E.K.D. et al v. Facebook, Inc.
EXHIBIT by Facebook, Inc.. Exhibit to 12 Motion to Dismiss for Failure to State a Claim Declaration of Matthew D. Brown. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Brown, Matthew)
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Maine Kids' Privacy Law Conflicts with COPPA
Sheila A. Millar
Keller and Heckman LLP - Washington Office
August 20, 2009
Previously published on August 5, 2009
A recently-enacted privacy law in Maine purports to impose restrictions on the collection of personal
information from all minors for "marketing purposes" in a manner that is inconsistent with the Children's
Online Privacy Protection Act (COPPA). Complying with the Maine law will be burdensome; it will require
excluding both kids and teens in Maine from offline promotions, and will also require complicated new
age-screening for online promotions, newsletter signups, and other online data collection activities. The
law will also limit social networking options for teens in Maine. The law should be viewed to be
preempted by COPPA.
Maine Children's Privacy Requirements
The Maine legislature enacted LD 1183, An Act to Prevent Predatory Marketing Practices against Minors,
to protect the privacy of all minors. It prohibits (1) the collection or use of health-related information
and "personal information" for marketing purposes from individuals under the age of 18 without
verifiable parental consent, and (2) the sale or transfer to a third party of health-related information or
personal information about a minor if that information was unlawfully collected, individually identifies the
minor, or will be used for "predatory marketing." The new law, scheduled to take effect on September
15, 2009, not only will restrict promotional and marketing activities involving collection of personal
information from teens, but will also effectively bar social networking.
Each violation of the Act constitutes an unfair trade practice, and is also subject to a fine of $10,000 to
$20,000 for a first violation and at least $20,000 for a second or subsequent violation. The Act also
provides for a private right of action by victims in the form of an injunction or the greater of $250 or
actual damages per violation (and the award may be increased for willful or knowing violations). The Act
further provides that the Attorney General may bring a civil action upon finding a violation of COPPA.
The Maine law is significant in that it goes beyond COPPA through its application to:
all individuals under age 18, not only those under 13,
all communications- whether online or offline – to such minors, and
"personal information," which is broadly defined, although the impetus for the legislation seemed
to be protecting health-related information of minors.
Section 1303(d) of COPPA, 15 U.S.C. § 6502(d), specifies:
(d) INCONSISTENT STATE LAW.—No State or local government may impose any liability for commercial
activities or actions by operators in interstate or foreign commerce in connection with an activity or
action described in this title that is inconsistent with the treatment of those activities or actions under
We believe that portions of the Maine law that are inconsistent with COPPA are preempted by the plain
language of the legislation. Specifically, in enacting COPPA, Congress evaluated the privacy risks to
minors from the collection and use of personal information. Congress debated the age of "children" to be
protected under the law during the legislative discussions, and concluded that the category of minors
requiring legal protection in the form of verifiable parental consent included children under age 13. In
reaching this decision, Congress recognized that teens do have personal privacy rights, that they
understand commercial intent, and that it would be impractical and undesirable to treat teens and
children identically. Moreover, Congress adopted certain exemptions from the verifiable parental consent
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requirement even where children under 13 were concerned. Congress chose to regulate only the online
collection of information from children under 13. Congress also concluded that a uniform national
standard was necessary and desirable.
The Maine law would make illegal, or impose liability for, a commercial activity or action, namely, the
collection of personal information from teens, including for marketing purposes, that is legal under
federal law. The Maine law includes no exemptions or exceptions to the verifiable parental consent
obligation. This is inconsistent with the treatment of those activities or actions under COPPA. Hence, a
strong argument exists that the Maine law is preempted because it is inconsistent with the federal law.
Companies interested in marketing to teens should consider the legal options carefully before deciding to
make major changes in how they structure national promotions in response to this new state law.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell.
This document is intended for informational purposes only and is not legal advice or a substitute for
consultation with a licensed legal professional in a particular case or circumstance.
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