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Judiciary Committee Urges Repeal of Maine Children's Privacy Law

The Joint Standing Committee on the Judiciary in the Maine Legislature will be recommending to the leadership of both houses that the legislature repeal the "Act to Prevent Predatory Marketing Practices Against Minors."  That law, passed earlier this year, severely restricts the collection, transfer and use of "personal information" or "health-related information" from minors.

The Joint Standing Committee met on October 15th and 16th to consider the constitutional issues raised by the law.  A posting on the committee's website states: "It is very critical to report that the Judiciary Committee believes that this issue raises a number of important and complex questions in a new and emerging area of privacy law that need to be addressed within the framework of various federal and state constitutional provisions, but there is no adequate way to amend the existing text to resolve those questions.  The Committee believes that the best option would be to recommend that the existing statute be repealed, but that new legislation should move forward to address these concerns with some guiding parameters.  The Committee's report will list those parameters."

All of the details about the Judiciary Committee review are available at http://www.maine.gov/legis/opla/judcommreview.htm

ANA and many other industry groups and companies had urged the Maine Legislature to repeal the act.  Our letter to the Joint Standing Committee argues that the legislation violates the First Amendment and the dormant commerce clause and is preempted by the Children's Online Privacy Protection Act (COPPA).

The Maine Attorney General has publicly committed not to enforce the law, which took effect on September 12th.  ANA provided financial support for a lawsuit in federal court which challenged the law on First Amendment and dormant commerce clause grounds.  Although the federal court stopped short of granting a preliminary injunction, it sent a clear message that any private cause of action under the new law could suffer from "constitutional infirmities."

We are very pleased that the Judiciary Committee has voted to recommend the repeal of this law.  This will hopefully give the business community an opportunity to work with the Attorney General, the bill's sponsor and others in the Maine Legislature to resolve the serious defects with the legislation.  We will provide you with more information about possible legislative options as they are developed.

If you have any questions about the Maine law, please contact Dan Jaffe (djaffe@ana.net) or Keith Scarborough (kscarborough@ana.net) in ANA's Washington, DC office at (202) 296-1883.

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