When the State of Maine enjoyed a reputation as a bellwether for presidential elections, this expression was in common parlance:
As Maine goes, so goes the nation?
A host of businesses and colleges are hoping that old adage has no relevance when it comes to new laws to protect kids online. Maine’s “Act To Prevent Predatory Marketing Practices Against Minors,” effective September 12, 2009, was the source of major controversy and litigation over the Summer because of the law’s extreme overbreadth. See, e.g. "Child-Proofing Your Ads: New Maine Law restricts Marketing to Minors", National Law Journal (August 4, 2009)
A lawsuit brought to enjoin the law from going into effect resulted in the plaintiffs and Maine’s Attorney General agreeing that the law could violate the First Amendment to the United States Constitution because of its overbreadth. U.S. District Judge John A. Woodcock dismissed the lawsuit without prejudice, observing that "[t]he Attorney General has acknowledged her concerns over the substantial overbreadth of the statute and the implications … and accordingly has committed not to enforce it.” The Order goes on to say any private suits brought under the law “could suffer from the same constitutional infirmities.” Thus, most observers believe that businesses run little risk from non-compliance with the law in light of the Judge’s observations even though they are dicta.
Even the sponsor of the law now recognizes that it has problems, but according to press reports blames that on the fact that no one raised any issues during the public hearings on the legislation leading to the law. The law is expected to be revised when the Maine legislature reconvenes in January 2010.
It was over the course of the Summer when Maine’s leaders came to recognize that the hastily-passed law, although bearing a laudable pro-kids/anti-predation title, may not have been exactly what they thought it was. The closer look prompted serious second thoughts and the lawsuit that effectively stays enforcement of the law.
- To start with, the Maine law goes well beyond predatory practices because it covers all marketing to people under 18 in Maine, whether you know they are under 18 or not. And it greatly exceeds the scope of the federal Children’s Online Privacy Protection Act of 1998 (“COPPA”).
- On a national level, COPPA requires web site operators to obtain verifiable parental consent before collecting personal information online from children. While COPPA applies to children under13 years old, the Maine law includes anyone under age18 and makes no distinction between information collection online or offline – it all is covered whether the business has a commercial web site or not. And unlike COPPA, which does not provide for a private cause of action, the Maine law allows individuals to bring civil suits and to seek punitive damages, equitable relief and attorney costs.
- Section 9552 of the Maine law prohibits knowingly collecting orreceiving "health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent." It also prohibits selling, offering to sell or otherwise transferring to another "health-related information or personal information about a minor."
- Section 9553 flatly prohibits using health-related or personal information about a minor for "marketing a product or service to that minor or promoting any course of action for the minor relating to a product." There is no parental consent exception. So, while businesses may be able to collect, receive and sell a minor’s information, as long the is verifiable parental consent, they may not use that information for marketing regardless of parental consent prior to collecting the data.
Like many state privacy laws, the coverage of the law extends to those wherever located who collect information from state residents. Thus, businesses nationwide are covered. And those businesses appear to be prohibited from sending to those under 18 in Maine any marketing information, even materials requested by Maine kinds like college information and volunteer service brochures. No provision is made in the law for non-profit or educational institutions. And, again, notably, the law does not require knowledge that the person to whom marketing information is sent is under 18, making compliance even more difficult.
At web sites where kids have signed up legally, the sites are banned from communicating with those people if there is a marketing message, even where there is a bona fide request for information.
And so, businesses of all types would have a hard time figuring out how to exclude Maine’s minors from their marketing efforts without thwarting their legal right to send information to people in the 49 other states, DC and the territories. That is why the lawsuit seeking an injunction against the law going into effect was brought. The judge’s order avoided an injunction against the State but made it clear that the law had Constitutional deficiencies.
States often are heralded as incubators of our nation’s privacy laws, but in Maine, the “baby” may not be exactly what the parents expected.