VA - Rep. Loupassi (R) has pre-filed H.B. 1, which would change the focus of Virginia's spam law to focus on unsolicited "commercial electronic mail" instead of unsolicited bulk e-mail. According to H.B. 1, "Commercial electronic mail" would mean "electronic mail, the primary purpose of which is the advertisement or promotion of a commercial product or service." Since survey and opinion research e-mails would no longer be covered by Virginia's spam law if H.B. 1 passed, since research e-mails are inherently non-commercial, MRA supports this legislation.

Data Security
Congress - The Senate Judiciary Committee passed two data security bills, the Personal Data Privacy and Security Act (S. 1490) and the Data Breach Notification Act (S.139), which now await consideration by the full Senate. We covered S. 139 in the February 2009 Legislative Update and it passed unchanged. S. 1490 is discussed at length in "Restrictive Data Security Bill Advances in U.S. Senate."

FL - Rep. Frishe (R) has pre-filed H.B. 279 and Sen. Fasano (R) has pre-filed S.B. 586. These companion bills would require all public agencies and private entities in Florida that collect personal information to adhere to the procedures provided in the National Institute of Standards and Technology's "Guidelines for Media Sanitization" when destroying such information and maintain a copy of the Guidelines on the computer desktop of whoever at those entities oversees data destruction. The definition of personal information is extremely broad and the bill does not clarify what data must be destroyed in what way. These bills merely reference the NIST publication, which does not make such distinctions either. Absent such distinctions, MRA does not expect these bills to advance.

Do Not Call
WI - The Wisconsin Department of Agriculture, Trade and Consumer Protection, issuing a "Statement of Scope of a Proposed Rule" (ATCP 127), plans to allow consumers to add their cell phone numbers to the state do not call registry. Since the registry only impacts telemarketing calls, the regulation poses no concern for the survey and opinion research profession.

Congress - The House and Senate are in "conference" to resolve their differences in the Fiscal Year 2010 CJS Appropriations bill (H.R. 2847), which will determine how much funding the Census Bureau receives. MRA contacted Congress, along with other members of the Census Project, requesting that they adopt the $7.324 billion allocated by the Senate's bill. If Congress does not come to agreement soon, the bill may be wrapped into an "omnibus" late in the year, combining all the remaining annual funding legislation into one big bill.

Congress - Before the House and Senate could go to "conference" on H.R. 2847 (as discussed above), the Senate was held up by a potentially devastating amendment from Sens. David Vitter (R-LA) and Robert Bennett (R-UT) that would have denied funding for the Census Bureau unless the agency added questions to the 2010 census on citizenship and immigration status. (Sen. Vitter had said he planned to modify the amendment to only require a new question on citizenship, if the Senate considered the proposal.). On Nov. 5, the Senate voted for "cloture" by a vote of 60 to 39, ending debate on the Fiscal Year 2010 Commerce Department spending bill, ending consideration of an amendment authored by Sens. David Vitter (R-LA) and Robert Bennett (R-UT) that would have denied funding for the Census Bureau unless the agency added questions to the 2010 Census on citizenship and immigration status. (Sen. Vitter had said he planned to modify the amendment to only require a new question on citizenship, if the Senate considered the proposal.) The sponsors said their intent is to exclude undocumented residents from the state population totals used for congressional apportionment. After the cloture vote, the Parliamentarian determined that the amendment was not in order under Senate rules.

In coordination with our allies among the Census Project, MRA rallied opposition to the Vitter amendment among MRA and AAPOR members, numerous of whom contacted their senators on the issue.

WHY MRA OPPOSED THE AMENDMENT: Eight former Census directors urged lawmakers not "to place a decade of careful and demanding preparations at risk" by adding new questions only months before the start of the decennial count. Appointed during both Republican and Democratic administrations, the directors said that changing the census form now would entail redesigning and reformatting questionnaires, language assistance guides, and related materials; revising instructions and training manuals for census takers; rebuilding data capture and processing software; and overhauling the $400 billion communications campaign. The cost of such a "massive revision," the former agency heads warned, is "almost incalculable." Adding untested questions to the 2010 Census "would put the accuracy of the enumeration in all communities at risk and would likely delay the start of the census and all subsequent activities," the directors wrote in a statement issued last week.

Federal law (13 U.S.C. §141(f)) requires the Census Bureau to submit to Congress the topics and actual questions it plans to include in the Census, three and two years, respectively, before Census Day. No member of Congress objected to the content before the Census Bureau finalized the 2010 forms for printing.

The U.S. Government Accountability Office (GAO) also has warned about the risk of last minute changes to the Census design, in reports to Congress over the decade. In 2004, GAO highlighted the importance of a "stable environment" in preparing for the Census, to avoid "a repeat of the 2000 Census when disagreement over the Bureau's methodology led to late design changes and additional costs and risks." (Cost and Design Issues Need to be Addressed Soon, GAO-04-37, 1/15/04) In testimony two years later, congressional auditors again cautioned that the Census Bureau must "stay on schedule, as the Census is conducted against a backdrop of immutable deadlines and an elaborate chain of interrelated pre- and post-Census Day activities are predicated upon those dates. ... As Census Day approaches, the tolerance for any operational delays or changes becomes increasingly small." (Planning and Testing Activities Are Making Progress, GAO-06-465T, 3/1/06)

Despite Sen. Vitter's contention that many states would "lose representation from what they would otherwise have if illegal aliens are counted in congressional apportionment," the U.S. Department of Justice has consistently held that the Constitution requires the census to include "inhabitants of States who are illegal aliens," according to a Sept. 22, 1989, letter from Assistant Attorney General Carol T. Crawford to Sen. Jeff Bingaman (D-NM), then chairman of the Census Oversight Subcommittee. The department's legislative affairs chief was responding to a query from Chairman Bingaman regarding the constitutionality of legislation to exclude undocumented residents from the census for apportionment purposes, introduced on the eve of the 1990 count. "[W]e have found no basis for reversing this position," Ms. Crawford, an appointee in the George H.W. Bush Administration, wrote.