Before the

MAINE STATE LEGISLATURE

In the Matter of )
)
An Act To Protect Minors from Pharmaceutical ) LD 1677
Marketing Practices )
)

Written Testimony of Berin Szoka, Senior Fellow,

The Progress & Freedom Foundation (“PFF”)*

Berin Szoka, Senior Fellow at The Progress & Freedom Foundation (“PFF”) and Director of PFF’s
Center for Internet Freedom1 offers the following comments the proposed “An Act To Protect
Minors from Pharmaceutical Marketing Practices”2 currently pending in the Maine Legislature.
The bill provides the following official summary:
This bill prohibits the collection and use of personal information collected on the
Internet from a minor who is at least 13 years of age and under 17 years of age
for the purposes of pharmaceutical marketing in violation of rules adopted by
the Attorney General. The bill requires the Attorney General to adopt rules
consistent with the federal Children's Online Privacy Protection Act of 1998

*
The Progress & Freedom Foundation is a market-oriented, non-partisan and non-profit (501(c)(3)) think tank
based in Washington, D.C. that studies the digital revolution and its implications for public policy. PFF’s
mission is to educate policymakers, opinion leaders, and the public about issues associated with technological
change, based on a philosophy of limited government, free markets, and individual sovereignty. Szoka is a
recognized expert in cyberlaw and online privacy who has spoken at numerous Washington policy events,
including the Federal Trade Commission’s Exploring Privacy Roundtable in December 2009. See Comments of
Berin Szoka, Senior Fellow, The Progress & Freedom Foundation, to the FTC Privacy Roundtables, Privacy
Trade-Offs: How Further Regulation Could Diminish Consumer Choice, Raise Prices, Quash Digital Innovation &
Curtail Free Speech, Dec. 7, 2009, www.pff.org/issues-pubs/filings/2009/111009-FTC-privacy-workshop-
filing.pdf. Before joining PFF in May 2008, Szoka practiced communications and Internet law at the global law
firm of Latham & Watkins LLP and the communications boutique of Lawler Metzger Milkman & Keeney, LLC,
and clerked for the Hon. H. Dale Cook, Senior U.S. District Judge for the Northern District of Oklahoma. Szoka
received his Bachelor's degree in economics from Duke University and his juris doctor from the University of
Virginia School of Law, where he served as Submissions Editor of the Virginia Journal of Law and Technology.
He is admitted to practice law in D.C. and California (inactive). The views expressed in this report are the
author’s own, and are not necessarily the views of the PFF board, fellows or staff.
1
The mission of PFF’s Center for Internet Freedom is to advance a comprehensive market-oriented approach to
Internet policy issues.
2
An Act To Prevent Predatory Marketing Practices against Minors, LD 1677 (hereinafter the “Proposed Law”),
www.mainelegislature.org/legis/bills/bills_124th/billtexts/SP064901.asp
 *COPPA+ … which regulates the collection and use of personal information from
children under 13 years of age on the Internet.
The rules, which are routine technical rules, must define “pharmaceutical
marketing” in a manner that includes the business of advertising or otherwise
promoting the sale of prescription and over-the-counter drugs, as regulated by
the United States Food and Drug Administration, and ensures the adequate
protection of the health and safety of minors who are at least 13 years of age
and under 17 years of age.
The bill establishes that a violation is an unfair trade practice as prohibited by
the Maine Unfair Trade Practices Act.3

I. Introduction: COPPA 2.0 Laws in General

Maine’s passage of “An Act To Prevent Predatory Marketing Practices against Minors” in the
summer of 20094 was deeply disturbing both in itself and as part of a larger trend at the state
level to expand the Children’s Online Privacy Protection Act (COPPA) of 19985 to apply to
adolescents (minors age 13 through 17). Such laws have been introduced in North Carolina,6
Georgia,7 Illinois8 and New Jersey.9 While the intentions of these “COPPA 2.0” efforts are
undoubtedly noble (if somewhat vague), such laws would have a number of negative
unintended consequences because of the fundamental technical architecture of the Internet, as
Adam Thierer (PFF’s President) and I explained in our 35-page paper, COPPA 2.0: The New
Battle over Privacy, Age Verification, Online Safety & Free Speech, published in May 2009.10

3
Id.
4 th st
An Act To Prevent Predatory Marketing Practices against Minors, LD 1183, 124 Leg., 1 Reg. Sess. (Me. 2009),
www.mainelegislature.org/legis/bills/bills_124th/chapters/PUBLIC230.asp
5
15 U.S.C. §§ 6501-6506.
6
S.B. 132, 2007 Gen. Assemb., Reg. Sess. § 8 (N.C. 2007), available at
www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S132v3.html; see also Roy Cooper, Protecting
Children from Sexual Predators: SB 132, July 24, 2007,
www.ncdoj.com/DocumentStreamerClient?directory=WhatsNew/&file=S132%20Summary%20final.pdf; see
also Adam Thierer, The Progress & Freedom Foundation, Age Verification Showdown in North Carolina, PFF
Blog, July 26, 2007, http://blog.pff.org/archives/2007/07/age_verificatio.html.
7
S.B. 59, Gen. Assemb., 2007-2008 Leg. Sess. (Ga. 2007), available at
www.legis.ga.gov/legis/2007_08/fulltext/sb59.htm.
8
H.B. 1312, 96th Gen. Assemb., Synopsis as Introduced (Il. 2007), available at
www.ilga.gov/legislation/billstatus.asp?DocNum=1312&GAID=10&GA=96&DocTypeID=HB&LegID=43038&Ses
sionID=76.
9
A.B. 108, Gen. Assemb., 213th Leg. Sess. (N.J. 2008), available at
www.njleg.state.nj.us/2008/Bills/A0500/108_I1.HTM.
10
Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy,
Age Verification, Online Safety & Free Speech, Progress on Point 16.11, June 2009, www.pff.org/issues-
pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf; see also The Progress & Freedom Foundation,
Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States, PFF

