The law defines healthcare facilities as any governmental or private entity providing medical care or services, which could encompass many establishments on a New York City block.
“The law is a little bit vague,” said Jeremy Berkowitz, senior privacy director at law firm Paul Hastings. “In terms of New York, there has not been much guidance as to how you define health care facility. They still need to figure out how that is going to be interpreted.”
Tricky to enforce
Despite these challenges, it’s up to the attorney general to charge a business for breaking the geofencing prohibition. And the office of the New York attorney general still has to decide if it wants to enforce the ban.
“When you think about financial crime and counterterrorism and drug reform … it’s not clear [the geofencing ban] is on the top 10 list of priorities,” Chapell said.
Berkowitz said that the government is most likely to go after advocacy groups and non-profits.
Geofencing cases are fairly rare, according to two legal sources, who pointed to a case in 2017 when the Massachusetts Attorney General settled with an advertising firm that was hired to send pro-life ads to abortion seekers.
It would take resources and investigations for the government to determine whether a business violated a geofencing ban, work that could be cumbersome but not impossible. For example, state officials could see whether they were served ads in health facilities or operated a tip line, said Eric Null, co-director of the privacy and data project at the Center for Democracy & Technology.
“There are ways to track the advertising system,” Null said. “There are questions of where the office wants to place their resources.”
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