Congress - Senator Chuck Grassley (R-IA) introduced the Physician Payments Sunshine Act (S. 301), which would require public reporting of extensive details on any payment or gift to a physician or physician-owned hospital from a pharmaceutical, biologic, medical device or medical supply manufacturer. Absent an exemption for market research incentives, such incentives (over $100 aggregate for a given year) would have to be publicly reported. MRA is working to exempt market research incentives from this legislation and to ensure that similar state reporting laws are pre-empted.
TX - Sen. Ellis (D) introduced S.B. 151, which would require pharmaceutical manufacturing companies doing business in Texas to submit an annual report to the Texas State Board of Pharmacy disclosing “the value, nature, and purpose of any gift, fee, payment, subsidy, or other economic benefit in connection with detailing, promotional, or other marketing activities of the company, directly or through representatives, by a physician, hospital, nursing home, pharmacist, pharmacy, health benefit plan administrator, or other person authorized to prescribe or dispense prescription drugs.” S.B. 151, as it would apply to survey and opinion researchers (“directly or through representatives”), would also require a form report to provide the name and address of each gift recipient, but would allow a company to identify and exclude from the report trade secret information (a possible avenue for affected researchers to protect respondent information). MRA identified marketing research incentives to physicians as a top priority this year, and will seek to exempt such incentives from S.B. 151’s reporting requirements.
Congress – Senator Diane Feinstein (D-CA) introduced the Data Breach Notification Act (S. 139), which would require any business or federal agency to notify an individual of a security breach involving personal data “without unreasonable delay” and to notify the Secret Service if records of more than 10,000 individuals are obtained or if the database breached contains more than 1 million entries, is owned by the federal government, or involves national security or law enforcement. According to S. 139, “reasonable delay … may include any time necessary to determine the scope of the security breach, prevent further disclosures, and restore the reasonable integrity of the data system and provide notice to law enforcement when required.”
S. 139 provides a limited “safe harbor” where an entity is exempt from the notification requirements if: “(A) a risk assessment concludes that there is no significant risk that a security breach has resulted in, or will result in, harm to the individual whose sensitive personally identifiable information was subject to the security breach; (B) without unreasonable delay, but not later than 45 days after the discovery of a security breach (unless extended by the United States Secret Service), the agency or business entity notifies the United States Secret Service, in writing, of-- (i) the results of the risk assessment; and (ii) its decision to invoke the risk assessment exemption; and (C) the United States Secret Service does not indicate, in writing, and not later than 10 business days after the date of receipt of the decision described in subparagraph (B)(ii), that notice should be given.
S. 139 also presumes “that no significant risk of harm to the individual whose sensitive personally identifiable information was subject to a security breach if such information-- (A) was encrypted; or (B) was rendered indecipherable through the use of best practices or methods, such as redaction, access controls, or other such mechanisms, that are widely accepted as an effective industry practice, or an effective industry standard.”
S. 139 pre-empts the many state laws on data breach notification, although some states may still require that notifications “include information regarding victim protection assistance provided for by that State.”
“Personally identifiable information” as regards S. 139 “means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any— (A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or (D) telecommunication identifying information or access device”.
S. 139 would apply to survey and opinion researchers and might be the profession’s best option among the many competing federal data security bills.
Personally Identifiable Information
NY - Assembly Member Pheffer (D) introduced A.B. 272, which would expand the state’s definition of personally identifiable information to include electronic mail addresses and would prohibit the sale “or lease [of] any consumer’s electronic mail address and other personal identifying information” obtained online “without providing the consumer with a clear and conspicuous notice of the collection of the consumer’s electronic mail address and any other personal identifying information and the ability to opt out of the sale or lease” of that information. “Personally identifiable information” includes, but is not limited to, “a person’s social security number, date of birth, current and prior addresses and mother’s maiden name.” A.B. 272 applies to all persons and businesses, including survey and opinion researchers who collect, buy, sell or rent such data.
OK - Sen. Adelson (D) introduced S.B. 379, which would prohibit “prescription information” that contains patient and prescriber “identifiable data” to be “licensed, transferred, used or sold by any pharmacy benefits manager, insurance company, electronic transmission intermediary, retail, mail order or Internet pharmacy or other similar entity for any commercial purpose.” A “commercial purpose” means “activities including, but not limited to, advertising, marketing, promotion or any other activity that could be used to influence sales or market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual healthcare professional or evaluate the effectiveness of a professional pharmaceutical detailing sales force.” Due to the broad definition of a “commercial purpose,” survey and opinion research practices may be included. MRA will seek an explicit exemption for research purposes from this bill’s restrictions.
Transfer of Financial Data Abroad
Congress – Rep. Ted Poe (R-TX) introduced H.R. 427, which would require financial institutions to provide notice (and opt out) to any U.S. citizen before transfer of that citizen’s personal information to a “foreign affiliate or subcontractor” (which could include a survey and opinion researcher).
Congress – Senator Bill Nelson (D-FL) introduced the Truth in Caller ID Act (S. 30), which would make it “unlawful for any person within the United States […] to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm or wrongfully obtain anything of value.” MRA always recommends researchers strive for “truth in caller ID,” and S. 30’s restrictions should pose no impediment to legitimate survey and opinion research practices.
