IS THE GRASS GREENER ON THE OTHER SIDE OF THE GEOFENCE? THE FIRST AMENDMENT AND PRIVACY IMPLICATIONS OF UNAUTHORIZED SMARTPHONE MESSAGES.

• Author: Wesner, Kearston L.

CONTENTS INTRODUCTION 1 I. CORPORATE POLITICAL SPEECH AND THE FIRST AMENDMENT 4 II. THE PRIVACY OF MEDICAL INFORMATION 9 A. Section 5 of the Federal Trade Commission Act 13 B. The Privacy Tort of Intrusion Upon Seclusion 16 III. PROTECTING USERS' PRIVACY THROUGH A NEW FEDERAL STATUTE 19 A. Proposed Laws and Industry Guidelines 19 B. What Elements Should a Federal Statute Include? 20 CONCLUSION 23 INTRODUCTION

"Pregnancy Help." "You Have Choices." "You're Not Alone." In 2015 and 2016, young women in or near various medical facilities (including reproductive health clinics and methadone clinics) in five states received messages like these on their smartphones. (2) The messages ostensibly were designed to discourage "abortion-minded women" (3) from terminating pregnancies at the clinics. But the messages weren't invited, and they weren't welcome. They were thrust upon the smartphone users by a company called Copley Advertising. To accomplish this feat, Copley used a technology called geofencing.

Geofencing is a location-based tool targeting users of internet-enabled devices, such as smartphones, in a predefined area. Through Global Positioning System (GPS) coordinates, individuals or companies can define geographic perimeters and build virtual fences (called "geofences") around these areas. (4) Identifying information from the users' smartphones--such as GPS information or wireless Internet access information (5)--can then be used to target users within, or exclude them from, that virtual boundary. (6)

Often, this technology is relatively benign. For example, the retail company Target uses geofencing technology to push advertisements to prospective shoppers within a certain radius of Target stores. (7) When potential customers enter that predefined radius, they receive messages regarding various deals at Target. To obtain these notifications, though, users must have the Target mobile application installed, have Bluetooth turned on, and opt in to receive these messages. (8) Because these users elect to receive such advertising, and can stop receiving the messages at will by disabling or removing the app or turning off Bluetooth, this use of geofencing technology typically poses few legal or ethical concerns--assuming that the users have been properly notified of how their data is being used. (9)

Copley's practices were detailed in an Assurance of Discontinuance ("Assurance") entered into between Copley and the Attorney General of Massachusetts in April 2017. (10) According to the Assurance, Copley's use of geofencing technology was arguably more nefarious because it identified, or "tagged," users' smartphones and caused third-party advertisements to display on mobile applications for up to 30 days. When users clicked on the messages, a webpage opened with abortion alternatives and access to a live "pregnancy support specialist." (11) Copley's sole employee, John Flynn, asserted that Copley could "set up a mobile geofence around an area--Planned Parenthood clinic[s], hospitals, [and] doctor's offices that perform abortions." (12) In fact, Flynn claimed that Copley could "tag all the smartphones entering and leaving the nearly 700 Planned Parenthood clinics in the U.S." (13) On Twitter, Flynn further noted that "Copley's advertising can drill down to age and gender." (14)

For example, Copley contracted with two companies: Bethany Christian Services, which provides pregnancy counseling, and RealOptions, which has California-based crisis pregnancy centers. Copley determined the geolocation of users near various medical facilities and disclosed that information to Bethany and RealOptions so the third parties' messages could be delivered to the targeted users. Users who received the messages were unaware that Copley had tagged their devices or disclosed their geolocation. (15)

The Assurance of Discontinuance states that after learning of Copley's practices in other states, Massachusetts Attorney General Maura Healey proactively sought to characterize them as "unfair or deceptive" under the Massachusetts Consumer Protection Act. Specifically, Healey said Copley's practices "intrude[ ] upon a consumer's private health or medical affairs or status and/or result[ ] in the gathering or dissemination of private health or medical facts about the consumer without his or her knowledge or consent." (16) Although admitting no fault in the Assurance, Copley promised to abstain from geofencing within "the Vicinity of any Medical Center located in the state of Massachusetts to infer the health status, medical condition, or medical treatment of any person." (17)

The Assurance raises some questions, however. First, Copley claimed its First Amendment rights were violated because corporate political speech is protected by the First Amendment. And second, Copley argued that its "right to free speech should not be marginalized because government officials do not agree with the message of their advertisement." (18) If Healey, in fact, censured Copley based on its message content, then Copley's argument has weight. To add fuel to this argument, numerous other companies use geofencing technology without attracting the attention of the Attorney General of Massachusetts.