2
Expanding COPPA to cover older children would be unconstitutional because COPPA 2.0 laws:

 Restrict the rights of adolescents to access legal and potentially beneficial information,
even though these rights are not fully equivalent to those of adults;
 Also burden the free speech rights of adults to the extent that such laws force online
operators to presume that everyone they deal with online might be a child and to
require adults to rebut this presumption through age verification—which would restrict
free speech online and essentially converge with the unconstitutional Children’s Online
Protection Act (COPA),11 another 1998 law sometimes confused with COPPA;
 Impose an undue burden on the rights of online operators to engage in truthful speech
that is not misleading about legal and potentially beneficial pharmaceuticals; and
 Violate the Commerce Clause of the U.S. Constitution when enacted at the state level,
since Internet activity clearly represents interstate commerce that states have no
authority to regulate.
Such laws are also generally inadvisable from a policy perspective in that they would:

 Come at the expense of the clear benefits pharmaceutical advertising provides to

consumers, including adolescents, such as increasing information about their choices
and lowering pharmaceutical prices through competition;
 Potentially reduce, rather than enhance, the privacy of adolescents, parents and other
adults because of the massive volume of personal information that would have to be
collected about users for authentication purposes (likely including credit card data);
 Likely be the subject of massive fraud or evasion since it is not always possible to
definitively verify the parent-child relationship, or because the system could be “gamed”
in other ways by determined adolescents;
 Do nothing to prevent offshore sites and services from operating outside these rules;
and
 Present major practical challenges for law enforcement officials in the face of such
evasion by both domestic users and offshore sites.

II. Comparison: Maine’s Current Law & Proposed Bill

In some ways, both Maine’s existing law and the law currently proposed to replace it are less
problematic than COPPA 2.0 bills considered in other states—none of which have actually been
enacted into law. Unlike these bills, neither the existing law nor the Proposed Law would apply
to all online activity, but instead require verifiable parental consent only for the collection of

Congressional Seminar, July 27, 2009, http://www.pff.org/events/pastevents/072709-online-child-safety-

privacy-free-speech.asp.
11
47 U.S.C. § 231. While COPPA governs sites “directed at” children, COPA would have required age verification
for content deemed “harmful to minors.” COPA has been struck down on First Amendment grounds. See
infra at note 41 and associated text.

3
information for “marketing” purposes (although that term is defined so ambiguously as to apply
to mere “promotion” of pharmaceuticals).
Nonetheless, all the concerns listed above would still apply to such marketing restrictions. Only
in the third category—the free speech rights of the online operators—would the basic
constitutional analysis change, but only in terms of the burden that must be satisfied by the
government in defending regulation. As the Supreme Court has repeatedly noted, even purely
“commercial speech” (that which does “no more than propose a commercial transaction”12) is
“not wholly outside the protection of the First Amendment.”13 While truthful, non-misleading
commercial speech generally receives intermediate, rather than strict, scrutiny, the
government must nonetheless demonstrate that it has a “substantial interest” in regulating the
speech, that the regulation directly advances that interest, and that the regulation is narrowly
tailored to that interest.14 In this case, it remains unclear precisely what the government’s
interest is. In other words, what is the “harm” from which the government is trying to protect
adolescents? This threshold question remains unanswered—and joins all the other practical
concerns listed above.
In some ways, however, the Maine law enacted last summer was considerably more
problematic than the COPPA bills proposed in other states. The Maine legislature and Attorney
General deserve credit for recognizing these problems and attempting to remedy them by
introducing the proposed bill as a substitute for the current law, which the Maine Attorney
General agreed not to enforce after a constitutional challenge in the fall.15
In some important ways, the current proposal marks a significant improvement over that law.
Most notably, the bill removes two key provisions that would have led to staggeringly
draconian outcomes if it were actually to be enforced—and significant chilling effects even
without, or prior to, enforcement:

 A statutory minimum penalty of $10-20,000 for a first violation and $20,000 for other
violations (with every act of unauthorized collection or use potentially constituting a
separate offense); and
 A private right of action.
Even so, the current bill remains deeply problematic for the reasons noted above. Below is a
section-by-section analysis of the bill that highlights key problems, which are then further
developed in a discussion of the broad concerns raised by the bill.

12
Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376, 85 (1973).
13
Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 776 (1976) (internal quotations omitted).
14
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
15
Braden Cox, Maine Committee Does the Right Thing, Recommends Repeal of Marketing Law, The Technology
Liberation Front, Oct. 20, 2009, http://techliberation.com/2009/10/20/maine-committee-does-the-right-
thing-recommends-repeal-of-marketing-law/

4
III. Section-by-Section Analysis
1. Definition. As used in this section, “minor” means a person who is at least 13 years of
age and under 17 years of age.
COPPA currently requires parental consent for the collection and use of information from
children under 13. But as originally introduced in Congress in June 1998, COPPA would have
required “reasonable efforts to provide the parents with notice and an opportunity to prevent
or curtail the collection or use of personal information” for kids 13-16 and would also have
created a parental right of access to any information collected about their children.16 After
hearing concerns about the First Amendment implications of the law for adolescents,17
Congress wisely removed these provisions of the bill, leaving the law applicable only to minors
under 13. Yet the Maine Bill would do what Congress never considered, even in the original bill,
by applying COPPA’s verifiable parental consent framework to adolescents 13 and above. As
noted below, this raises profound First Amendment problems because of the difficulties with
any form of age verification inherent in the technical architecture of the Internet.
2. Prohibition. A person may not collect and use personal information collected on the
Internet from a minor for the purposes of pharmaceutical marketing in violation of
rules adopted by the Attorney General under subsection 3.
This is the key operative section of the law. Most notably, the law does not specify a
knowledge requirement. Omitting so critical a provision as a knowledge requirement from a
statute is a dangerous statutory drafting practice, as it makes it impossible for someone of
ordinary intelligence to understand what the law requires on its face—a basic precept of the
rule of law.
The bill raises two separate but parallel knowledge problems. First, as noted below, subsection
3 requires the state Attorney General to draft rules that are “consistent with and to the extent
possible the same as” those issues by the FTC under COPPA. Thus, the Proposed Law indirectly
imports COPPA’s requirement that an operator either (1) have “actual knowledge” that a user
is, in fact, under 13, or (ii) have constructive knowledge (a term not actually used in COPPA) of
this by virtue of operating a site or service “directed at” such children. In practice, however,
this framework becomes unworkable when extended above age 13 because, for every year
above that age, it becomes significantly more difficult to discern whether a site is “directed at”
that age group and because such sites are much more likely to be used by adults than are sites
geared to children under 13—thus implicating the free speech rights of adults who might be
subjected to age verification mandates as well as those of online speakers trying to a market or
“promote” a truthful, lawful product.

