Flawed Maine student privacy law faces revision after court challenge

Media organizations are closely watching developments in the Maine courts and legislature involving a flawed privacy law that risked legally clouding any use of minors’ names in journalistic publications.

On Sept. 9, Chief District Judge John Woodcock, Jr. dismissed a lawsuit filed against the governor of Maine and the Maine attorney general concerning a Maine privacy law that would have prohibited companies from collecting the health-related or personal information from minors for marketing purposes without first obtaining consent from a parent or legal guardian. Judge Woodcock dismissed the lawsuit after both parties agreed to a dismissal and Attorney General Janet Mills agreed not to enforce the statute.

The law, “An Act To Prevent Predatory Marketing Practices Against Minors,” would have made it “unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes” from a minor without obtaining “verifiable” parental consent.  The law would have also prohibited a person from selling, offering to sale, or transferring health-related information or personal information about a minor if that information individually identifies the minor. The law would have been problematic for publishers and businesses because the statute defined “personal information” as including “an individual’s first name, or first initial, and last name.” Thus, the law arguably made it illegal to sell a newspaper or magazine listing the names of the honor-roll members from the local high school or the roster of the football team – a result legislators clearly never intended.

In his opinion, Judge Woodcock stated that the plaintiffs in the case would have likely succeeded on their claim that the law is overbroad and violates the First Amendment, and noted Attorney General Mills expects the Maine Legislature to reconsider the statute when it reconvenes. Judge Woodcock also made clear that third parties pursuing a private lawsuit under the law could run into the same “constitutional infirmities.”

The lawsuit was filed by the Maine Independent Colleges Association, the Maine Press Association, NetChoice and Reed Elsevier. NetChoice “is a coalition of trade associations, eCommerce businesses, and online consumers who shall of whom share the goal of promoting convenience, choice and commerce on the Net.” Its members include America Online/Time Warner, eBay, NewsCorp and Yahoo!.

The bill was scheduled to take effect Sept. 12, 2009. Technically, the law remains alive on the books unless and until the legislature takes remedial action, so it’s at least possible that an aggrieved individual might – despite Judge Woodcock’s admonition – attempt a claim of “predatory marketing” against a legitimate publisher.