New York State Assembly Considers Banning Targeted Mobile Advertising at Abortion Clinics

Written by Lindsay McKenzie

The New York State Assembly is considering banning digital advertisers from targeting visitors to healthcare facilities, including abortion clinics.

The bill, introduced on August 12, would prevent advertisers from setting up geofences around healthcare facilities, which, once crossed, can be used to target visitors with highly specific mobile ads.

Using GPS technology, advertising agencies can infer why someone might visit a particular location, such as a cancer clinic, reproductive health clinic, or facility that provides methadone, without violating health privacy laws. Advertisers can potentially use this information to market items such as wigs, deliver anti-abortion messages, or advertise expensive private rehabilitation centers.

Linda B. Rosenthal, a Democrat from Manhattan’s Upper West Side, introduced the anti-geofencing bill, which was referred to the Assembly’s Consumer Affairs and Protections Committee.

“While reproductive health clinics have long been the target of harassment, geofencing technology allows it to become even more intrusive, sending harassing messages to her personal cell phone for weeks on end and inferring their decisions by health,” Rosenthal wrote in his rationale for the bill. “A person’s visit to a healthcare facility should not open them up to harassment,” Rosenthal continued.

Few states have addressed targeted advertising using geofencing technology, although the Massachusetts attorney general reached an agreement with an advertising agency in 2017 banning it from advertising in Massachusetts health facilities. The Commonwealth has not made this practice illegal in the advertising industry.

Massachusetts advertising agency Copley Advertising LLC began using geofencing technology to target “abortion-conscious women” who visited reproductive health centers in 2015 with ads for an evangelical counseling agency in pregnancy and adoption. The ads included messages such as “pregnancy help” and “the choice is yours”. People who clicked on the ads were encouraged to speak with “pregnancy support” specialists and consider alternatives to abortion. The ads continued for weeks after patients first visited reproductive clinics.

“With Roe v. Wade overturned and attacks on reproductive healthcare providers on the rise, this legislation would ensure that New York State residents can seek care without virtual harassment by prohibiting geofencing in any healthcare facility in New York State,” Rosenthal wrote.

At the federal level, some lawmakers have attempted to ban the use of geofencing technology in targeted advertising. The Surveillance Advertising Ban Act of 2022, for example, was introduced in the House and Senate earlier this year, but has yet to make progress in either chamber.

Recent moves by some states to further restrict access to abortion and obtain data on those suspected of planning pregnancy termination have raised concerns about the privacy and security of healthcare data. Publications such as Gizmodo have issued recommendations that people wanting an abortion get a burner phone or avoid bringing devices into clinics or even a few blocks away to avoid unwanted detection and surveillance.

The Biden administration issued guidelines in June stating that abortion care providers and hospitals cannot legally share abortion data with law enforcement in most cases. The guidelines do not, however, prevent third parties from collecting and sharing location data.

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