16 th
Children's Online Privacy Protection Act of 1998, S. 2326 as introduced, 105 Cong. (1998), available at
http://thomas.loc.gov/cgi-bin/query/z?c105:S.2326:
17
Testimony of Deirdre Mulligan, Staff Counsel, Center for Democracy and Technology, before the Senate
Committee on Commerce, Science and Transportation, Subcommittee on Communications, Sep. 23, 1998,
available at http://old.cdt.org/testimony/980923mulligan.shtml.

5
Second, the Proposed Law fails to specify that, to be liable, an Internet site or service operator
must know—or even that they ought to know—that the user from whom they are collecting
information is actually in Maine. Thus, the law creates a strict liability offense: an out-of-state
website may be held liable for inadvertent collection of information from adolescents in Maine.
Federal courts are highly likely to strike down such a law under the Constitution’s so-called
“Dormant Commerce Clause” because of its effects on interstate commerce. Specifically, to
avoid this liability, website operators across the country—indeed, around the world—would
have to either abide by Maine’s law for all users or attempt to determine whether every user is
in Maine in order to apply special procedures to users that appear to be coming from Maine (or
simply to shut off service to Maine). Even if this strict liability standard were replaced with a
requirement of constructive or actual knowledge, the law would likely still pose an undue
burden on interstate commerce by opening the door to a patchwork of inconsistent state laws
governing communications in the inherently interstate medium of the Internet. At the very
least, site operators might have to collect additional location information in order to determine
whether a user is actually in Maine—and then implement separate procedures for dealing with
that user.
Finally, as a matter of basic statutory drafting, it makes little sense for the law to prohibit only
the “collection and use.” The law as drafted could be easily circumvented if one party
“collected” personal information and another “used” it—which is probably not the intention of
the law’s drafters. If nothing else, this apparent drafting error suggests that the bill requires
careful and thorough re-consideration.
3. Rules. In order to ensure the health and safety of minors, no later than one year after
the effective date of this section, the Attorney General shall adopt rules governing the
collection and use of personal information collected on the Internet from a minor for
the purposes of pharmaceutical marketing. The rules must be consistent with and to
the extent possible the same as those established under [COPPA]. The rules must
define “pharmaceutical marketing” in a manner that includes the business of
advertising or otherwise promoting the sale of prescription and over-the-counter
drugs, as regulated by the United States Food and Drug Administration…, and that
ensures the adequate protection of the health and safety of minors.
This broad definition of “pharmaceutical marketing” probably exceeds the Supreme Court’s
definition of “commercial speech” as that which does “no more than propose a commercial
transaction."18 If Maine wants to avoid applying its law to non-commercial speech, which
enjoys greater protection under the First Amendment, it should narrow its definition to speech
that clearly proposes the sale of pharmaceuticals.
Either way, Maine will bear the burden of proof in an inevitable First Amendment challenge in
defining the “governmental interest” that justifies its imposition on the speech rights of both
adolescents and adults, both inside and outside of Maine. Again, while the bill implies that its

18
Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376, 85 (1973).

6
purpose is to “ensure” the “protection of the health and safety of minors,” it is unclear what
factual basis the legislature has for concluding that either is at risk from the practices that
would be regulated by the Proposed Law. Legislation typically including findings of fact for
precisely this purpose: to put the legislature on record in specifying why it has concluded
government intervention is necessary. This precept is no mere formality of statutory drafting: It
embodies the basic presumption undergirding a free society and free market that freedom, not
regulation, is the default and impositions upon the freedoms of any actors in society (be they
individuals or corporations) for whatever purpose must be somehow justified.

IV. General Problems Raised by the Bill

A. First Amendment Rights of Minors
The law before the Maine legislature would extend COPPA’s current verifiable parental consent
requirement to adolescents ages 13-16, even after Congress emphatically rejected this
approach. This approach—which could quite literally be summarized as “Mother, may I?”—
directly infringes on the First Amendment rights of adolescents to access lawful information
without parental permission. While the First Amendment rights of minors may not be on par
with those of adults, adolescents do have the right to access certain types of information and
express themselves in certain ways.19 These rights are not derivative of their parents’ or
guardians’ rights, but are the individual minors’ personal rights. Minors “are ‘persons’ under
our Constitution… possessed of fundamental rights which the state must respect,” 20 and “are
entitled to a significant measure of First Amendment protection.”21 The Supreme Court has
held that “constitutional rights do not mature and come into being magically only when one
attains the state-defined age of majority.”22 Indeed, mature minors possess close to the “full

19
See Theresa Chmara & Daniel Mach, Minors' Rights to Receive Information Under the First Amendment,
Memorandum from Jenner & Block to the Freedom To Read Foundation, Feb. 2, 2004,
www.ala.org/ala/aboutala/offices/oif/ifissues/issuesrelatedlinks/minorsrights.cfm (summarizing case law
regarding minors’ first amendment rights, especially in schools and in the context of mandates that public
libraries filter Internet content); United States v. American Library Ass'n, 123 S. Ct. 2297 (2003), available at
htttp://laws.findlaw.com/us/000/02-361.html (upholding the constitutionality of a filtering software system
applicable to minors); see generally, Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969)
(upholding students’ rights to wear protest armbands and affirming that minors have speech rights) available
at www.oyez.org/cases/1960-1969/1968/1968_21; cf. Morse v. Frederick, 551 U.S. 393 (2007), available at
www.oyez.org/cases/2000-2009/2006/2006_06_278/ (holding that the First Amendment rights of students in
school and at school-supervised events are not as broad as those of adults in other settings).
20
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969); see Planned Parenthood v. Casey, 505
U.S. 833, 899 (1992) (parental consent statute must contain method by which minor can obtain abortion
without parental consent); In re Gault, 387 U.S. 1, 13 (1967) (minors’ right to criminal due process).
21
Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213 (1975) (citation omitted).
22
Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) (minors’ right to abortion). See also
Bellotti v. Baird, 443 U.S. 622, 635 n.13 (minors possess close to the “full capacity for individual choice which is
the presupposition of First Amendment guarantees”); Catherine Ross, An Emerging Right for Mature Minors
to Receive Information, 2 U. Pa. J. Const. L. 223 (1999); Lee Tien & Seth Schoen, Reply Comments of the
Electronic Frontier Foundation filed in Implementation of the Child Safe Viewing Act; Examination of Parental
Control Technologies for Video or Audio Programming, MB Docket No. 0926, Federal Communications

