LS Client Memo

Enforcement of Controversial New = Maine Privacy Law Postponed

Private Cause of Action Still Available<= /o:p>

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Following weeks of negative commentary and the filin= g of a lawsuit, Maine’s Attorney General announced that the state would not enforce the recently enacted Act to Prevent Predatory Marketing Pract= ices against Minors (the “Act”). A private cause of action under the statu= te is still available, at least for the time being.

The Act, which technically becomes effective on Sept= ember 12, 2009, prohibits the knowing collection or receipt of personal and health-related information from minors for marketing or advertising purpo= ses without verifiable parental consent.&nbs= p; The Act also prohibits selling, offering for sale, or transferring= such information to another person.

The Act sparked controversy because of its broad sco= pe, potentially affecting any U.S. business, whether inside or outside the Maine, that collects age-identifying information from Maine residents. The Act also is more restrictive= in several respects than the federal Children’s Online Privacy Protect= ion Act of 1998 (“COPPA”). For example, COPPA restricts the online collection of personal information from children under the age of 13 by website operators and on= line service providers. The Act,= by contrast, covers a larger population group than COPPA by restricting the collection of personal and health-related information from children under= the age of 18 (the age of majority in Maine) and also applies to the use of p= ersonal and health-related information collected both online and offline by any person.

Multiple ambiguities make the Act difficult to under= stand and satisfy. The Act defines “personal information” broadly to potentially include email addresses, text messaging numbers, or other information that on its own c= ould be deemed non-personal. Although the Act imposes a requirement that businesses obtain “verifiable parental consent” prior to the collection of personal and health-related information from minors, it fai= ls to specify the form of notice that a parent is required to receive. Similarly, the Act’s preda= tory marketing provision also appears to prohibit any use of a minor’s personal information for marketing purposes, regardless of whether verifiable parental consent has been secure= d.

According to published reports, the Maine legislatur= e will revisit and likely revise the Act during its next legislative session. As noted above, although Maine w= ill not enforce the Act’s provisions for the time being, private causes of action are still possible.

As a consequence, all businesses conducting business= with Maine residents should consider taking steps to reduce potential liabilit= y under the Act by: 1) reviewing online and offline databases to determine whethe= r Maine residents under the age of 18 are registered and, if so, delete those registrations; 2) adjusting online age screening and blocking mechanisms = and forms initially employed to comply with COPPA to address the Act’s = broader age restrictions; and/or 3) installing geographic filtering techniques to block out registrations from Maine residents.

We will keep you informed of further developments wi= th this legislation. Should yo= u have any questions in the meantime, please contact S. Jenell Trigg at 202-416-= 1090 (email: strigg@lermansenter.co= m) or Louis J. Levy at 202-416-6748 (email: llevy@lermansenter.com).

September 0= 9, 2009

This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advic= e.

We would be pleased to provide additional deta= ils or advice about specific situations if desired.

2000 K Stre= et NW, Suite 600 | Washington, DC 20006-1809
tel. 202.429.8970 | fax 202.293.7783 | www.lermansenter.com

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