AL - Rep. Lynn introduced H.B. 4, which would prohibit a person from making a call that displays false caller identification information if the intent is to defraud.
Cell Phone Number Disclosure
Congress – Rep. Ted Poe (R-TX) introduced the Consumer Cell Phone Number Distribution Protection Act (H.R. 428), which would prohibit anyone from knowingly disclosing “to another, for gain, a wireless subscriber's cell phone number without the express permission of the subscriber for that specific disclosure, if the number (1) is not already readily publicly available; and (2) was obtained by the discloser or one in privity with the discloser as a condition of completing a commercial transaction that is in or affects interstate or foreign commerce and is unrelated to the disclosure.” Violators would be subject to up to six months in prison. MRA will be contacting Rep. Poe’s office to ascertain his intent and how H.R. 428 might impact survey and opinion research.
Congress – Rep. Virginia Foxx (R-NC) introduced H.R. 116, 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. The bill 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 automated public opinion polling, MRA will contact Rep. Foxx to educate her office on the difference between political advocacy calls and legitimate survey research, and to help her refine her definition so as not to impede the efforts of the research profession.
MS - Sen. Yancey (R) introduced S.B. 2475, which would require political telephone calls “supporting or opposing a candidate, elected public official or ballot measure” to disclose the sponsor of the call. The legislation provides an explicit exemption for political polling regarding a “candidate or public official” provided that it is “a part of a series of like telephone calls that consists of fewer than one thousand completed calls and averages more than two minutes in duration.” MRA will communicate with Sen. Yancey to clarify whether this exemption extends to ballot measures.
TX - Sen. Shapleigh (D) introduced S.B. 307, which would require political party executives, officers, attorneys and representatives for a corporation or agents acting on behalf of a “candidate, officeholder, political committee, political party executive committee, corporation, partnership or other business entity,” to disclose the sponsor of a political call. The legislation, however, explicitly exempts political polling of respondents “concerning a candidate, officeholder or measure that is a pert of a series of similar telephone calls that consists of fewer than 1,000 completed calls if the average duration of the calls is longer than two minutes.”
Congress – The House economic stimulus appropriations legislation, H.R. 1, includes $1 billion in emergency funding for the decennial Census, which MRA requested with our coalition allies on January 15. Among other functions, this funding will expand paid advertising, help hiring hundreds of additional Partnership Specialists, open more Local Census Offices in hard-to-count areas, hire more Census takers for door-to-door visits (Non-Response Follow-Up operation), and expand training for all 2010 Census field workers. Although Rep. John Lewis (D-GA) attempted to strike the funding in the Appropriations Committee markup, he failed, and MRA will continue to advocate that these needed funds be included in the final bill as it moves to consideration in the Senate.
VA - Rep. Loupassi (R) introduced H.B. 1796, which would change the definition of “commercial electronic mail” (spam) to “electronic mail, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose).” The bill specifically protects non-commercial e-mails from being considered as such just because they carry added advertising from a transmitting ISP or e-mail provider (such as Yahoo Mail).
Telephone Solicitation/Do Not Call
Congress – Rep. Peter King (R-NY) introduced H.R. 522, which would tighten the restriction on telemarketers’ calling hours to prohibit any telephone solicitation calls between 5 p.m. and 7 p.m. The legislation seeks to regulate sales context calls only and, as a result, there are no restrictions on the survey research profession.
IN - Rep. Pearson (D) has introduced H.B.1192, which would allow business lines to be added to the state Do Not Call list. Indiana’s Do Not Call law still applies to sales-related telephone calls only, and does not impact legitimate calls for survey and opinion research.
MS - Rep. Zuber (R) introduced H.B. 113, which would add sales calls made via text messages or cell phones to the definition of “telephone solicitation” in the Mississippi Telephone Solicitation Act. Sales calls do not include legitimate calls for survey research.
MS - Rep. Denny (R) introduced H.B. 213, which would add telephone facsimile machine solicitations calls restricted by the Mississippi Telephone Solicitation Act and create a database registry. A “facsimile machine communication” is defined the same as a telephone solicitation — for sales-related communications only. Faxes sent only for legitimate survey research purposes are still exempt.
MS - Sen. Hewes (R), President of the Senate, introduced S.B. 2334, which would broaden the definition of “consumer” in the Mississippi Telephone Solicitation Act to be “an actual or prospective purchaser, lessee or recipient of consumer goods or services.” The term “telephone solicitation” remains limited to sales-related calls, so S.B. 2334 does not apply to survey and opinion research.
NY - Assembly Member McDonough (R) introduced A.B. 941, which would allow consumers to add cellular phone and fax numbers to the state Do Not Call registry. The legislation applies only to commercials or sales-related calls.
OK - Sen. McIntyre (D) introduced S.B. 504, which would amend the definition of consumer under the Telemarketer Restriction Act to include 501(c)(3) not-for-profit entities. The act would still only apply to telephone sales calls.
OK - Rep. Glenn (D) introduced H.B. 1068, which would require disclosure of the “name and organizational or business affiliation” of every person engaged in the telephone solicitation of any item, “tangible or intangible,” and also the disclosure of “the percentage of the contribution that the solicitor will retain.” Solicitation refers to sales and not to legitimate survey and opinion research.