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That Whole "Maine" Thing

Bill Nussey, Silverpop
by: Bill Nussey (@bnussey)
01 September 2009

If you’ve heard rumblings emanating from Maine and been caught by surprise, you're not alone. Nobody noticed when a new privacy law intended to protect teens from predatory marketers sailed through that state's legislature amidst a flurry of bills earlier this year. But now various groups and trade associations say the privacy law goes too far, and are working frantically to stop the measure before it goes into effect on September 12.

In a nutshell, the law, titled "An Act to Prevent Predatory Marketing Practices against Minors," states that teenagers can't give their personal or health information to marketers if they're under 18 without their parents' consent. It also bars marketers from selling or transferring the information if it individually identifies the minors, or will be used to market to them.

At first, it sounds like a great idea. We should definitely be protecting our children online. But this has created a huge uproar for a lot of reasons. First, the federal government has already enacted a law called the Children's Online Privacy Protection Act (COPPA), which addresses many of these concerns. But it only applies to children under age 13. The Maine legislation seeks to impose restrictions on the collection of personal information from teens up to age 18.

The new law also requires marketers to obtain verifiable parental consent before they can gather information from minors. But how do you stop a determined teen from faking parental approval? Nevertheless, marketers can be held liable for damages in the courts by both the state and by private individuals.

The law is being challenged in court by several groups on First Amendment, interstate commerce and other grounds. The measure is unconstitutional, the plaintiffs say, because it violates teens' rights to free speech and prevents them from registering and receiving information about beneficial health care products and services. A coalition of Internet companies including AOL and Yahoo are also challenging the measure. They contend that the restrictions are so onerous that teens may not even be allowed to register at their Web sites.

So, very interesting stuff. From my reading, it appears the law has implications and consequences far beyond its original intention of protecting teens. Even the Maine attorney general said last Friday that the law is so poorly designed that her office will not enforce it.

I think the bottom line is, as we move forward trying to protect ourselves and our children from the Wild, Wild West of the Internet, it's going to be a whole lot harder than any of us want to believe.

You can read more about this issue in this Portland Press Herald article, and at MediaPost here, and here.

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