Maine Attorney General Will Not Enforce New Privacy Law for Minors

This posting was written by John W. Arden.

Maine Attorney General Janet Mills has announced that—because of constitutionality concerns—she will not enforce a recently-enacted state privacy law that prohibits the collection of personal information for marketing purposes from minors without parental consent and bars “predatory marketing” to minors.

According to a story posted yesterday on Digits, the Wall Street Journal technology blog, the attorney general indicated that, pending review of the law by the Senate Judiciary Committee in January, she will not prosecute parties that fail to comply with the law.

Constitutional Issues

“Attorney General Mills shares many people’s concerns about the constitutional issues presented by the statute and the rights of minors to access information, and therefore she will not be enforcing the law,” said Kate Simmons, spokesperson for Attorney General Mills.

Those voicing concerns about the constitutionality of the law include a group of companies and organizations (including AOL, eBay, Reed Elsevier, and Yahoo) that filed an August 26 lawsuit, claiming that the statute violates the First Amendment rights of adults, as well as minors and online operators.

Private Right of Action

The attorney general’s refusal to prosecute will not preclude enforcement of the law by private parties, who have a private right of action under the privacy law and under the Maine Unfair Trade Practices Act.

Violations of the privacy statute constitute unfair trade practices under the Maine Unfair Trade Practices Act, which subjects violators to civil penalties of up to $20,000 per violation.

In addition, a person about whom information is unlawfully collected or who is the object of predatory marketing in violation of this statute may bring an action under the privacy law for injunctive relief and actual damages or up to $250 in statutory damages for each violation, whichever is greater. The statute provides for an award of attorneys fees and costs upon the finding of a violation.

The Maine statute (“An Act to Prevent Predatory Marketing Practices Against Minors,” Public Law 230) was signed by the Governor on June 2, 2009, and is scheduled to take effect on September 12, 2009. Text of the law appears here on the Maine State Legislature’s website.

The article—by report Marisa Taylor—appears here on the Wall Street Journal’s Digits blog. Further details about the law appear in an August 12, 2009 posting on Trade Regulation Talk.