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Personal Injury Geofencing – Is it Ethical?

Here at Goldstein Bender & Romanoff, we not only advocate for the rights of injured individuals, we also like to stay up-to-date on the modern ways in which injured individuals can obtain legal representation. Geofencing is but one of the most recent technological ways in which some personal injury law firms are reaching these injured individuals.

But what exactly is geofencing? Geofencing is the use of GPS, Wi-Fi, RFID, or cellular data technology to create a virtual geographic boundary, enabling software to trigger a response when a mobile device, like a cell phone, enters or leaves a particular area, known as a geofence. As consumers, we’ve all been exposed to some form of geofencing. For example, retailers have used geofencing to trigger ads on social media, or deliver location-based marketing data like emailing coupons, notifications, and other data to your cellular device whenever you enter a geofenced area or use their Wi-Fi.

But how does this affect someone injured as a result of another’s negligence? Recently, some law firms have started utilizing geofences around emergency rooms and chiropractic offices in order to advertise their services to prospective injured clients. For example, a patient could be waiting in the emergency room and start to receive attorney advertisements on numerous devices; whether it be ads on social media or their GPS. The ethicality of utilizing geofencing for this purpose is controversial in several states, like Massachusetts[1]. Privacy advocates have pointed to the trickling effect of allowing personal injury attorneys to geofence hospitals[2], arguing that there is nothing to stop criminal defense attorneys from geofencing police stations or tax attorneys to geofence collection offices for prospective clients.

On the other hand, law firms in states such as New York, Tennessee, and California, insist that the benefits of this technology allow for better access to legal services by targeting individuals who have been injured and are more likely to make a personal injury claim. Further, it is unclear whether attorneys using geofences violate HIPAA because HIPAA’s patient privacy rules apply to healthcare providers, health plans, and business associates of HIPAA covered entities. Although an argument can be made that attorneys may technically fall under “business associates,” attorneys using geofencing are unlikely to violate HIPAA because HIPAA covered entities are not supplying any protected health information[3].  The only information being supplied through geofencing in this case is a person’s digital location which is not provided by any healthcare company, thereby not violating HIPAA.

Although this practice may not violate HIPAA, it is still up to debate whether attorneys using geofencing violate state or federal laws other than HIPAA, and will likely be a matter for State and Federal regulatory authorities. Only time will tell if this new strategy will be embraced in Illinois.

 

— Christine S. Kim

 

[1] See AG Reaches Settlement with Advertising Company Prohibiting ‘Geofencing” Around Massachusetts Healthcare Facilities: http://www.mass.gov/ago/news-and-updates/press-releases/2017/2017-04-04-copley-advertising-geofencing.html

[2] See Commonwealth of Massachusetts Assurance of Discontinuance, https://www.huntonprivacyblog.com/wp-content/uploads/sites/28/2017/04/nDP.pdf

[3] See Could Law Firms Targeting Patients in ER Rooms Using Geofencing Technology Violate HIPAA? https://www.hipaajournal.com/could-law-firms-targeting-patients-in-er-rooms-using-geofencing-technology-violate-hipaa/