Update on Maine Law preventing marketing to minors

On July 27th this year, we published a post on the new Maine Law banning the use of personal information about minors for marketing purposes. Briefly, the law regulates both the online and offline collection of personal information from users under the age of 18 and strictly prohibits any transfer of or use of personal information about minors for marketing products or services – regardless of from whom it was collected or whether a parent has consented to the collection and use. The law was set to take effect this month.

Unsurprisingly, it has created a huge outcry, with many companies affected asking for clarification and claiming that the law would be unworkable in its present form.

A coalition of media organizations and Web companies including maine colleges, AOL, Yahoo and eBay challenged the measure in court on Wednesday. The group claimed that the law violated the First Amendment, and the Children’s Online Privacy Protection Act, or COPPA, which bans the online collection of personal information from children under the age of 13. Among other arguments, they contend that the law would violate their First Amendment right to publish newsworthy information about teens, as well as restricting teens' right to receive information. The Web companies also say the measure would require them to block teens from their sites.

In the complaint, the Maine Independent Colleges Association, for example, protested that the law would prevent Maine colleges from sending marketing materials to minors who requested information without first obtaining parental consent. One problem is that marketers often don't know the exact ages of teens they are targeting. For example, a company might want to send ads to a list of college freshman that does not distinguish between the students who are 17 and those who are older.

The Maine Senate’s judiciary committee will review the bill before the new legislative session convenes in January. Maine's Attorney General Janet Mills told the Wall Street Journal today that she shares many people’s concerns about the constitutional issues presented by the statute and the rights of minors to access information, and therefore she will not be enforcing the law. Unfortunately, even though Maine’s attorney general will not enforce the law, private parties can still file costly class action lawsuits.

The challengers are seeking an injunction against the measure, which would allow private parties to sue for $250 damages per violation. The opponents say that because the law puts them at risk of civil lawsuits, the statute should be enjoined regardless of whether the Attorney General intends to enforce it.

“As well-intentioned as I think the sponsor is, [the bill] is just so poorly drafted that it causes a lot of problems that I don’t think they intended,” said Stephen Kline, counsel at Privo, an online identity and permissions-management company.

Thanks to Stephen for sending eModeration this update, and we'll be publishing further news on this as we hear it.

Update: 15th Sept 09
Stephen Kline has sent us through the following information:

"The coalition of colleges, media, and Internet companies that sued to enjoin enforcement of Maine’s Predatory Marketing law has agreed with the State of Maine to dismiss the suit after Maine’s Attorney General agreed not to enforce the law. The judge in the case agreed to the dismissal in a one-page order. http://bit.ly/AwwEf While the Attorney General’s non-binding agreement not to prosecute is a positive step, the dismissal still does not prevent the class-action bar from filing private suits. That being said, the judge attempted to warn off such suits by stating that “third parties are on notice that a private cause of action under [the Maine law] could suffer from the same constitutional infirmities” that both the coalition and the AG agree exist. The law is set to take effect Saturday.

Companies that currently collect personal information from minors should contact their lawyers for advice on the law’s application to their practices.