online marketers have a name for this — the creepy factor. It’s a big reason why few major companies use geofencing.
In a bid to comfort consumers, two major trade associations, the Digital Advertising Alliance and the Network Advertising Initiative, adopted voluntary standards for geofencing ads. Both say that such ads should only be sent to people who’ve agreed in advance to accept them.
Copley’s campaign flunks that standard. It can track anybody who approaches a clinic, and can send them ads without consent.
How does Copley track people’s locations? The company refused to comment. I asked the big four cellular carriers how they deal with their customers’ location data; only AT&T called back, to say that it never sells this data to third parties without a customer’s explicit permission. But President Trump recently signed a bill to overturn tough privacy rules for online network operators, which could encourage phone companies to put location info on the auction block.
Copley might rely on data collected from apps installed on the recipient’s phone. Many apps track our movements and sell this data to advertisers. They generally don’t sell personal data like names and addresses. But the people receiving the ads don’t know that.
Imagine a woman visiting a reproductive health clinic and encountering a traditional protest. That guy with the picket sign doesn’t know who she is. But inside the clinic waiting room, the woman checks her smartphone and finds an ad urging her to have the baby. She realizes somebody knows she’s there. What else do they know about her? Will they trail her down the street? Will they follow her home?
The ads probably will. In a presentation to potential clients, Copley boasts it can keep sending them for up to 30 days. That could seem like digital stalking. Copley even claimed it could identify phone users by age and sex. I’m not sure where it gets this data, but it clearly implies that Copley knows more about people than their locations. How much more?
It’s creepy, right down the line, and likely to win the antiabortion movement more enemies than friends. Whatever the legal merits of Healey’s position, right-to-lifers should send her a thank-you note.