This study explores the relationship between the First Amendment and regulating the use of geofencing technology to deliver targeted messages. The paper poses three questions: (1) can Copley's practices be curbed consistent with the First Amendment; (2) to what extent, if any, do Copley's practices violate individuals' privacy expectations; and (3) what would reasonable restrictions on the use of geofencing technology include?

To analyze these questions, this study employed traditional legal research methodology. A Westlaw search identified relevant law review articles for background information. Additionally, a Westlaw search for all federal and state cases involving the terms "geolocation" or geofencing" yielded 408 cases, which were filtered to exclude criminal cases (involving governmental use of geolocation technologies for surveillance purposes) and cases unrelated to privacy. The remaining 315 cases--mostly from the Northern District of California--were analyzed to determine how courts have viewed the privacy implications of electronic data collection and use, including geolocation technology. Finally, this paper also analyzed Federal Trade Commission ("FTC") reports to inform the analysis of the FTC's guiding principles regarding geolocation technology.

1. CORPORATE POLITICAL SPEECH AND THE FIRST AMENDMENT

   Copley's speech has been characterized as "quite crass behavior" and even "predatory." (19) Yet Copley claimed Healey unfairly targeted the content of its speech in violation of the First Amendment. (20) This section argues that in light of Supreme Court decisions on abortion-related speech, Healey's actions in censuring Copley could be read as consistent with First Amendment principles. The key here is that if Healey's actions focused not on the content of Copley's speech, but on the "predatory" nature of Copley's practices--particularly the unauthorized use of geofencing technology to obtain and share users' sensitive information with third parties--then Healey's actions would pass muster. However, if Healey were to have targeted Copley based on the content or "crassness" of Copley's messages, this would violate the First Amendment.

   Corporate political speech--which includes even crass corporate speech--is strongly protected under the First Amendment. In Citizens United v. Federal Election Commission, the Supreme Court held that the First Amendment protects the core political speech of companies just as strongly as it does for individuals. (21) Citizens United, a nonprofit corporation, successfully argued in that case that corporations have a First Amendment-protected right to finance speech that expressly advocates the election or defeat of a candidate for federal office. (22) Until Citizens United, the Bipartisan Campaign Reform Act of 2002 ("BCRA") prohibited corporations from exercising their political voice in this manner. (23) However, in invalidating the BCRA's ban on corporate expenditures, the Court affirmed that First Amendment speech rights extend not just to individuals but to corporate entities.24 Although Citizens United did not equate corporations with people, it did signal that speech will be treated equally, whether it comes from a corporation or a person. Perhaps the clearest pronouncement of the Court's intentions can be found in Justice Kennedy's Citizens United opinion, which stated, "[P]olitical speech does not lose First Amendment protection 'simply because its source is a corporation.'" (25)

   The principle that political speech should be afforded the strongest protections has been stated numerous times by the Supreme Court. (26) For example, in Buckley v. Valeo, the Court said:

   Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' (27) Protecting the robust discussion of political issues is central to the First Amendment. Therefore, using consumer protection laws to stifle or silence political discourse should, as one scholar said, "give people pause." (28)

   Despite the limitations implied by its name, "core political speech" is not reserved for speaking out about candidates running for office in governmental elections. (29) It encompasses a diverse array of activities, from speech about income tax referendums to the anonymous distribution of leaflets about a ballot issue. (30) In this vein, abortion-related speech has been characterized as political. Thus, the Supreme Court has on multiple occasions...