Current Legislation

  • Telephone
    • Automated Calls
    • Autodialers
    • Political Calls
    • Cell Phone Directory Listings
  • Physician Gift Reporting
  • Privacy
    • Healthcare Privacy
  • International
    • UK: Data Privacy
    • France: Taxes on Internet and Cell Phone Access

Initial Outlook for the 2008 Legislative Session

Regarding legislation in the US, three factors are currently generating a great deal of state legislative action:

- A carryover year from 2007 sessions;
- Changes in party control of legislature in a few states; and
- A presidential election year.

Bill production is booming and a few states have introduced problematic legislation– notably, several bills that explicitly include polls and surveys. As MRA has warned repeatedly, the states are including survey and opinion research, but are misunderstanding the research profession.

If passed, the high priority legislation provided in this legislative update would severely restrict the research profession’s ability to obtain representative samples. However, MRA’s careful early monitoring should make it easier for us to work with state legislative staff to remedy these problematic high priority bills before they cripple research efforts.

The situation reinforces the need for more grassroots volunteers to assist with this cause. In the meantime, though there will be turbulence, MRA will continue to advocate, educate and Shield the Profession.

Telephone
Telephone: Automated Calls

  • Kentucky: Rep. Higdon (R) introduced H.B. 90, which would prohibit using automated calling equipment to conduct polls or solicit information (including for research purposes). Automated calling equipment means “any device or combination of devices which is used to select or dial telephone numbers and to deliver recorded messages to the numbers so selected or dialed.” MRA will work with the Kentucky legislature to help meet the needs of the sponsor while protecting the ability of the profession to use interactive voice response (IVR) and other prerecorded and artificial voice calling systems.
  • West Virginia: Rep. Campbell (D) introduced H.B. 3148, which would create a state Do Not Call list. The legislation provides an explicit exemption for polling or to “solicit the expression of ideas, opinions, or votes” under the scope of the do not call list. However, the bill would restrict the use of automatic dialing-announcing devices, including use by the research profession. An automatic dialing-announcing device (ADAD) is defined as “a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number dialed.” The legislation prohibits a caller from using or connecting a telephone line to an ADAD, unless the subscriber has requested receipt of the message or the message is preceded by a live operator who obtains consent. The live operator must disclose specific information and the ADAD must remove certain numbers from its equipment and terminate within 10 seconds after the call. MRA will be in contact with the sponsor of this bill and work to carve out an exemption for ADAD use in legitimate survey and opinion research.

Telephone: Political Calls

  • Congress: Rep. Stupak (D-MI) introduced H.R. 4298, which would add “politically-oriented recorded message calls” to the existing restrictions on telemarketing sales calls to residential and cellular lines listed in the federal Do Not Call registry. This bill is identical to H.R. 248 and H.R. 372. It defines “politically-oriented recorded message telephone call” as any outbound telephone call with a recorded message “whose purpose is to promote, advertise, campaign, or solicit donations, for or against any political candidate or regarding any political issue, or uses in the recorded message any political candidate's name.” Since the definition's inclusion of calls that use “any political candidate's name” would entrap some public opinion polling using Automatic Dialing Announcing Devices (ADAD) or Interactive Voice Response (IVR) systems, MRA will be contacting Rep. Stupak to educate him on the difference between political advocacy calls and legitimate survey research. MRA will also help him refine his definition, as we are doing for H.R. 248 and H.R. 273 in 2007, so as not to impede the efforts of the research profession.
     
  • Colorado: Sen. Keller (D) introduced S.B. 48, which would prohibit political telephone solicitations made by automatic dialing machines. The definition of a political telephone solicitation caller explicitly excludes “a professional polling organization conducting a bona fide survey of public opinion.” However, a political telephone solicitation explicitly includes polls, surveys or the expression of ideas or opinions for or about state or local issues. S.B. 48 would prohibit researchers conducting such polls from calling any person located or registered to vote in Colorado, unless the caller has a preexisting relationship with the respondent. The bill also prohibits the listing of a cellular telephone number in a directory for a commercial purpose without consent, or using a scanning device or other electronic means to identify a cellular number in order to make a political solicitation call. This legislation would severely restrict political research in Colorado. MRA will work with the sponsor of this bill to help him achieve his legislative goals while preserving the research profession’s ability to conduct political research in Colorado.
  • Missouri: Rep. Swinger (D) introduced H.B. 1547 and Rep. Bringer (D) introduced H.B. 1606, both of which would amend Missouri’s definition of telephone solicitation to explicitly include polling for a political candidate. Telephone solicitation is defined as “…any voice communication over a telephone line through the use of ADAD equipment for the purpose of endorsing a political candidate, requesting financial support or a vote for a political candidate, or conducting polling regarding a political candidate notwithstanding whether the data obtained from the polling is the analyzed or discarded…” It appears that Missouri’s intent was to regulate political telemarketing (“push polls”) --however, the legislation took a broad approach and includes legitimate political polling. MRA will work with the sponsors to help achieve their goals while Shielding the Profession from undue restrictions on research in Missouri.
  • New Jersey: Sen. Ciesla (R) introduced S.B. 357 and Rep. Wolfe (R) introduced A.B. 1225, which would amend the definition of telemarketing to include a telemarketing political call. “Telemarketing political call” is defined as “a telephone call made as part of any plan, program or campaign which is conducted by telephone by or on behalf of a candidate for public office or a political organization, including polling done by or on behalf of a candidate for public office or a political organization.” Since the definition includes legitimate survey and opinion research, these bills would prohibit many research studies from contacting anyone who has registered on the New Jersey do not call list. MRA will be working with the bills’ sponsors in order to educate them on so-called “push polling” or political telemarketing, which appears to be their concern, and help them re-draft their legislation using our model language – language which protects legitimate public opinion polling.

