In a move applauded by a wide coalition of
companies doing business online, Maine's attorney general recently decided that she will not enforce a law banning the use of personal information about minors
for marketing purposes that went into effect on September 12. The "Act To Prevent Predatory Marketing Practices against Minors", prohibits companies from collecting personal
information–such as name and e-mail address–from minors without receiving
verifiable parental consent. The
restrictions are considerably broader than the federal Children's Online
Privacy Protection Act ("COPPA"), applying to information related to
everyone under 18 (COPPA is limited to children under 13) and extending to such
information collected offline as well as on.
If enforced, it would have compelled sites with broad appeal to
teenagers, like Facebook and MySpace, as well as news, education and other
sites requiring registration, to verify the ages of users from Maine and then
obtain permission from the parents of minors from the state. In addition, the Maine Independent Colleges
Association, argued that the law would prevent Maine colleges from sending
marketing materials to prospective students without first obtaining consent
from their parents. Before the attorney general decided to not to enforce the
law, a group of companies including online advocacy coalition NetChoice (whose
members include AOL, eBay, IAC, NewsCorp and Yahoo!, among others), challenged
it in federal court, alleging that it violated the First Amendment and Commerce
Clauses of the US Constitution and is preempted by COPPA. The suit was dismissed last week on consent
of the parties when the AG announced her decision. However, prior to granting the dismissal, the
federal judge to whom the case was assigned indicated that he agreed with the
plaintiff's that the law is likely unconstitutional. The law was originally
focused on protecting the health-related information of those under 18 in an
attempt to prevent pharmaceutical companies from using such information to
market drugs to minors. As the proposed
bill passed through the Maine legislature, "personal information" was
included in the marketing prohibitions.
While the potential upheaval to many companies that would result from
enforcement of the Maine law was real, it does not appear that this law is
signaling a trend by the states to dramatically expand the coverage of their
privacy laws. In fact, the law's author,
Maine state senator Elizabeth Schneider, admitted that she intended the law to
be limited to health-related information.
Apparently, the broader coverage was added with little notice or debate.
The Maine Senate's judiciary committee is planning on reviewing the bill in the
upcoming legislative session in order to enact amendments to address the
concerns that have been raised. However,
while the attorney general's office will not be enforcing the law until then,
the private right of action remains on the books. It is unclear whether any such suits brought
could survive a constitutional challenge on the same grounds as those brought
in the dismissed lawsuit. But the
specter of incurring costs to defend any such suits hangs over any company
conducting business online since doing so on the internet means doing business
in Maine.