7
capacity for individual choice which is the presupposition of First Amendment guarantees.”23
Perversely, Maine law would recognize that a 16 year-old is capable of consenting to sexual
intercourse,24 but deny that near-adult the right to share information about themselves in
order to ask to receive more information about products related to sexual health or
contraception.
While Federal courts have upheld laws requiring parental notification before minors have
abortions performed or even parental consent (subject to a “judicial bypass” where judges may
grant consent if a girl’s parents are unwilling to do so), the state’s interest in ensuring parental
involvement in such a major medical procedure is far greater than in “protecting” adolescents
from truthful information about legal products. Importantly, these abortion laws do not
involve speech rights and even they do not ultimately require “verifiable parental consent.”
The concerns expressed in Congressional testimony offered by the Center for Democracy &
Technology explaining the need for Congress to limit COPPA to children under 13 still ring true
today—nearly twelve years later:
Under the bill each time a 15 year old signs-up to receive information through
email his or her parent would be notified. For example if a 15 year old visits a
site, whether a bookstore or a women's health clinic where material is made
available for sale and requests information about purchasing a particular book or
merely inquires about books on a particular subject (abuse, religion) using their
email address the teenager's parent would be notified. This may chill older
minors in pursuit of information.25
While the Maine law indeed is narrower in its scope than COPPA, the area of “pharmaceutical
marketing” is one where a requirement of verifiable parental consent may do the most harm in
chilling adolescents’ access to information about pharmaceuticals. Teenagers are notoriously
reluctant to share information with their parents and may be discouraged from signing up to
receive information about pharmaceuticals that may be relevant to a wide variety of potentially
sensitive needs, from issues as seemingly innocuous as acne, shaving or body odor (which can
still cause great embarrassment to teenagers) to those as emotionally fraught as weight-loss,
addiction or depression to those as morally contentious as contraception and abortion.
Under the COPPA framework, as CDT noted back in 1998, a child would require parental
permission to sign up for a simple e-mail list—and the same would be true for interactive
discussion fora. Indeed, under an expansive view of the COPPA framework, the same might
also be true for evolving forms of social media, such as “following” an individual or organization

Commission, May 18, 2009,

http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216901.
23
Bellotti v. Baird, 443 U.S. 622, 635 n.13 (quoting Ginsberg v. New York, 390 U.S. 629, 649 (1968)).
24
Maine Criminal Code, tit. 17-A, § 254 (2003), available at www.mainelegislature.org/legis/statutes/17-
A/title17-Asec254.html
25
Testimony of Deirdre Mulligan, supra note 17.

8
on Twitter or becoming a “Fan” of their “Page” on Facebook since the FTC has defined
“personal information” to include names and “[a]n e-mail address or other online contact
information, including but not limited to an instant messaging user Identifier, or a screen name
that reveals an individual’s e-mail address.”26
While the Proposed Law would not appear to restrict the ability of users to directly access
information about pharmaceuticals by, for example, using search engines to find information
about a particular drug or symptom (so long as they shared no information about themselves),
the law would restrict their ability to ask to be provided with information about legal, safe and
effective pharmaceuticals. Courts would likely recognize this as an infringement of their speech
rights, which include the right to access information. This recognizes the simple practical fact
that advertising and marketing play a critical role in providing consumers with useful
information about products they simply would not have found, or even thought to look for, on
their own.27

B. First Amendment Rights of Adults

The FTC has explained Congress’s rationale for drawing the line drawing the line at the age of
13 in COPPA:
Congress and industry self-regulatory bodies have traditionally distinguished
children aged 12 and under, who are particularly vulnerable to overreaching by
marketers, from children over the age of 12, for whom strong, but more flexible
protections may be appropriate. In addition, distinguishing adolescents from
younger children may be warranted where younger children may not understand
the safety and privacy issues created by the online collection of personal
information.28
But this age also corresponds to an important threshold in the real world for applying COPPA—
and one that ensures that COPPA does not infringe on the First Amendment rights of adults. At
about this age, adolescents begin to share interests with adults in ways that children 12 and
below do not; if left to their own devices, adolescents (minors age 13 through 17) would spend

26
16 C.F.R. § 312.2.
27
See infra Section IV.D (“The Benefits of Advertising & Marketing”).
28
Federal Trade Commission, Frequently Asked Questions about the Children's Online Privacy Protection Rule,
Question 8 (“Why does COPPA apply only to children under 13? What about protecting the online privacy of
teens?”), www.ftc.gov/privacy/coppafaqs.shtm. The FTC also reminds companies that:
websites’ information practices regarding teens and adults are subject to Section 5 of the FTC
Act, which prohibits unfair or deceptive acts and practices. See Staff Opinion Letter to Center for
Media Education (July 15, 1997) for guidance on how Section 5 applies to information practices
involving teens. In addition, recent concern about the risks of child participation on social
networking websites led the FTC to issue a set of safety tips for social networking.
See “Social Networking Sites: A Parents’ Guide” (September 2007), available
at www.ftc.gov/opa/2006/05/socialnetworking.shtm; see also
www.onguardonline.gov/docs/onguardonline_socialnetworking.pdf.