Telephone: Cell Phone Directory Listings

  • Congress: Sen. Brown (D-OH) introduced the “Cell Phone Number Protection Act” (S. 2361) and Sen. Boxer (D-CA) introduced the “Wireless 411 Privacy Act” (S.2454), both of which aim to prevent the publication of directories of cell phone numbers. These bills respond to a since-dropped idea from several years ago, in which various wireless carriers proposed a “wireless 411” directory of cell phone numbers. Users would have had to opt in through their carrier in order to be listed. In any case, because the project has never gotten off the ground, these two pieces of legislation are, for the most part, irrelevant. MRA will however, continue to watch for legislation or wireless industry efforts to develop a database of cell users.

Physician Gift Reporting

  • New Hampshire: Rep. Donovan (D) introduced HB 1518, which would prohibit a pharmaceutical manufacturer or agent from giving to a health care practitioner, family member, health care facility, or public official a gift of any value (including incentives for physicians to participate in research). The legislation explicitly mentions that it applies to market research surveys and requires manufacturers and/or labelers to file an annual report with the department of health and human services. This legislation would severely hamper pharmaceutical market research, and MRA will be working to ensure that research is ultimately excluded or protected from this kind of restriction.
  • Washington: Rep.Green (D) introduced H.B. 2498 and Sen. Kohl-Welles (D) introduced S.B. 6302, both of which would require pharmaceutical manufacturers, marketers and their agents to annually file a report for any gifts of any value provided to physicians and healthcare facilities. The definition of gift expressly includes honoraria. These bills also require the release of the receiving physician’s drug enforcement number or other unique identifier for reporting purposes. HB 2498 and SB 6302 are serious threats to pharmaceutical marketing research because physician respondent incentives would require the revelation of personally identifiable information. MRA is in contact with the state legislature and will again work to achieve their reporting interests while reinforcing the need to protect respondent privacy in research.

Privacy: Healthcare IT and Privacy

  • Congress: Activists are lobbying to add a troublesome privacy amendment to the Wired for Health Care Quality Act (S. 1693), which was passed in the Senate Health Education Labor and Pensions Committee back in August. S. 1693 would, among other purposes, require government purchases of health IT to meet basic standards on information exchange, as set by the “American Health Information Community.” The Coalition for Patient Privacy is trying to convince the Committee to adopt an amendment by Senator Pat Leahy (D-VT) which would apply the bureaucratic restrictions of the HIPAA Privacy Rule to personal health information transmitted or stored by healthcare information networks -- and without any special exemptions for research purposes. The Leahy amendment is adapted from his Health Information Privacy and Security Act (S. 1814), which would extend HIPAA-style restrictions to ANY entity that stores personal health information, and would require de-identification for any research using such data. MRA will be contacting the Committee and Senator Leahy in order to educate them about the importance of research access to data and work with them to ensure that such access is protected in any final legislation.

For more information on S. 1693 and other issues regarding healthcare and information technology networks and their impact on survey and opinion research activities, see Healthcare Privacy and Healthcare IT, Nov. 2007.

International
International: Data Security

  • United Kingdom: The British Parliament will be considering changes to the UK data protection laws that would make chief executives directly responsible for safeguarding personally identifiable information safe and criminalize the improper use of data. Information Commissioner Richard Thomas, the head of the body charged with protecting personal data, addressed the Justice Committee of the House of Commons in early December and sketched out sweeping changes to the UK’s data protection laws. Thomas’ proposed legislation would include a requirement for certified confirmation from a company’s chief executive that safeguards have been put in place to protect personal data. This follows hard on the heels of Her Majesty’s Revenue & Customs’ data breach, where the agency lost personal financial data on more than 25 million people. MRA will endeavor to keep our members informed about any developments, although we have no direct lobbying presence in Europe.

International: Taxes on Internet and Cell Phone Access

  • France: President Nicolas Sarkozy proposed on January 8 to impose taxes on internet access and cell phone usage in France. The new taxes could make research contacts using such modes more expensive, and discourage respondent cooperation. For the proposal to become policy, his government would have to draft a bill and get it approved by both houses of Parliament. Such measures would not likely take affect until next year, because of a busy parliamentary agenda and municipal elections in March. MRA will endeavor to keep our members informed about any developments, although we have no direct lobbying presence in Europe.