Four groups are mounting a challenge in federal court to a new Maine law that would make it illegal to collect or receive health and personal information from minors for marketing purposes.
The groups – an association of Maine colleges, the Maine Press Association, a coalition of online trade associations and the owner of the Lexis/Nexis data-gathering company – sued in U.S. District Court in Bangor late Wednesday. The groups are seeking an injunction to keep the law from taking effect as scheduled Sept. 12.
"The law is tremendously overbroad and prohibits conduct people do every day," said James T. Kilbreth, a lawyer for the Maine Independent Colleges Association, the MPA, Reed Elsevier Inc. and NetChoice.
The law was originally aimed at extending a federal law that bars companies from obtaining personal information online from any child younger than 13 without parental consent. The Maine law was initially focused on protecting the health information of those younger than 18, to keep drug manufacturers from marketing drugs to minors.
But along the way, Maine lawmakers added "personal information" to health information, and that might, the lawsuit argues, keep colleges from communicating with potential students, prevent the media from identifying people younger than 18 in news stories and essentially eliminate any marketing to minors, even if the child requests information.
"The original intent, whatever it may have been, has been totally swallowed up by the way this bill actually ended up," said Kilbreth, whose lawsuit challenges the law on First Amendment, interstate commerce and other grounds.
State Sen. Elizabeth Schneider, D-Orono, who sponsored the measure, said the bill was intended to target predatory marketers.
"There's perfectly acceptable marketing, and I'm not attacking all marketers," she said. "My issue is using techniques for marketing to children that lures them in with the promise of coupons or toys or electronic equipment."
Schneider said no one raised any objections as the bill worked its way through the legislative process.
"I think the people representing the various industries dropped the ball," she said, because no one showed up at a public hearing on the bill. Assuming there were no objections, Schneider said, lawmakers approved the bill, and Gov. John Baldacci signed it in early June.
"As a result of nobody showing up, there are kinks in it," she said.
Schneider said she's open to discussing the issues with those who now object to the bill, but she doesn't want to scrap the whole measure.
"We can talk about unintended consequences with this bill, but we should also talk about unintended consequences with our kids and the information that's being given out," she said.
Jeff Chester, executive director of the Center for Digital Democracy in Washington, D.C., agreed.
"While the law likely needs to be revised to accommodate concerns about its impact on educational and other nonprofit uses ... its basic premise is valid," Chester said in an e-mail.
"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," meaning the bill allows private lawsuits, he said.
Chester said the federal law covers only preteens, but there's growing pressure on Congress to expand its protections against collecting information online up to age 18.
He noted that companies such as Time Warner and News Corp., which owns the online social site MySpace, are members of NetChoice.
"It's not surprising they are opposed to protecting the privacy of teens online, given how much money they rake in from that market," Chester said.
Daniel W. Walker, a lawyer for the college association and the Maine Press Association, said the bill didn't attract...
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