Tech & Sourcing @ Morgan Lewis


Geotargeting—delivering content to users based on their geographic location—has become a popular and effective marketing tool. Yet proper implementation may be more nuanced than originally contemplated because certain locations, like medical facilities, attract intense privacy fears.

Massachusetts Attorney General Maura Healey recently announced a settlement of the commonwealth’s investigation of a digital advertising agency’s practice of establishing virtual fences (a/k/a geofencing) around reproductive health clinics and methadone clinics and then sending related third-party advertisements to mobile devices that had entered the virtual zone.

The sentiment that consumers should be able to seek medical care without worrying about being targeted by advertisers could gain traction with the Federal Trade Commission (FTC) and state regulators, and digital advertisers should prepare for potential enforcement actions. As we discussed in a recent post, the collection, disclosure, and use of geolocation data is already drawing attention from lawmakers.

Key aspects of avoiding the FTC’s ire include transparency, choice, and security. Brands should make sure that they thoroughly understand how advertisers use geofencing technology on the brand’s behalf. Companies utilizing or facilitating geotargeting should dust off the FTC report on mobile privacy disclosures. Proactive steps to alleviate privacy concerns include just-in-time and multiple disclosures, easy opt-out procedures, obtaining affirmative express consent from consumers, and industry self-regulation or best practices. Companies should consider limiting the extent and number of intrusions, as well as finding ways to provide clear, candid disclosures to bolster transparency. For example, privacy policies and other notices could emphasize the use of geotargeting and specifically note that geolocation data can be accessed and used multiple times over extended periods.

With every move now being tracked, advertisers that use geolocation technology and data without respecting privacy and choice will have nowhere to hide when regulators come knocking.