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Free Expression

Better Bill from a Bitter Pill

Yesterday, in a follow-up to last October’s problematic marketing to minors law, the Maine state legislature considered a new proposal that attempted to narrow the prohibition of certain kinds of marketing information aimed at minors.   CDT prepared a vigorous challenge to the proposed law, LD 1677, submitting testimony Wednesday and sending our General Counsel, John Morris, up to Augusta on Thursday to testify about the constitutional concerns raised by the bill.

We were pleasantly surprised when the bill’s co-sponsor, Sen. Elizabeth Schneider, distributed an amended version of the new legislation a few hours before the hearing.  The amended version of LD 1677 addresses the majority of concerns CDT had with the first draft of the bill.  Those concerns are highlighted in our testimony:

LD 1677 originally prohibited the online collection and use of minors’ personal information (which includes email addresses) in order to advertise or otherwise promote the sale of pharmaceuticals.  This greatly restricted minors’ ability to request to receive information about sensitive health topics without getting a parent’s consent. 

The amended version includes an exception that permits online entities to collect minors’ email addresses in order to respond to requests for information initiated by minors themselves.

The original bill directed the Attorney General of Maine to publish rules consistent with the federal Children’s Online Privacy Protection Act but applicable to minors age 13-16.  COPPA, which prohibits the collection of personal information of minors younger than 13, was drafted intentionally to include only younger minors. It requires verifiable parental consent in order to collect information from minors 12 and under, which is a challenging and costly process to implement. Applying this requirement to sites that attract teenagers would subject untold numbers of websites to this burdensome regulation. 

The amended version of LD 1677 removes any mention of COPPA, and its verifiable parental consent, from the equation.

Initially, LD 1677 identified the Internet as the only forum in which predatory marketing practices would be regulated.  In addition to producing unintentionally bizarre results (a marketer could not collect information online but could, for instance, set up a table across from a high school and collect teens’ information in person), that draft unfairly, and inaccurately, singled out the Internet as the source of the problem.  The real problem is predatory marketing practices used by some pharmaceutical companies to target a vulnerable population.

The amended bill appropriately focuses on this, and leaves the Internet out of it.

Arguably the most important provision of LD 1677 exists in both bills: Section 1 repeals the earlier Chapter 230 law, which unintentionally prohibited an overwhelming amount of speech, and which continues to sit on the books, chilling speech and restricting Mainers’ access to information to this day.  Whatever the outcome of the current legislative process, Chapter 230 must be repealed as soon as possible.

Because the amended bill presented such an improvement over the previous draft, CDT’s oral testimony focused on a few remaining issues that need to be clarified: whether the bill could be used to target non-profit organizations providing health care information that discuss and recommend certain prescription medications; whether ad-supported sites in general might face prosecution if minors access their site and happen to be served an ad for a prescription medication; and how to ensure that the statute doesn’t become a weapon wielded as a heckler’s veto to silence unpopular speech via a private right of action. 

We appreciate Sen. Schneider’s motives and those of her co-sponsors, and applaud their most recent efforts to draft narrowly tailored legislation aimed at protecting kids from marketing practices that are inarguably predatory.  We look forward to continuing to work with Sen. Schneider and the subcommittee to ensure the passage of a narrowly tailored bill with no unintended, or unconstitutional, consequences.