BANGOR, Maine — A new law scheduled to go into effect Saturday to restrict the collection of minors’ personal health data won’t be enforced until the Legislature can fix it, according to a decision Tuesday in U.S. District Court.
Attorneys on both sides of the issue agreed that the law passed by the Legislature last session could be in violation of the U.S. Constitution because it restricts free speech guaranteed under the first amendment.
At issue is the extent to which private entities should be allowed to solicit personal information from minors. The law, which was sponsored by Sen. Elizabeth Schneider, D-Orono, requires the entity seeking the information to first gain parental consent.
According to the plaintiffs in the case, which include the Maine Independent Colleges Association, the Maine Press Association, NetChoice and Reed Elsevier Inc., the law as worded goes far beyond restricting the collection of sensitive health data and could affect information as mundane as a name and address.
Maine Attorney General Janet Mills has stated publicly and in court filings that her office would not enforce the law, “An Act To Prevent Predatory Marketing Practices Against Minors Regarding Data Concerning Health Care Issues,” until the Legislature can rework it.
Tuesday’s decision by Justice John A. Woodcock put Mills’ statements in a court order and stipulated that potential lawsuits would likely go nowhere. As a result of the agreement, the suit heard Tuesday to nullify the law was dismissed without prejudice.
“The Attorney General has acknowledged her concerns over the substantial overbreadth of the statute and the implications … and accordingly has committed not to enforce it,” states the order signed by Woodcock, which goes on to say any private suits brought under the law “could suffer from the same constitutional infirmities.”
Woodcock stopped short of issuing an injunction that would bar the law from taking effect or explicitly ordering Mills not to enforce it.
“I don’t think I’m in much of a position to issue an injunction against parties who aren’t here,” said Woodcock. “I’m not a judge who likes to flex federal muscle on the state if it can be avoided.”
Schneider said she wrote the bill after learning about what she called “disturbing” practices being used by some companies to gain health data from minors.
“I think people would be appalled if they knew what was going on out there,” Schneider said Tuesday during an interview. “It’s paramount to having a child open the front door to a stranger and letting them go through the family’s filing cabinet.”
Schneider said she still wants minors’ health data protected as much as possible, but conceded that the text OK’d by the Legislature was too broad.
“A lot of legal people looked at this,” she said. “I thought it was fine.”
Attorneys representing Mills and the plaintiffs said after the hearing that they were pleased with the outcome. Schneider agreed and hoped that more representatives from the affected industries will participate in the process of revamping the law. The Legislature’s Judiciary Committee is scheduled to convene this fall to begin exploring the issue, according to Schneider.