- Data Storage and Disclosure
- Identity Theft
- Number Portability
- Selling of Telephone Records
- Pharmaceutical Marketing
- Do Not Call
Data Storage and Disclosure
Congress – The Global Online Freedom Act (H.R. 275) would prohibit U.S. businesses from locating any data containing personally identifiable information (PII) within an “Internet-restricting country.” “Locating” includes “computer storage or processing by facilities of a remote computing service, ” “electronic storage by any electronic or computer server or facility of an electronic communications system,” or similar storage modes. H.R. 275 would also prohibit U.S. businesses from providing PII “to any foreign official of any Internet-restricting country”, except for legitimate law enforcement purposes. Violations could result in civil and criminal penalties, as well as private rights of action in U.S. courts, “without regard to the citizenship of the parties.” In addition to businesses being held liable, every “officer, director, employee, agent, or stockholder” of the businesses could be subject to penalties, and fines levied on individuals may not be paid, either directly or indirectly, by the business itself. Because of the broad scope of H.R. 275, it is not likely to be acted upon, but CMOR will be promulgating best practices for international data storage and retention in the near future in order to protect the profession from this kind of legislation and potential legal jeopardy.
Massachusetts has signed H.B. 4114 into law. The law requires notification to consumers affected by a security breach, allows consumers to freeze their credit reports, and creates guidelines for data retention and disposal of records with personal information. The new law applies to anyone (including business entities) that may be impacted by a security breach, including the survey research profession.
Texas (H.B. 460) and Nevada (A.B. 428) have also signed identity theft legislation into law. Both new laws prohibit a person from obtaining personally identifiable information of a deceased person or without prior consent, with the intent to defraud or harm another. There are no negative implications for the Survey and Opinion Research Profession since the laws expressly require the intent to harm or defraud (actions that are not inherent to the survey research profession).
Congress – Four more bills in Congress would attempt to combat fraud and identity theft using Social Security numbers (SSNs). The Identity Theft and Timely Reporting Act (H.R. 336) would require monthly updates of the Social Security Administration’s “Death Master List” to consumer credit reporting agencies, and require them to include fraud alerts in the file of each consumer who appears in that list. The Identity Theft Notification Act (H.R. 136) would require the Commissioner of Social Security to notify individuals and appropriate authorities of evidence of misuse of individuals’ SSNs. The Identity Theft Protection Act (H.R. 220) would prohibit using a SSN except for specific Social Security and tax purposes, and strictly limit the disclosure of SSNs to and from government agencies. Finally, H.R. 3128 would study the feasibility of using military identification numbers in place of SSNs to identify members of the Armed Forces. These four bills pose no negative implications for the Survey and Opinion Research Profession. For more information on SSNs and identity theft, see the July and August Legislative Updates.
Congress – Congress also introduced several other bills regarding credit reports and credit freezes. These are: The Consumer ID Protection and Security Act (S. 806); The Credit Agencies Identity Theft Responsibilities Act (H.R. 2568); and The Credit Monitoring Clarification Act (H.R. 2885). None of the bills would have a negative impact on the Profession.
Oregon passed S.B. 863 into law, which prohibits the use of an automatic dialing and announcing device that does not disconnect within 10 seconds after a call has been terminated. The law also prohibits use of an automatic dialing and announcing device to dial “fire protection, law enforcement, or other emergency agencies, hospitals and health care facilities and subscribers whose numbers are compiled on an opt-out list.” The law applies to all persons and entities that utilize “automatic dialing and announcing devices,” defined as “an automated device that selects and dials telephone numbers and that, working alone or in conjunction with another device, disseminates a prerecorded or synthesized voice message to the telephone number called.” This definition includes uses in survey and opinion research.