9
far more time on “general audience”29 websites than would children (minors under the age of
13). Thirteen is probably about the point at which this transformation begins to accelerate. But
regardless of precisely when it happens, it should be apparent that the sites favored by
adolescents will be difficult to distinguish as “adolescent-oriented” because they are rarely, if
ever, as thoroughly dominated by adolescents as “child-oriented” sites are by children 12 and
under. This problem gives rise to the significant constitutional concerns raised by
implementation of the constructive knowledge element of COPPA 2.0 proposals.
As noted above, the Maine law imports the existing COPPA framework, requiring that an
operator obtain verifiable parental consent if they either (1) have “actual knowledge” that a
user is, in fact, under 13, or (ii) have “constructive knowledge” (a term not used in COPPA) of
this by virtue of operating a site or service “directed at” such children. Congress developed this
framework in an attempt to confront the anonymity inherent in the technical nature of the
Internet—and the fact that true age verification is impossible and any attempt at age
verification is cumbersome. Federal courts have found that there is “no evidence of age
verification services or products available on the market to owners of Web sites that actually
reliably establish or verify the age of Internet users. Nor is there evidence of such services or
products that can effectively prevent access to Web pages by a minor.”30 Few public databases
exist that could be referenced to conduct such verifications for minors, and most parents do
not want the few records that do exist about their children (e.g., birth certificates, Social
Security numbers, school records) to become more easily accessible.31 Indeed, concerns about
those records being compromised or falling into the wrong hands have led to legal restrictions
on their accessibility.32
COPPA 1.0 works in practice without implicating the First Amendment rights of adults because
it does not require age verification for all users. Instead, it applies only when the site knows or
should know that a user is a child. COPPA’s constructive knowledge element applies only to a
virtually distinct “Junior Internet,” which has little overlap between adults and children under
13, and because many parents use technological controls to keep their children (but not their
adolescents) within this Junior Internet. Sites and services that might attract significant
numbers of children are expected to ask for a user’s age—which, while easily circumvented by a
child who knows well enough to lie, at least ensures that the site can refuse service to a child
under 13 or obtain their parent’s verifiable consent, and thus collecting information from
children the site actually knows to be children.

29
The term “general audience” is commonly used instead of “adult-oriented” for content that is not directed at
children.
30
ACLU v. Gonzales, 478 F. Supp. 2d 775, 806 (E.D. Pa. 2007).
31
See Adam Thierer, The Progress & Freedom Foundation, Age Verification Debate Continues; Schools Now at
Center of Discussion, PFF Blog, Sept. 25, 2008, http://blog.pff.org/archives/2008/09/age_verificatio_1.html.
32
Various laws and regulations have been implemented that shield such records from public use, including
various state statutes and the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g,
www.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

10
The problem is that sites used by 13-16-year olds cannot be so easily distinguished from the
Internet at large (including sites that market or “otherwise promote” pharmaceuticals). In
determining whether a website or service is “directed at children” under COPPA, the FTC
currently considers the site or service’s “subject matter, visual or audio content, age of models
[that appear in photos or videos on the site], language or other characteristics of the website or
online service, as well as whether advertising promoting or appearing on the website or online
service is directed to children…. and whether a site uses animated characters.”33 The following
excerpts from FTC complaints illustrate how the agency has applied these criteria:
The … subject matter *of www.lilromeo.com+ is Lil’ Romeo, a twelve-year-old
recording artist who “enjoys ‘just being a regular kid.’” The website features
content directed to children such as an animated game in which the player helps
Lil’ Romeo save an elementary school from aliens by answering simple math and
history questions. The website also features music and lyrics from Lil’ Romeo’s
album “Game Time,” which is “about having fun, and also about, you know,
kids*’+ things…”34
And:
Defendant operates the www.etch-a-sketch.com website, which provides
information about its toys, including the “Etch A Sketch” drawing toy. The
subject matter, visual content, and language of this website are directed to
children under the age of 13. For example, the site features a cartoon character
named “Etchy” - an Etch A Sketch sporting sunglasses, purple hair and legs.
Etchy invites visitors to play “cool games,” such as drawing with an online Etch A
Sketch, finding hidden numbers, letters and shapes, and coloring pictures of
Etchy and friends. The site also contains an “interactive story” titled, “Etchy
Goes to a Birthday Party.”35
The FTC settled both cases with consent decrees—like, apparently, all the FTC’s COPPA
enforcement actions.36 These examples demonstrate that subjective standards can sometimes
work reasonably well in certain contexts. As Justice Potter Stewart famously said of obscenity,
“I know it when I see it.”37 The same could probably be said, in many cases, about what
constitutes child-oriented content; and this approach seems to have worked well enough for
the FTC’s COPPA enforcement efforts.

33
16 C.F.R. § 312.2 (definition of “Website or online service directed to children”).
34
U.S. v. UMG Recordings, Inc., Civil Action No. CV-04-1050, Complaint at 4-5 (C.D. Ca. 2004),
www.ftc.gov/os/caselist/umgrecordings/040217compumgrecording.pdf.
35
U.S. v. The Ohio Art Company, Complaint, ¶ 12 (N.D. Oh. 2002),
www.ftc.gov/os/2002/04/ohioartcomplaint.htm.
36
See Federal Trade Commission, Children's Privacy Enforcement Cases,
www.ftc.gov/privacy/privacyinitiatives/childrens_enf.html (including a consent decree for each case).
37
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

11
But how would such an approach work in determining whether a pharmaceutical marketing site
is directed to teens? Would an acne site be considered “directed at” adolescents age 13-16
even though many acne sufferers are in their late teens or early twenties, or continue to suffer
from acne into their thirties and perhaps even beyond? Unless the site is actually called
something like “Teen Health” or so explicitly focuses on teen matters that its “direction to”
teenagers is unmistakable and its audience would be composed as overwhelmingly of teenagers
as sites covered by COPPA are of children under 13, the Proposed Law could not be
implemented in the same way as COPPA. Specifically, significant numbers of adults would be
subjected to age verification requirements.
This unintended practical consequence would trigger much the same constitutional arguments
against COPA, which would have required that all website operators restrict access to material
deemed “harmful to minors” by minors under the age of 17 and therefore requires age
verification of all users who attempt to access such content (in order to identify minors).38
After a decade-long court battle over the constitutionality of COPA, the U.S. Supreme Court in
January 2009 rejected the government’s latest request to revive the law, meaning it is likely
dead.39 While the Courts that rejected COPA did so largely on the grounds that age verification
would deter anonymous access to potentially sensitive material (such as pornography), the
same basic concerns about chilling adult speech would also apply to any law that required an
adult to prove they were actually an adult before sharing certain basic information about
themselves such as a name and e-mail address as part of a request to receive more information
about pharmaceuticals. If the law forces users to provide more information about themselves
than they are willing to provide, such as a credit card (the most common indirect age
verification mechanism), some users will be discouraged from accessing the desired
information. As the Third Circuit recognized in striking down COPA:
Requiring users to go through an age verification process would lead to a distinct
loss of personal privacy. Many people wish to browse and access material
privately and anonymously, especially if it is sexually explicit. Web users are
especially unlikely to provide a credit card or personal information to gain
access to sensitive, personal, controversial, or stigmatized content on the Web.
As a result of this desire to remain anonymous, many users who are not willing
to access information non-anonymously will be deterred from accessing the
desired information.40
Again, anonymity is not a binary matter: A user will feel less anonymous if they are required to
provide credit card information in addition to the information they want to provide, such as

