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www.winston.com

August 5, 2009

SPECIAL ALERT

Tips to Deal With Maine’s New Law Regarding Minors’ Personal Information

As we recently reported, the Maine governor signed a new law effective September 12, 2009, relating to the collection and use of personally identifiable information (“PII”) of people under the age of 18. We have received a number of questions already regarding how to deal with this law, and we thought it would be helpful to provide some thoughts on the most frequently asked questions.

1. What Should Be The Eligibility Requirements for Promotions Conducted in the Future?

For both online and offline promotions (e.g., sweepstakes, contest, loyalty programs, newsletter sign-ups) that collect PII, there are four separate options:

• Prohibit persons under 18 from participating (regardless of state of residence);
• Prohibit persons under 18 who live in Maine from participating;
• Void entire promotion to Maine residents; or
• Set up a verifiable parental consent mechanism to obtain consent from parents of Maine residents who are under 18.

Note, promotions that started before September 12, 2009 and will continue thereafter, may have to be adjusted mid-stream to deal with the new law; there is no “grandfather clause” for promotions that have already started.

2. We Don’t Always Collect Date of Birth, Do I Need To In the Future?

If you plan on using your database for marketing purposes, it’s probably a good idea to do so, since the Maine law prohibits marketing to children under 18, whether you knew that the person in your database was under 18 or not. As a result, if you collect information without asking date of birth, and you market to your database, you may be violating the law.

3. What Should I Do About Our Existing Database?

Consider doing the following:

1. Reviewing your current database and extract anyone who is under 18 and resides in Maine.
2. Not sending marketing communications (and remember that the term is broadly defined) to anyone taken out via this process..
3. If you are not able to extract this information out from your database, consider:
   1. Before September 12, 2009, sending out an eblast "update your information" that asks for date of birth and state of residence and use this information to screen out anyone from Maine under 18 (or anyone who does not respond that is from Maine) from your active database; or
   2. Not sending marketing communications to anyone who is in Maine.

4. How Do I Actually Get “Verifiable Prior Parental Consent” From a Minor From Maine

1. The Maine law is silent as to what methods should be used to obtain consent, stating only that companies should take “reasonable efforts” to ensure that you are getting authorization from the minor’s parents. COPPA has a similar requirement, but does provide some specific examples. We've included those below for your consideration, although there is no guarantee these methods will be sufficient to comply with Maine law:
   1. Have a hotline that parents can call to provide consent;
   2. Provide kids with a form that their parents must complete and either fax, email via PDF or send via regular mail; or
   3. Obtain consent from parents during a credit card transaction; or
   4. Get consent from the parent by email, plus "additional steps" to make sure the parent has provided consent (like sending out a message 24 hours later confirming that the parent provided consent), provided COPPA allows this exception only if you are using the PII for internal purposes (e.g., you are not giving kids a forum where they can disclose their information to others).
      
2. When you ask for consent, describe to parents how information will be used, if it will be disclosed, and what future collections you will make from the minor.
3. Remember, even if you obtain verifiable parental consent, it only allows you to collect PII from minors in Maine, it does not allow you to market to them using the information.

We are aware that several industry groups are considering mounting a challenge to this new law.  We will monitor whether these challenges bring any changes to the law, but until such time, the law is effective September 12, 2009. 

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Copyright © 2009. Winston & Strawn LLP.