Congress – The Senate Commerce Committee passed the Same Number Act (S. 1769) on July 19, 2007. The Act would direct the Federal Communications Commission (FCC) to expand existing local telephone number “portability” rules to all forms of voice services, including wireless, cable, voice over Internet protocol (VOIP), or traditional land line. FCC regulations finalized in 2004 (pursuant to the 1996 Telecommunications Act) require traditional phone companies to allow customers to keep, or “port,” their phone numbers when switching carriers, including to wireless providers. S. 1769 would also help deal with portability disputes between carriers, shortening delays for consumers. This legislation could lead to more headaches for the Survey and Opinion Research Profession in trying to comply with the restrictions on using autodialers to contact cellular phones in the Telephone Consumer Protection Act (TCPA). It might even lead the FCC to expand the restrictions to VOIP and cable phone lines. CMOR will be following this issue closely and sharing the concerns of the Profession with the FCC.
Selling of Telephone Records
North Carolina has passed into law the Telephone Records Privacy Protection Act, S.B. 1058, which prohibits obtaining, selling, or soliciting telephone records through fraud or without prior authorization from the customer who owns the telephone record.
Washington D.C. has finalized regulations implementing a pharmaceutical marketing annual reporting law. The regulations apply to, “Each manufacturer or labeler of prescription drugs that are directly or indirectly distributed in the District that employs, directs, or utilizes marketing representatives in the District ” of Columbia. “Marketing representatives” in this case includes survey and opinion researchers involved in studies of physicians and hospitals. The law does not apply to researchers outside of D.C.. Survey researchers can still conduct research with D.C. health care professionals and entities and not be impacted by the new law, by using services and offices outside of the city limits. The Annual Report requires the reporting of all expenses associated with advertising, marketing and direct promotion of prescription drugs as they pertain to District residents over $25.00. Survey researchers located in the District of Columbia must reveal: the name of the manufacturer or labeler, date of payment of gift, name of recipient, type of recipient (e.g. clinic, doctor, hospital, pharmacist, university, other prescriber, benefits manager, health plan, nursing facility, psychiatric hospital, or other healthcare provider) credentials of recipient, nature of payment, primary purpose of payment and monetary value of payment.
CMOR will be meeting with the DC Department of Health and Human Services to discuss this matter, in order to ensure that the ultimate definition of disclosed information does not include any proprietary information or PII. Still, the impact of this new regulation is minimal, segmented only to a small portion, if any, of researchers that conduct pharmaceutical survey and opinion research in the District of Columbia.
Congress – The Drug and Medical Device Company Gift Disclosure Act (H.R. 3023) would require that drug and medical device manufacturers, distributors and packers to annually disclose to the public, through an FDA website, “ the value, nature and purpose of any… gift provided… to any covered health entity… in connection with detailing, promotional, or other marketing activities.” “Covered health entity” includes “any physician, nurse, therapist, hospital, nursing home, pharmacist, health benefit plan administrator ” or other entities that prescribe and dispense drugs. “Gift” includes “ any gift, fee, payment, subsidy, amenity, object, service, or other economic benefit ” of $50 or more. Although the legislation itself does not detail what information should be included in such public disclosures, the sponsor has made it clear in meetings with CMOR that he intends they include identifying information on doctors and other healthcare providers, so consumers can search on the web to easily discover who has been giving gifts to their providers, when and how much. CMOR is very concerned about H.R. 3023, both for its scope and its possibility of action (since two major Democratic leaders are co-sponsors). CMOR will be providing the sponsor with more extensive information in order to the value in protecting the interests of the Survey and Opinion Research Profession.
Do Not Call
Texas has passed H.B. 143 into law. The new law includes text and graphic (including image) transmissions in the application of the Texas no-call list. The no-call list applies to solicitations and thus has no negative implications for the Survey and Opinion Research Profession.
Congress – The Senate Commerce Committee approved S. 781 on August 2, legislation to reauthorize the national Do Not Call Registry and make the funding mechanism permanent.
Although witnesses at a hearing on the bill on August 1 raised concerns about the number of inaccurate and irrelevant numbers on the Registry, it is unclear that the Federal Trade Commission intends to try to clean them up or that this legislation will encourage them to do so. Since legitimate survey and opinion research is outside the scope of (and is implicitly exempt from) the national Do Not Call Registry, this legislation would have no negative impact on the Profession.