38
COPA made it illegal to “knowingly … make*+ any communication for commercial purposes that is available to
any minor and that includes any material that is harmful to minors.” 47 U.S.C. § 231.
39
See Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009,
http://blog.pff.org/archives/2009/01/closing_the_boo.html. See also Alex Harris, Child Online Protection Act
Still Unconstitutional, http://cyberlaw.stanford.edu/packet/200811/child-online-protection-act-still-
unconstitutional.
40
Gonzales, 478 F. Supp. 2d 775, 805.

12
their e-mail. Information about pharmaceuticals can be clearly be considered “sensitive,
personal, controversial, or stigmatized content” by some users, as in the examples noted above.

C. First Amendment Rights of Pharmaceutical Marketers & “Promoters”

The necessary corollary of discouraging adults from accessing certain content anonymously—
and thereby deterring some users from accessing that content—is that any COPPA 2.0 law
would, like COPA, necessarily reduce the audience size of online operators subject to age
verification mandates. Furthermore, such mandates would encourage websites to self-censor
themselves to avoid offering content they fear could be considered “directed at” adolescents
because doing so might subject them to an age verification mandate—or to legal liability if they
fail to implement age verification. The Third Circuit cited all of these burdens on the free
speech rights of website operators in striking down COPA.41 And all apply to the proposed
Maine law to the extent that the law would inevitably apply to some adults because, as
explained above, adults and adolescents use the same websites in a way that adults and
children under 13 do not.
For instance, as noted above, a site that offers information about acne medication and allows
users to sign up to receive more information is likely to attract both adolescents and older
teens as well as adults. Requiring users above 17 to prove they are not 16 or below would
necessarily restrict the adult audience of these sites.
This concern is particularly problematic to the extent that the proposed Maine law would,
unlike COPA, apply not merely to commercial speech42 but potentially also to non-commercial
speech as well. As noted above, the Maine law uses a broad definition of “pharmaceutical
marketing” to include “the business of advertising or otherwise promoting the sale of
prescription and over-the-counter drugs.” Under this definition, the law would apply not
merely to for-profit condom manufacturers, but also to advocacy groups that merely
“promote” the use—and therefore the sale—of condoms as a form of contraception or a
precaution against sexually-transmitted infections. Such a burden on non-commercial speech
would demand even higher First Amendment scrutiny.
Although the debate about the First Amendment treatment of commercial speech continues to
rage, it should be noted that the Supreme Court has made it clear commercial speech is
deserving of First Amendment protection like other forms of speech. Several Supreme Court
decisions over the past four decades have highlighted the important role that advertising and

41
See ACLU III, 534 F.3d at 196-97 (citing Gonzales at 804). The Court held that websites “face significant costs
to implement *COPA’s age verification mandates+ and will suffer the loss of legitimate visitors once they do
so.” Id. at 197.
42
47 U.S.C. 231(1) (“Whoever knowingly and with knowledge of the character of the material, in interstate or
foreign commerce by means of the World Wide Web, makes any communication for commercial purposes
that is available to any minor and that includes any material that is harmful to minors shall be fined not more
than $50,000, imprisoned not more than 6 months, or both.”) (emphasis added).

13
marketing plays in facilitating the flow of information that is beneficial to society. 43 “Both the
individual consumer and society in general may have strong interests in the free flow of
commercial information,” the Court noted in Va. Pharmacy Bd. v. Va. Consumer Council
(1976).44 “As to the particular consumer’s interest in the free flow of commercial information,
that interest may be as keen, if not keener by far, than his interest in the day’s most urgent
political debate,” Justice Blackmun stressed in that decision.45

D. The Benefits of Advertising & Marketing

The above discussion of commercial free speech rights evinces a growing recognition by the
courts of a growing consensus in the economic literature that advertising itself is an important
type of speech that communicates relevant information to the public. As Nobel laureate
economist George Stigler pointed out in his now legendary 1961 article on the economics of
information, advertising is “an immensely powerful instrument for the elimination of
ignorance.”46 And as advertising scholar John Calfee has argued, “advertising has an
unsuspected power to improve consumer welfare” since it “is an efficient and sometimes
irreplaceable mechanism for bringing consumers information that would otherwise languish on
the sidelines.”47 More importantly, Calfee argues:
Advertising’s promise of more and better information also generates ripple
effects in the market. These include enhanced incentives to create new
information and develop better products. Theoretical and empirical research has
demonstrated what generations of astute observers had known intuitively, that
markets with advertising are far superior to markets without advertising.48
These benefits must be weighed in the balance when considering the alleged harms of
advertising. Any discussion of the effects of advertising on children in particular should begin
by first recognizing, as Calfee concluded after an extensive survey of several decades of
scientific literature, “by the age 10 or so, children develop a full understanding of the purpose
of advertising and equally important, an active suspicion of what advertisers say.” 49 This
healthy suspicion grows into intense skepticism among older youths. Thus, while younger
children covered by COPPA may truly fail to appreciate the nature of advertising, justifying

43
“Constitutional protection for advertising is explicitly based upon the idea that freedom to advertise brings
benefits to markets generally, especially consumers. The central argument in Supreme Court decisions
overturning restrictions on advertising is that consumers can benefit from a free exchange of information –
the ‘marketplace of ideas’ celebrated by authors and jurists since at least the time of John Milton.” John E.
Calfee, Fear of Persuasion: A New Perspective on Advertising and Regulation, 107-8 (Monnaz, Switzerland:
Agora Association, 1997).
44
Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 765 (1976).
45
Id. at 763.
46
George Stigler, The Economics of Information, Jour. of Political Economy, Vol. 69, No. 3, at 213 (June 1961).
47
Calfee, supra note 43, at 96.
48
Id.
49
Calfee, supra note 43, at 59.

