Geofencing. Maybe you’ve heard of the concept? It is a use of technology (often but not only for marketing purposes) where a person’s physical location (usually tracked through their smart phone) results in them receiving some sort of tailored message or advertisement. Here is a non-comprehensive starter resource or two.
In what is often posed as a much-lamented concept in a room of lawyers (usually defense lawyers) is how such a technology could be used by a personal injury firm to target their ads at people who are within a technological “fence” of say 1/4 mile of an emergency room.
Now, if you are inclined to think the whole concept is a bad idea, then you might take that “target” concept and refer to the conduct as “geotargeting” rather than “geofencing.” That certainly sounds more menacing.
Whatever you call it, there is a patent lawsuit in Delaware that is getting some legal news publicity because the trial judge has raised questions about the alleged use by the Defendant in the case of this sort of technology to get its version of events out into the public arena. Bloomberg Law has an article about it out today and it contains a short quote from me. You can read the article at this link:
Geotargeting Debate Makes Comeback in Delaware Patent Dispute
If you cannot access the story (it was not behind a paywall when I checked today: the short version is that leading into a high-profile patent trial in Delaware, the defendant put advertising up telling its side of the events, and the trial judge has raised concerns about whether the communications – by being targeted to a particular geographic area — amount to a violation of the rules against improper communications with potential jurors.
Now, unsurprisingly to anyone who knows me, I offered much more expansive thoughts to the reporters that did not find a place in the article. So that someone might see them, I offer them here (slightly restated):
As I briefly say in the article, I do think Judge Murphy’s concerns might have some viability, but a violation of RPC 3.5 rather than RPC 3.6 seems a real stretch. I think RPC 3.5 is a stretch for at least two reasons: (1) I presume that the proceedings haven’t yet gotten to the point where there is a list of potential jurors rather than just the general sense that the jurors for the case will be pulled from the general area; and (2) even if there is such a list, a geotargeted message to a geographic area simply doesn’t look very much like the kind of communication directed at a particular prospective juror that RPC 3.5 exists to prohibit. What this really is like – if looking for an analog analogy — is if the company put a billboard up somewhere on a nearby freeway with their point and the URL for the company’s website with more information.
I do think there is a worthwhile discussion to be had about the implications of the trial publicity rule (RPC 3.6) if lawyers were involved. There are strong First Amendment arguments for the company being able to put its position out into the world and to even target that online to the most relevant geographic area. (Again, the billboard analogy.) Part of why any argument for a violation of RPC 3.6 would have a bit of a hill to climb though turns on the fact that (I’m assuming) voir dire has not begun yet with any particular prospective jurors, and so I am certain the court is going to vet the prospective jurors and excuse people who already have strong opinions etc. and then given instructions to whoever is seated about the stuff that they cannot consider, etc.
RPC 3.6 after all only prohibits public communications that “will have a substantial likelihood of materially prejudicing” the trial.
I do think geofencing (or geotargeting if one prefers) is a legal ethics issue that comes up from time-to-time in modern practice for lawyers focused on legal ethics issues, but from my experience (both in terms of when I am contacted by clients about it and when the few ethics opinions on the topic have been issued) is that the primary way it comes up is whether using it may run afoul of ethics rules in various states with respect to solicitations of potential clients. I am much more familiar with it being discussed in connection with things like “what would happen if a law firm paid for a targeted ad that would be delivered to people’s social media feed if they are using the app in a certain geographical area” for example. Often the main issue in that respect is a concern that someone would treat that advertisement as being a solicitation rather than just general advertising. There are a handful of states that still have very restrictive ethics rules about the ability to communicate directly with people known to be in need of legal services. Based on my understanding of how “geofencing” works though, no one can actually guarantee that any particular person will or will not see the advertising or communication so the concerns about it seem to me to be a bit overblown. Again, using the analog billboard example, law firms all the time choose particular desirable locations for those signs — locations intended to be more likely to be seen by people who might need the services being offered. And, for that matter, setting aside whether or not other laws that hamper where billboard advertisements can be placed make it impossible in any particular state, it doesn’t seem to me that it would be unethical for a law firm to put a billboard up in very close proximity to an emergency room or an auto-collision body shop saying that it represents motor-vehicle accident victims. If that’s true, then I’m not sure there is a compelling reason to treat ads served up through geofencing any differently.
(And, in case it is not otherwise clear, I am not saying that there aren’t some real problems with other ways that geofencing can be used in the world of law enforcement.)