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Since our last Fighting for You, the Insights Association has been charging full-steam into debates over consumer privacy and data security at the state, federal and trans-national levels; opposing a new project at the Census Bureau that would compete directly against the insights industry; scrutinizing Congressional legislation and possible Securities and Exchange Commission regulation that could treat research subjects like employees, instead of independent contractors; and advocating against new sales taxes on insights services in Kentucky and Indiana.

(The long hiatus was due to the building and launch of IA’s new website. Thousands of articles remain to be imported, so if you’re having trouble finding specific advocacy/compliance content, please get in touch.)

State consumer privacy and data security

The insights industry has faced a variety of state comprehensive consumer data privacy legislation so far in 2022, with one such bill ending up in law and others defeated in 17 other states, including Florida (H.B. 9 and S.B. 1864), Indiana, IowaMarylandWashington and Wisconsin.

The Insights Association generally opposes comprehensive state privacy bills in favor of a federal privacy law (something we’re pursuing with Privacy for America), but we’re still concerned about the details of state bills to the extent that we can try to improve them.

The one bill that made it into law so far this year, the Utah Privacy Act, was signed on March 24, 2022. It will take effect in 2024.

Meanwhile, IA has also been focusing on other comprehensive bills that are still kicking, such as:

  • Connecticut S.B. 6, comprehensive privacy legislation modeled on Colorado’s law that would provide the usual set of consumer privacy rights and data controller/processor responsibilities; and
  • The Oklahoma Computer Data Privacy Act, which unlike other such comprehensive privacy bills would require a consumer’s opt in for the sale of a consumer's personal information to third parties, and opt in for the further sale of it by third parties. The bill has passed the state house and awaits senate action.
     

On the data broker regulation front, which often ropes in (and unfairly impugns) insights providers, IA opposed Oregon H.B. 4017which died in committee, and Delaware H.B. 262.

Some other state legislation of interest the past few months included:

Since California never sleeps on tinkering with the CCPA/CPRA and related policy areas, we’ve been eying the following bills in California recently (among many others):

  • The California Age-Appropriate Design Code Act, which would restrict the creation of goods, services or product features likely to be accessed by children and restrict collection or use of children's data;
  • A.B. 2486, which would create a new office aimed at protecting minors online;
  • S.B. 1390, legislation that would prohibit social media platforms from amplifying harmful user content to other users;
  • The Platform Accountability and Transparency Act, legislation that would establish a new regulatory body for certain online platforms to oversee academic research of the platforms and require disclosure of a lot of information about their operations; and
  • Four bills that would extend the exemption in the California Privacy Rights Act (CPRA) for business-to-business and employee data.

Sadly, the California Privacy Protection Agency (CPPA), the new body tasked with issuing regulations to implement the California Privacy Rights Act (CPRA) and enforce it, appears prepared to leave businesses without compliance guidance in time to prepare for the law’s effective date.

At least Colorado is trying to keep on schedule. As the Colorado Attorney General prepares regulations to implement the state’s 2021 comprehensive privacy law, the Colorado Privacy Act, his office has sought informal comments from the public on 16 specific points of interest.

Privacy at the federal level

President Biden’s State of the Union address briefly touched upon consumer data privacy issues; even such small mentions can raise interest in DC.

IA also considered the privacy views of Alvaro Bedoya, the remaining Administration nominee for commissioner at the Federal Trade Commission (FTC). The agency is a top battleground for privacy issues, most recently including a petition urging restrictions on so-called “surveillance advertising.” The proposed dramatic expansion of FTC privacy regulation, with loose discussion of data collection and sharing, could present potential problems for the insights industry down the road.

Further, IA looked at the Algorithmic Accountability Act, legislation that would require larger companies to conduct impact assessments for bias, effectiveness and other factors, when using automated decision systems to make critical decisions.

Finally, a new law, the Cyber Incident Reporting for Critical Infrastructure Act of 2022, requires many companies to report to the U.S. Department of Homeland Security (DHS) within 72 hours of discovering they have been hacked and within 24 hours if they make a ransomware payment.

Trans-national data privacy concerns

In a March 25, 2022 joint statement, the United States and the European Commission claimed that the two sides had "agreed in principle on a new Trans-Atlantic Data Privacy Framework" to replace the U.S.-EU Privacy Shield, which was struck down by the European Court of Justice in the Schrems II case in July 2020.

The Insights Association said it was happy to see progress on a new agreement, but expressed concern that (1) how soon an agreement in law will be signed is unclear and (2) activists are already itching to take the issue back to court for yet another challenge. IA also recently urged U.S. Secretary of Commerce Gina Raimondo to waive renewal fees for adherents to the U.S.-EU Privacy Shield Program in the continued absence of a functioning data transfer agreement.

