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Groups Seek Injunction Against Maine Predatory Marketing Law

A lawsuit was filed last night in a Maine U.S. District Court against the so-called Maine Predatory Marketing Law, seeking a permanent injunction.

The law, which would take effect Sept. 12, prevents marketers from collecting or sharing health or other personally identifiable information from minors, defined as 18 and under. According to Dan Jaffe, executive VP of government relations, for the Association of National Advertisers, which supports the suit, says the law has "very damaging effects on advertisers and media."

The petitions, the Maine Independent Colleges Association, Maine Press Association. MetChoice, and Reed Elsevier (parent company of B&C), filed the suit, claiming the law was overbroad and a violation of the First Amendment and a preemption of the Children's Online Privacy Protection Act which, Jaffe points out, sets the bar for data-collection restrictions at 13, not 18.

They argue the law impermissibly restricts commercial speech and restricts Internet commerce outside the state whether or not it occurs "wholly outside of Maine."

According to the petition, the bill "makes it unlawful to "knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor's parent or legal guardian."

They argue that the term "personal information" is defined so broadly that it will prevent them from even collecting the names of minors for marketing purposes.

Colleges are concerned that it will prevent them from collecting information from prospective students and hinder their ability to market to them.

The Maine Press Association says it could keep them from publishing information in the routing coverage of sports, student honor roles or "other activities involving minors." In addition, MPA said, "The MPA believes that its members have the right to ask minors for their names and addresses for legitimate purposes, such as confirming a subscription or a letter to the editor."

"The legislation is well-meaning," said Jaffe, but "extraordinarily sweeping. We are very hopeful that the courts will strike it down on a series of grounds." He says if it is not, it will impose "multimillions of dollars in costs to marketers around the country."

"Sadly, online marketers such as Time Warner's AOL only see digital dollar signs when it comes to targeting teens," said Jeffrey Chester, executive director of the Center for Digital Democracy. Chester has been a leading voice for online privacy and a greater government role in overseeing online marketing to kids. "The intent of Maine's new law is to protect the privacy of adolescents involving unfair marketing practices."

But Chester concedes the law may need tweaking "While the law likely needs to be revised to accommodate concerns about its impact on educational and other non-profit uses, for example, its basic premise is valid. Online marketers are terrified of seeing the privacy of their valuable teen target protected by legislation--including allowing parents and others to sue through the law's private right of action provision. They are using the First Amendment as a shield because they are terrified of permitting consumers--including teens--to actually control how their data is collected online. Shame on them."

Also weighing in against the Maine law were Progress & Freedom Foundation Fellows Adam Thierer and Berin Szoka, who called it "an indirect but sweeping age verification mandate that violates the First Amendment rights of adults as well as of minors and online operators."

PFF supporters include top cable companies Comcast, Cox, and Time Warner, as well as major studios, broadcast network owners and telcos.