14
paternalistic regulation to protect them from it, adolescents are not so vulnerable. Indeed, as
Calfee notes, a 1994 literature review published by the US federal government’s National
Institute for Alcoholism and Alcohol Abuse (NIAAA), concluded that “the general dislike and
skepticism for advertising may result in adolescents tuning out most advertising they are
exposed to, and may result in increased vigilance of advertising claims. This could result in
adolescents being less influenced by advertising than adults.”50
Calfee explains that, in the 1960s and 70s, “Advertising to children came to be seen as
profoundly different from advertising in general, bereft of advertising’s usual benefits and
carrying more than the usual costs. The implication was that children and their families should
be protected from receiving any advertising directed to children at all.” 51 This perception led
the Federal Trade Commission to launch a crusade against advertising on children’s
programming:
In the late 1970s, the FTC staff proposed a ban on all television advertising to
children under the age of 8, and a ban on television advertising for sugared
products targeted at children aged 8 through 12. This proposal never came close
to enactment. The Washington Post editorial page, normally a friend of FTC
regulation, declared that the agency was trying to become the ‘national nanny.’
Criticism of FTC overreaching became widespread. Fighting to preserve its very
existence, the FTC soon dropped its children’s advertising scheme.52
Since this regulatory disaster, economic literature has recognized that “Advertising to children,
so often believed to be an exception to rule that advertising makes markets work better,
actually provides one of the more compelling examples of the benefits of advertising.” 53 Even
in the case of young children, advertising has dramatically driven down the prices of children’s
toys by making markets more competitive:
Sellers advertised their brands directly to children. The children asked their
parents to buy the toys they saw on TV without caring how much they cost. The
parents went to the store looking for the brands their children wanted. Then
what happened? A lot of people might assume that the parents encountered
higher prices because demand had been increased through advertising targeted
at an ignorant audience (children). But this is another case where popular
expectations are mistaken. One must take into account the competitive process.
The ads ratcheted up competition at the retail level, so much so that parents in
search of heavily advertised toys actually found lower prices. It was a remarkable

50
Id. at 61 (citing David W Stewart & Ronald Rice, Non-traditional Advertising and Promotions in the Marketing
of Alcoholic Beverages, in Susan E Martin, ed. Research Monograph No 28, The Effects of the Mass Media on
the Use and Abuse of Alcohol (1995), at 228) (emphasis added).
51
Id. at 60.
52
Id. at 60 (citing Susan Foote & Robert Mnookin, ‘The “Kid Vid” Crusade’, 61 (1980), available at
www.nationalaffairs.com/public_interest/detail/the-kid-vid-crusade).
53
Id. at 64.

15
 example of the indirect benefits of advertising, and it should be much better
known than it is today.54
Calfee also explains the benefits of advertising about health information. He recounts in detail
how the FTC’s victory over the FDA in allowing food manufacturers to tout the health benefits
with truthful health claims of their products did much to drive demand for, and increase supply
of, healthier foods—despite the FDA’s decades-long insistence that any product advertised with
such claims must be re-classified as a “drug” and subjected to clinical testing so onerous that
“health foods” hardly existed before the FTC’s courageous defense of the intelligence of
ordinary consumers to choose for themselves among truthfully advertised products. 55 As
Calfee concludes:
Once unleashed from its regulatory prison, competitive advertising of health
claims for foods proved to be pervasive, relentless (ask anyone in the packaged
food business about this) and surprisingly extensive in its effects on information.
Health claims induced changes in foods, in non-foods such as toothpaste, in
publications ranging from Consumer Reports and university health letters to
mainstream newspapers and magazines, and of course, consumer knowledge of
diet and health.
These rippling effects from health claims in ads demonstrated the most basic
propositions in the economics of information. Useful information initially failed
to reach people who needed it because information producers could not charge
a price to cover the costs of creating and disseminating pure information. And,
this problem was alleviated by advertising, sometimes in a most vivid manner.56
Thus, despite the common “Fear of Persuasion” that often drives advertising restrictions,57
advertising plays a critical role in educating all of us—including adolescents—about beneficial
products and services.

E. Less Restrictive Alternatives to Regulation

First, if Maine is concerned about the effects of certain kinds of speech on adolescents, the best
response is to counter that speech by promoting or supporting speech intended to educate
teens about pharmaceuticals and to remedy whatever it is the state finds objectionable about
pharmaceutical marketing—which, again, remains unclear, since the state has not specified
what harm it has in mind. Such education could take place through schools, parents, or health
care professionals. The Federal Trade Commission has already developed two excellent
examples of awareness-building efforts: First, “You Are Here” provides a virtual mall that
educates teens about advertising techniques, target marketing, suspicious claims, as well as

