With American Thanksgiving now in the rearview mirror, let’s look back at the biggest challenges the insights industry tangled with this month, including new privacy rules in California and at the Federal Trade Commission (FTC); some wins, losses and new laws in California; and new federal labor rules that could treat research subjects receiving incentives as if they are employees of research companies.
Consumer privacy and data security
As usual, California has been a mixed bag. We’ve had some wins as legislators tried to amend the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA), along with related privacy and data security-related legislation, but a few losses, too. Thankfully, bills we opposed were (mostly) amended or defeated, and IA has reviewed (for our members) the spate of new laws coming soon. Unfortunately, the CCPA/CPRA exemptions for data concerning employees, job applicants and contractors are coming to an end.
CPRA comes into effect on January 1, 2023, with enforcement starting July 1, but the implementing regulations are not yet completed. The Insights Association shared final thoughts with California’s regulator on rules implementing CPRA, particularly noting that we do not believe that the drafters of the law intended to restrict audience measurement. We also joined with other groups expressing concerns about the quick turnaround between the rules' presumed completion and their enforcement.
Meanwhile, in the nation’s capital, IA and other data-driven industry groups called upon Congress to “pass a national privacy law that protects all Americans,” and urged the FTC to “halt its current rulemaking” on “so-called ‘commercial surveillance’ and ‘lax security practices.’” According to the comments, “[e]very company in America, small and large, is using data to help them solve everyday business decisions and more efficiently deal with economic challenges like inflation and supply chain shortages… Given the critical importance of data to societal welfare and global economic competitiveness, it is imperative that policymakers create an environment of certainty for the business community and consumers alike,” which the FTC’s proposal sadly “fails to provide.”
At the same time, Privacy for America, the coalition IA helped to found to advance a federal privacy law, warned that the “FTC should not cast itself as a quasi-legislature capable of regulating any activity it sees fit without a grounding in its congressionally granted authority. The more prudent path would be for the Commission to refrain from seeking broadly to regulate the entire U.S. data-supported economy while Congress is actively considering a comprehensive, preemptive standard.”
In other legislative news:
- At the federal level, the Data and Algorithm Transparency Agreement (DATA) Act would restrict data collection and sharing by a large internet platform that uses algorithms to suggest content on the platform, with violations subject to private lawsuits; and
- In New Jersey, new legislation would require many insights companies/organizations to publicly register as “data brokers.”
Research subjects = independent contractors
New federal labor rules could mistakenly classify "participants in surveys, focus groups, and other market research activities" as "employees of the research companies," which the Insights Association called "the wrong result and presumably not the intention of the proposal."
Labor and tax law treatment of independent contractor status is an issue of prime importance in the use of incentives for research subjects in the insights industry, as demonstrated in California in 2020-21 (before the Insights Association succeeded in fixing a state law that had required minimum wage for research subjects).
In the background, bicameral bipartisan legislation, the Portable Benefits for Independent Workers Pilot Program Act, would potentially expand the current benefit options available to independent contractor, but also erode the differences between independent contractors and employees.
Finally, a new law took effect in New York City on November 1, requiring disclosure of pay scales in job ads, for both hourly workers and staff on an annual salary.
Giving thanks for our members’ support
Especially at this time of year, the Insights Association is grateful for all our members and sponsors – you provide the resources we require to defend and advance the whole insights industry. IA is the ONLY association fighting for you on all these issues (and more) across the U.S.
We remain available to answer your questions on these and other legislative/regulatory/legal issues. There’s no need to be a turkey – just reach out.
Also, IA company and department members can join our final General Counsel and Privacy Officer Forum of 2022, on December 16 at noon Eastern, for a candid half-hour discussion with peers and experts of legal, privacy, data security and compliance issues facing your insights organization. Instead of presentations, we will have an open floor and Q&A.
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.