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While intending to protect minors, the new law raises First Amendment concerns, a judge rules.

By JUSTIN ELLIS, Staff Writer September 9, 2009

 

A new Maine law banning the collection of personal information from minors online will go back to the state Legislature because of a court challenge.

The law, scheduled to take effect Saturday, is likely to be amended when the Legislature reconvenes in January.

Online trade associations, a coalition of Maine colleges and the Maine Press Association sued the state in U.S. District Court in Bangor to stop the law from taking effect. They argued that it was too broad and had implications for young people's First Amendment rights.

On Tuesday, the state and those groups agreed to dismiss the case. In writing the court order, Judge John Woodcock said Attorney General Janet Mills "acknowledged her concerns over the substantial overbreadth of the statute and the implications of (the law) on the exercise of First Amendment rights, and accordingly has committed not to enforce it."

James Kilbreth, a lawyer for Verrill Dana LLP who represented plaintiffs in the lawsuit, said the judge's order makes it clear that there were serious problems with the law.

Kate Simmons, a spokeswoman for the Maine Attorney General's Office, said state officials believe any issues with the statute can be worked out in the Legislature.

As written, the law would extend the federal Children's Online Privacy Protection Act, which prohibits companies from collecting personal information online from any child younger than 13 without parental permission.

The Maine law increased the age to 18 and was aimed specifically at health information, until other personal information was added to its provisions, said state Sen. Elizabeth Schneider, D-Orono, who sponsored the original bill.

Schneider said she believed that modeling the bill after the federal law was effective because she didn't hear from online companies or trade groups during the legislative session. She said she has talked with many of those groups since then and is ready to work with them on fixing the bill.

She said she won't alter the law if it affects the original intent, which is to prevent minors from giving up sensitive information online.

"I'm not saying let's change the bill," she said. "I want to hear what stakeholders have to say that they didn't say when the bill was in the original process."

Steve DelBianco, president of NetChoice, an online advocacy group and a plaintiff in the lawsuit, said the plaintiffs plan to work with Schneider and other legislators "to find ways to protect Maine teenagers while protecting their constitutional rights."

NetChoice represents online companies including eBay, Overstock.com, Expedia.com and NewsCorp, the owner of MySpace.com.

Among its concerns, Net- Choice argued that verifying age and parental consent isn't easy for online companies. DelBianco said the current law could encompass things as simple as banner ads on Web sites.

Jeff Chester, executive director of the Center for Digital Democracy in Washington, D.C., said the original intent of the bill remains admirable.

"The law was written too broadly," he said. "The basic premise of providing safeguards around commercial collection of online information from adolescents is something that is appropriate."

Chester said the law should maintain protections against commercial Web sites but make exceptions for educational or nonprofit uses.

As Americans increasingly live online, through shopping, communicating with friends or being active on social networks, they leave a trail of personal information that companies can use, Chester said.

He said Congress will eventually have to intervene in online data collection, but at the moment the issue will be fought on a state level.

"Maine has become the front line in a growing national battle in protecting consumers against harmful online data collection practices," he said.

Staff Writer Justin Ellis can be contacted at 791-6380 or at: jellis@pressherald.com