54
Id. at 62.
55
Id. at 23-29.
56
Id. at 33.
57
See generally Calfee, supra note 43.

16
online privacy, and various online scams.58 Second, “OnGuard Online” provides, for a broader
audience, “practical tips from the federal government and the technology industry to help you
be on guard against Internet fraud, secure your computer and protect your personal
information.”59
Second, Maine can and should enforce its existing laws against unfair and deceptive trade
practices—which are, of course, also punished by the Federal Trade Commission. 60 If a
pharmaceutical company is engaging in truly “predatory” marketing practices—such as enticing
teens with a fraudulent offer of a free iPod in order to get them to provide personal
information—such practices are probably already illegal. Again, the state needs to be clear
about precisely which “predatory practices” it is trying to thwart, rather than simply restricting
all pharmaceutical marketing.
Third, the state could promote parental empowerment tools. The Third Circuit drew on the
Supreme Court’s 2004 decision striking down COPA on the grounds that “*b+locking and filtering
software is an alternative that is less restrictive than COPA, and, in addition, likely more
effective as a means of restricting children’s access to materials harmful to them.” 61 Similarly,
parental control software already empowers parents to restrict adolescents’ access to sites that
might collect information from their children for pharmaceutical marketing purposes. A simple
black-list could be developed that would block access to websites run by drug manufacturers
and other commercial ventures—perhaps accompanied by software that directs adolescents to
non-profit sites that provide information about pharmaceuticals. Such a tool could be
implemented by a parent concerned about their child’s exposure to pharmaceutical marketing.
In all these cases, the state might actually have to spend money—in promoting education, in
bolstering enforcement of existing laws or in encouraging self-help solutions—but these
solutions are preferable to regulation for two reasons. First, as the Supreme Court held in a
2000 decision concerning blocking potentially objectionable content on cable television,
“*t+echnology expands the capacity to choose; and it denies the potential of this revolution if
we assume the Government is best positioned to make these choices for us.”62 Second, these
solutions are likely to be at least as effective in preventing real harm to adolescents and in
preparing our youth to use digital media wisely.

F. The Dormant Commerce Clause

Just as the Proposed Law’s potential application to adults creates a variety of First Amendment
problems, the law’s potential application to users who are not Maine residents creates a variety

58
www.ftc.gov/youarehere/
59
www.onguardonline.gov/
60
See supra note 28 (noting that the FTC has reminded websites that their “information practices regarding
teens and adults are subject to Section 5 of the FTC Act, which prohibits unfair or deceptive acts and
practices.”)
61
Id. at 198 (quoting ACLU v. Mukasey, 534 F.3d 181, 198 (2008)).
62
United States v. Playboy Entertainment Group, 529 U.S. 803, 818 (2000).

17
of problems under the Commerce Clause of the U.S. Constitution since Internet activity clearly
represents interstate commerce that states have no authority to regulate. The Internet is a
uniquely “interstate” medium whose architecture makes it difficult, if not impossible, to isolate
the effects of state regulation on residents of that state. There is a long string of “Dormant
Commerce Clause” cases that have consistently struck down state laws attempting to regulate
commerce (or speech) that originates or takes place outside the state’s borders. 63 If it is not
possible for a state government to isolate the effects of its regulatory actions to merely those
operators or users living within its jurisdiction, federal courts will block such measures.
Consequently, the extraterritorial impact of state-based COPPA expansion would likely result in
an immediate constitutional challenge and such regulation would almost certainly be
overturned.

V. Other Policy Concerns

A. The Ineffectiveness & Unintended Consequences of Age Verification
Mandates
There are a host of other concerns about age verification mandates.64 Some of these concerns
were summarized in a recent report produced by the Internet Safety Technical Task Force, a
blue ribbon task force assembled in 2008 by state Attorneys General to study this issue:
Age verification and identity authentication technologies are appealing in
concept but challenged in terms of effectiveness. Any system that relies on
remote verification of information has potential for inaccuracies. For example,
on the user side, it is never certain that the person attempting to verify an
identity is using their own actual identity or someone else’s. Any system that
relies on public records has a better likelihood of accurately verifying an adult
than a minor due to extant records. Any system that focuses on third-party in-
person verification would require significant political backing and social
acceptance. Additionally, any central repository of this type of personal
information would raise significant privacy concerns and security issues.65

63
See generally Adam Thierer, The Delicate Balance: Federalism, Interstate Commerce, and Economic Freedom in
the Technological Age at 58-61 (The Heritage Foundation, 1999).
64
For a fuller exploration of these issues, see Adam Thierer, The Progress & Freedom Foundation, Social
Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, Mar.
2007; Adam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical
Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/
090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—
And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety:
A Security Professional’s Take, The Guardian, Spring 2007,
www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.
65
Internet Safety Technical Task Force, Enhancing Child Safety & Online Technologies: Final Report of the
Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys
General of the United States, Dec. 31, 2008, at 10, http://cyber.law.harvard.edu/pubrelease/isttf. Full
disclosure: PFF’s Adam Thierer was a member of this task force.

18
Ironically, the Maine law would require the collection of more personal information about
adolescents, parents and other adults because of the massive volume of personal information
that would have to be collected about users for authentication purposes (likely including credit
card data). Again, this privacy concern is magnified to the extent that some sites would have to
presume its users might be children—and therefore collect additional information from adults
necessary to conduct age verification, such as credit card information.
B. Inconsistency with National Policy
Finally, even if a court held that state-level expansion of the COPPA framework was not pre-
empted by federal law, and therefore unconstitutional under the Supremacy Clause of the
Constitution, COPPA 2.0 laws are clearly inconsistent with the general framework for Internet
governance explicitly laid down by Congress in Section 230 of the Communications Decency Act
of 1996, where Congress declared that it would be the “policy of the United States”:
(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or
State regulation;
(3) to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who use
the Internet and other interactive computer services;66
Congress found that:
(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in
the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information
that they receive, as well as the potential for even greater control in the future
as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development,
and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.67

66
47 U.S.C. § 230(b)(1-3) (emphasis added).
67
47 U.S.C. § 230(a)(1-4) (emphasis added).

19
VI. Conclusion
Given the effects of state regulation on the uniquely interstate medium that is the Internet,
regulations such as the proposed Maine law will probably fail to pass constitutional muster
under the Dormant Commerce Clause. Even if the law could be amended to avoid this problem
(or simply implemented at the Federal level), the First Amendment problems raised by any
attempt to apply the verifiable parental consent framework of COPPA to adolescents would
likely prove insurmountable. The legislature should focus on educating and empowering all its
citizens, especially adolescents, to make smart decisions as Internet users and consumers. If
regulation has a role to play, it lies in protecting consumers from clear, demonstrable and
specified harms—starting with enforcement of existing laws against unfair and deceptive trade
practices at both the state and federal level.

Respectfully submitted,

Berin Szoka, Senior Fellow

The Progress & Freedom Foundation
1444 Eye St., NW, Suite 500
Washington, D.C. 20005
202-289-8928
bszoka@pff.org
www.pff.org

March 4, 2010

20