Census

The Insights Association opposes the U.S. Census Bureau's pursuit of the Ask U.S. Panel project, which would compete directly with the insights industry, instead of seeking the services of the industry.

The Bureau has proposed to develop and run the Ask U.S. Panel, “a nationally representative survey panel for tracking public opinion on a variety of topics of interest to numerous federal agencies and their partners, and for conducting experimentation on alternative question wording and methodological approaches.” It may also be used “to collect national-representative rapid-response data, as a complement to that currently collected by the Household Pulse Survey.”

As we explained to the Bureau and the Office of Management and Budget (OMB) on February and March 31, 2022, the Bureau's plan to develop its own probability-based research panel would be duplicative, at best; numerous private sector insights companies and organizations already provide well-established high-quality online panels, including probability-based ones. The plan is also anti-competitive, given these existing panels and the Bureau’s intent to fund an additional insights firm to build one that will be used to compete against the rest of the insights industry using intellectual property funded directly by federal taxpayers.

We’re not alone in our concerns, either.

As our entreaties to the Bureau and OMB have so far gone unheeded, we have turned our attention to Congress and getting their help to stop this project. Any IA members willing to help should contact IA immediately.

Research subjects = independent contractors

  • The Securities and Exchange Commission (SEC) may consider requiring publicly-traded companies to disclose details about their independent contractors, potentially including research subjects receiving incentives.
  • The Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD in the Workplace Act) would expand the protections offered to an employee under specified federal nondiscrimination laws “in the same manner and to the same extent” to an independent contractor. The change would apply potentially to any research subject receiving an incentive for participation in an insights study. The fallout for even screening out a research subject from a study could trigger legal jeopardy in such a scenario.
  • A new report from the U.S. Treasury Department slams the prevalence of "misclassification” of most workers as independent contractors instead of as employees.

Tax

  • Kentucky has a new state sales tax on a wide variety of services, including insights, following the legislature’s override of the governor’s veto. IA had advocated for a carveout for insights from “marketing services” and the removal of the tax on “public opinion and research polling services” several times during the process.
  • Indiana B. 1083 and S.B. 372 are omnibus tax reform legislation that would also expand the state sales and use tax to cover services, including the sale of market research and data analytics services.

Miscellaneous

  • IA submitted testimony in support of Maryland H.B. 1125, legislation that would restrict deceptive political telephone advocacy calls masquerading as legitimate research, commonly referred to as “push polls.”
  • Nebraska L.B. 843, which would have restricted exit polling or opinion polling of users of a “secure ballot drop-box,” has been amended so as to no longer pose a threat.
  • new report from the U.S. Treasury Department concludes that the lack of competition in the labor market results in wage declines between 15 and 25 percent, on average, including the prevalence of restrictive covenants on employees, such as non-compete agreements.

Keeping up the fight for the insights industry

Thank you to all of our members and sponsors who provide the resources the Insights Association needs to defend and advance the insights industry. Our revenues go to public policy advocacy and other ventures that protect and promote the whole industry, and we are the ONLY association fighting for you on all these issues (and more) in the U.S.

If you’ve not yet renewed your IA membership, it is already springtime – what are you waiting for, another comprehensive privacy law, or a sales tax on insights specifically in your state?

We remain available to answer your questions on these and other legislative/regulatory/legal issues.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.

About the Author

Howard Fienberg

Howard Fienberg

Based in Washington, DC, Howard is the Insights Association's lobbyist for the marketing research and data analytics industry, focusing primarily on consumer privacy and data security, the Telephone Consumer Protection Act (TCPA), tort reform, and the funding and integrity of the decennial Census and the American Community Survey (ACS). Howard has more than two decades of public policy experience. Before the Insights Association, he worked in Congress as senior legislative staffer for then-Representatives Christopher Cox (CA-48) and Cliff Stearns (FL-06). He also served more than four years with a science policy think tank, working to improve the understanding of scientific and social research and methodology among journalists and policymakers. Howard is also co-director of The Census Project, a 900+ member coalition in support of a fair and accurate Census and ACS. He has also served previously on the Board of Directors for the National Institute for Lobbying and Ethics and and the Association of Government Relations Professionals. Howard has an MA International Relations from the University of Essex in England and a BA Honors Political Studies from Trent University in Canada, and has obtained the Certified Association Executive (CAE), Professional Lobbying Certificate (PLC) and the Public Policy Certificate (PPC). When not running advocacy for the Insights Association, Howard enjoys hockey, NFL football, sci-fi and horror movies, playing with his dog, and spending time with family and friends.

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