Maine Internet Law Declared Unconstitutional

A federal court ruled Sept. 8 that a controversial Maine marketing law set to effect Sept. 12 is likely unconstitutional, confirming Maine Attorney General Janet Mills' opinion that the legislation is overly broad in the way it regulates commercial speech and violates the First Amendment.

As approved by Maine lawmakers, the Predatory Marketing law would require "verifiable parental consent" before any company collects or receives personal information of anyone under 18 years old. The new law would impact all Websites where teenagers provide their names and other personal information.

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It also prohibits using that information for marketing products to minors. In addition, the legislation imposes strict liability that would prevent common marketing practices used to serve teens information, including marketing materials from colleges and test prep services. The law recently topped NetChoice's list of 10 Worst Internet Laws.

NetChoice joined Reed Elsevier, the Maine Independent Colleges Association and Maine Press Association in calling for an injunction on the grounds that this law represents a threat to both First Amendment rights and interstate commerce. Justice John A. Woodcock stopped short of issuing an injunction but noted, "The Attorney General has acknowledged her concerns over the substantial overbreadth of the statute and the implications ... and accordingly has committed not to enforce it."

"Today's order sheds light on how the law harms the rights of teenagers, parents and businesses to share information through legitimate and lawful commercial activities," Steve DelBianco, executive director of NetChoice, said in a statement. "We look forward to working with the Maine legislature to develop policy that will both protect the privacy of children while also respecting the Constitution. In the meantime, the judge rightfully put private litigants ‘on notice’ that the law has serious constitutional defects and any litigation based on the law will likely not be successful."

The bill originated with the idea of protecting minors from marketers seeking to collect health data from children but the legislative process was expanded all to all personal data on minors.