Maine AG agrees to work on predatory marketing law

John O'Brien Sep. 10, 2009, 4:31pm


AUGUSTA, Maine (Legal Newsline) - Maine Attorney General Janet Mills has agreed with the groups challenging the state's Predatory Marketing Law as overbroad and a violation of First Amendment rights.

NetChoice, the Maine Independent Colleges Association, Reed Elsevier, Inc., and the Maine Press Association filed their challenge in August, and U.S. District Judge John Woodcock Jr. filed a stipulated order of dismissal Wednesday.

"The Attorney General has acknowledged her concerns over the substantial overbreadth of the statute and the implications of Chapter 230 on the exercise of First Amendment rights and accordingly has committed not to enforce it," the order says.

"She has also represented that the Legislature will be reconsidering the statute when it reconvenes."

The law's intention was to protect minors' sensitive medical information from marketers.

"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," said Steve DelBianco, executive director of NetChoice.

"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 plaintiffs claimed the law opened them up to class action lawsuits. The complaint said many businesses considered suspending operations in Maine because it is impossible to know if any information collected or used pertains to a minor in the state.

Standardized testing companies could not transfer information about minors to colleges, it added.

Reed Elsevier is a information provider that operates LexisNexis, which manages an archive of legal documents and news reports.

"Neither Reed Elsevier nor LexisNexis are companies that use health-related information to market to minors. However, the provisions of Chapter 230 are broad and overreaching, and these provisions would adversely impact on products furnished by LexisNexis for important societal benefits," the complaint said.

"The primary issue that concerns Reed Elsevier is the unconstitutional restriction that makes it illegal to sell, offer for sale or otherwise transfer to another person, personal information about a minor if that information individually identifies the minor.

"This unlawful provision applies regardless of how an entity acquired the data and regardless of the non-marketing lawful use for which the data are used."

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