Note: HFA spotlighted this effort last year. This bill was initially passed and signed into law 2009. Maine’s Attorney General determined the law was unconstitutional as written leading to this reform effort.
Tuesday December 8th, 2009 by A.J. Higgins-Maine Public Broadcasting Network
It’s back to the drawing board for proponents of legislation that would prevent the online collection of minors’ health-related information. State Sen. Elizabeth Schneider says her new bill should be ready by the end of the month and will replace a law that was challenged earlier this year in U.S. District Court. Schneider says she wants greater protections for Maine teenagers who may not always understand how much of their privacy they can lose by filling out an online survey.
By the end of the month, Democratic Sen. Elizabeth Schneider of Orono expects to have a new bill that will attempt to prevent teenagers from falling victim to the online mining of healthcare information by Internet marketers. Many teenagers participate in online surveys without their parents consent and Schneider says few have any idea of what happens to the information they provide.
“What concerns me about this is that when you dig into this and you find what they’re doing is that they’re actually promoting certain kinds of medications and things that are completely inappropriate for children,” Schneider says.
Schneider tried to extend the federal children’s online privacy protections currently available to children 13 and younger, to all kids up through age 18 under a state law enacted earlier this year. The law was challenged by several Maine colleges and other parties who claimed the measure was simply too broadly worded and restricted the teenagers’ free speech rights under the First Amendment.
After Maine Attorney General Janet Mills announced she would not enforce the law because of the constitutional implications, Schneider agreed to craft a new piece of legislation that repeals much of the original bill and replaces it with a more narrowly focused goal to address medical information.
“It’s as if somebody walked up to your front door, knocked on the door and your kids opened the door and said, ‘Come on in and look around. Look in my filing cabinet. Here, let me show what is in the filing cabinet.’ We don’t realize what the repercussions to this sort of open-door policy is for our kids to reveal this,” Schneider says. “I don’t think kids necessarily have that same screening process that adults do when it comes to handing out information.”
Because of widespread concerns over what could be considered to be personal information under Schneider’s earlier bill, she says her revision will be limited to marketing pharmaceutical inquiries and other health-related issues. When the bill is scheduled for a public hearing, Schneider says she expects to encounter some opposition from corporate interests.
“They represent customers and things like that that are trying to do their best to sell products and that’s their goal — their bottom line is it,” she says. “So if they can market in a way that sells more products, that’s what their goal is and they’re going to do everything to protect that that they can. On the other side of this issue, you have people who are concerned about children’s health, and you have issues about concerns for children in general and privacy issues.”
“If the Legislature intends to address the procurement only of, quote unquote, health care information, how does it wish to define that term without running afoul of the First Amendment?” Maine Attorney General Janet Mills asked lawmakers. Mills told members of the Legislature’s Judiciary Committee that lawmakers would have to tread carefully on free speech issues for young people when they take up Schneider’s new bill.
During an October briefing, Mills said there are reasons why the federal law that Schneider tried to model treats children 14 and older differently when it comes to marketing.
“I’m concerned about the First Amendment rights of minors between the ages of 14 and 17 — I do think there is a difference,” Mills said. “I think probably the drafters of COPPA and the Congress made the distinction between 13, under 13, and 13 and over for a reason, because we make that distinction in other areas of the law. There is a distinction at age 13 that is non-arbitrary and based on a relative maturity level.”
A public hearing on a new online protection bill for Maine teenagers could be scheduled as soon as next month when the Maine Legislature reconvenes.
CORRECTION: Last week, copy from the Progressive States Network (PSN) was used in creating the Friday Update. However, PSN was not cited. We apologize for this lapse. For more coverage of healthcare from PSN please follow this link to their Healthcare section. http://www.progressivestates.org/about/18/about