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CONTACT: Amy Smorodin
August 27, 2009
(202) 289-8928
Maine COPPA Expansion Law is Unconstitutional
PFF Fellows Says State Statute Creates Slippery Slope to Online Age Verification

WASHINGTON D.C. - A lawsuit filed yesterday seeks to block enforcement of a new Maine marketing law that would expand upon the federal Children's Online Privacy Protection Act of 1998.  Like COPPA, the Maine statute requires "verifiable parental consent" before certain online sites or services may collect, or enable the sharing of, personal information from children under 13. But the Maine law would expand this requirement to adolescents, to offline activity, and for the collection of any "health related" information, while also banning all marketing based on such information.

PFF Senior Fellows Berin Szoka and Adam Thierer recently released a major legal analysis of such COPPA-expansion proposals, "COPPA 2.0: The New Battle Over Privacy, Age Verification, Online Safety & Free Speech."  They had these comments regarding the Maine lawsuit:

The courts will likely strike down the Maine statute as an indirect but sweeping age verification mandate that violates the First Amendment rights of adults as well as of minors and online operators.  Maine's COPPA expansion would essentially result in the convergence of COPPA with COPA, the Children's Online Protection Act of 1998, which was recently ruled unconstitutional after a decade-long legal saga.  The Maine law is similarly overbroad in its expanded coverage of adolescents, websites, and information.

The Act's absolute ban on personalized marketing to kids and its strict liability standard would create a litigation nightmare.  Worse, the law creates a private right of action with hefty statutory damages plus attorneys fees—a trial lawyer's dream, a recipe for large class action suits, and a disaster for online innovation.

Such state-level regulations would conflict with the Commerce Clause because of the uniquely interstate nature of the Internet. Maine has no right to curtail the speech rights or business practices of citizens or companies outside Maine.  A patchwork of 50 different state child marketing laws would be a regulatory quagmire.

Maine lawmakers should have recognized these constitutional limitations by embracing "less restrictive" alternatives like promoting technological solutions that empower parents or funding media literacy campaigns for both parents and kids.

Szoka and Thierer are available for further comment.  Please contact Amy Smorodin at Szoka and Thierer also recently released a major white paper about federal and state approaches to addressing cyberbullying. PFF also produces a regularly updated special report, "Parental Controls and Online Protection: A Survey of Tools and Methods," now in its fourth edition.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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