Commentary

Challenge To Maine Privacy Law Dismissed

A federal judge in Maine said today that he agrees with media organizations and Web companies that the state's new privacy law, which restricts gathering or publishing information about minors under age 18, is likely unconstitutional.

But the judge nonetheless dismissed the challenge to the measure on the ground that the state Attorney General doesn't intend to enforce it. All parties consented to the dismissal.

Additionally, state lawmakers are expected to revise the measure next year.

The law prohibits companies from knowingly collecting personal information or health-related information from minors under 18 without their parents' consent. The measure also bans companies from selling or transferring health information about minors that identifies them, regardless of how the data was collected.

You'd think someone would have pointed out to Maine lawmakers that the bill had constitutional problems, but the measure sailed through the state legislature with no opposition -- apparently because the Maine Press Association and other groups lost track of it.

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After the measure was already passed, the Maine Independent Colleges Association, Maine Press Association, Reed Elsevier and NetChoice -- a coalition of Web companies like AOL, eBay, Yahoo, IAC, News Corp. and Overstock.com -- brought a legal challenge. They argued it would violate free speech principles because it apparently prohibits activities like publishing the names of children under 18 in the newspaper in certain circumstances. The challengers said that the law also could prevent teens from receiving information, or even signing up for social networking services.

The media and Web companies initially argued that even without the risk of enforcement by the Attorney General, the law still should be struck down because it left them vulnerable to private lawsuits. The measure provides that individuals can sue for up to $250 in damages per violation.

There's nothing in today's order that would prevent private individuals from suing, but the judge clearly tried to discourage them from doing so, stating that any private lawsuits "could suffer from the same constitutional infirmities" as cases brought by the state.

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