Articles

03Jan

Fighting for You: December 2022 Legislative and Regulatory Update

As we begin a new year, let’s take a quick look back at the insights industry’s successes and challenges covered by the Insights Association in December 2022, including: wins and losses on taxes specifically targeting insights; wins and losses on state privacy bills; last-minute preparations for new state privacy laws; bringing transparency to the Census Bureau’s attempts to compete with our industry; and state and federal legislation impacting our ability to treat research subjects as independent contractors when receiving incentives.

Tax

The insights industry was mostly able to avoid new targeted state tax laws as we worked this year in six states’ battles… but not in Kentucky.

Consumer privacy and data security

If you’ve been putting off preparations for new state comprehensive consumer data privacy laws, time is basically up, as new laws come into effect in 2023 in California, Colorado, Connecticut, Utah, and Virginia. 

While two of those laws were enacted in 2022, the insights industry stared down a variety of comprehensive consumer data privacy bills in dozens of other states

Precise sensitive location data came under greater scrutiny in 2022, particularly after the Dobbs decision at the Supreme Court and concerns about potential government access to such data, such as when a person visits an abortion clinic. However, plenty of other categories would be considered sensitive. The Insights Association is seeking member feedback on how our industry can potentially self-regulate the collection, maintenance and sharing of sensitive location data.  

IA contended with more state privacy bills in December, including:

There was a push in Congress to pass a pair of bills aimed at restricting consumer data privacy for minors before Congress left at the end of December, but it ultimately came up short. 

Elsewhere at the federal level, Sen. Mark Warner (D-VA) circulated a “policy options document” considering healthcare cybersecurity issues, including expanding the reach and restrictions in the Health Insurance Portability and Accountability Act (HIPAA). 

Further, IA looked at more legislation in Congress, including:

  • The ACCESS Act, legislation intended to allow data portability from large online platforms to their competitors; 
  • The Informing Consumers about Smart Devices Act (H.R. 3898, H.R. 4081 and S. 5127), which would require developers of smart devices to disclose any embedded microphones or cameras prior to purchase; 
  • The Adversarial Platform Prevention Act (APP Act), legislation that would restrict or prohibit a lot of software and mobile apps from countries like China and Russia and restrict software operators and providers from disclosing U.S. consumers’ data to such foreign governments. 
  • The SMARTWATCH Data Act, legislation that would require express consent for a “personal consumer device” to transfer or sell consumer health information to “entities whose primary business function is to collect or analyze consumer information for profit.” 
  • The Banning Surveillance Advertising Act, which would prohibit targeted advertising based on “personal information” by “advertising facilitators” and “advertisers,” subject to certain limited exceptions for contextual advertising and some first party advertising activity. 

Census

An omnibus Fiscal Year 2023 appropriations bill, signed into law just before Christmas, included language demanding transparency on the Census Bureau's Ask U.S. Panel project, as requested by the Insights Association. 

“This Census Bureau plan to develop their own probability-based online research panel has never made any fiscal sense,” IA said, “given that multiple private sector insights companies and organizations already offer well-established high-quality online panels, including probability-based ones, and could provide those services to the federal government at a fraction of the cost of this foolhardy project.” The project, IA explained, “clearly violates a common-sense ‘Yellow Pages test’: why would you pay a premium for government to provide a service that could already be easily and affordably purchased in the open market?”

IA had made a last-ditch appeal to Congress on the issue, following a year of testimony and advocacy. 

In other census-related news, we looked at H.R. 7805, legislation that would prohibit citizenship and immigration questions in the decennial headcount. 

Research subjects = independent contractors

  • Pennsylvania H.B. 2810 would add an ABC test to Pennsylvania law for determining whether someone is an employee or independent contractor and thus put Pennsylvania research subjects in danger of being misclassified as employees when receiving incentives for participation in insights studies. 
  • The Worker Flexibility and Choice Act (H.R. 8442) would create a new hybrid category of worker status, separate from independent contractors and employees, which could potentially benefit research subjects receiving incentives. 
  • The Employee Rights Act would make a variety of changes to collective bargaining and union relations, as well as making it easier to treat someone as an independent contractor instead of an employee. 

Your support fuels our charge into the new year

The Insights Association resolves to continue to deliver the defense and advocacy that the insights industry needs and deserves in 2023. The support of all our members and sponsors got us through a grey December and we will need it again this year. IA remains the ONLY association fighting for you on all these issues (and more) across the U.S.

We are always available to answer your questions on these and other legislative/regulatory/legal issues – just reach out to us.

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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