Yesterday, a suit was filed in Maine federal court by the Maine Independent Colleges Association, Maine Press Association, Netchoice and Reed Elsevier challenging a new law that severely restricts the collection, transfer and use of "personal information" or "health-related information" from minors, presumably anyone under age 18. ANA is not a party to the suit, but we and many other business and industry groups strongly support it.
This law is extremely broad. It includes personal information including an individual’s name, physical address, or anything else that can be used to individually identify a person. It also includes health information, regardless of whether that information is personally identifiable. It prohibits the sale or transfer of any personal or health information, even if culled from public records or obtained from someone other than the minor, and prohibits the use of this information for commercial purposes, which it deems “predatory marketing.” Finally, it contains a “bounty hunter” provision and creates an individual private right of action.
The lawsuit argues that the law violates the First Amendment because it imposes a content-based restriction on speech that is not narrowly tailored to serve a compelling state interest. The U.S. Supreme Court has long held that laws that restrict speech based on content must meet this so-called “strict scrutiny” test. This law imposes a blanket prohibition on the use of health related information collected from minors for marketing purposes, even with parental consent. It also hinders the ability of adults to access or receive anonymous content, since companies will have to censor content that could be considered directed at minors or face liability.
It also argues that this law is an impermissible restriction on interstate commerce that exceeds any local benefits. The U.S. Constitution expressly grants the power to regulate interstate commerce to Congress, and states cannot discriminate against commerce from other states or unduly burden interstate commerce. This law will force out-of-state marketers to comply with Maine’s law to protect themselves from class action lawsuits. It also expressly conflicts with laws in other states, rendering compliance with a patchwork of conflicting laws impossible. Additionally, the law conflicts with the federal Children’s Online Privacy Protection Act (COPPA), which is limited to children under 13 and permits the use of a child’s personally identifiable information for marketing purposes with parental consent.
Since the law will take effect on September 12, the suit seeks a preliminary injunction against enforcement. We hope that the courts look favorably on the plaintiff’s motion, as this law could have millions of dollars worth of adverse impacts for any company that does business in Maine.
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