Marketers Make Good on Threat to Challenge Maine Privacy Law

The Progress and Freedom Foundation is reporting that a group of marketers and publishers filed a lawsuit yesterday challenging the constitutionality of Maine's Act to Prevent Predatory Marketing Practices Against Minors, a law that prohibits companies from collecting "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." That's a tall order for marketers, requiring fundamental changes in their operations.

The listed plaintiffs are the Maine Independent Colleges Association, Maine Press Association, NetChoice, and Reed Elsevier Inc.

The law becomes effective Sept. 12.

The lawsuit was reportedly filed in the U.S. District Court for the District of Maine, though it is not yet available on the court's PACER/ECF site. A copy of the plaintiffs' motion for a preliminary injunction distributed by PFF is available here.

Plaintiff's allege that the Maine law violates the First Amendment (they allege it should be tested under the rigorous standards applicable to non-commercial speech), the dormant Commerce Clause, and state preemption provisions in the Children's Online Privacy Protection Act, a federal measure applicable to children under age 13.

Comments

[Jeff Chester]

Sadly, online marketers such as Time Warner's AOL only see digital dollar signs when it comes to targeting teens.
The intent of Maine's new law is to protect the privacy of adolescents involving unfair marketing practices. 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!

When we developed the COPPA initiative in the mid-1990's [which led to its passage in 1998], we had wanted adolescents covered by safeguards. AOL was in the forefront back then thwarting the effort to protect teens. Consequently COPPA only covers children under 13. However, a growing number of child advocacy and health groups have called on the FTC and Congress to prohibit the behavioral targeting of both children and teens.

Marketers such as Time Warner, Barry Diller's IAC, and News Corp/MySpace are members of the group filing this suit. It's not surprising they are opposed to protecting the privacy of teens online, given how much money they rake in from that market. My CDD has already offered Maine State Sen. Schneider and the state Attorney-General access to legal and market research resources to help fight off this attack by greedy digital advertisers. In fact, we have proposed to hold a state town meeting on online marketing and teens. Exhibit A at this event will be the teen target marketing conducted by Time Warner, News Corp. and IAC. But we are willing to sit down with these companies, Maine state officials, and our attorney's to discuss making responsible revisions that will ensure there is a balance between protecting teen privacy and digital commerce.