Fighting for You: May 2023 Legislative & Regulatory Update - Articles

Articles

As temperatures rose, so did the threats and opportunities for the insights industry in advocacy during May, ranging from three new comprehensive state privacy laws, advancing regulation of artificial intelligence, compliance concerns with state sales taxes, jousting over the Census Household Panel, restrictions on high-end incentives for research subjects, state legislation to ban non-competes, and a new Maryland law restricting most telephone calls for research purposes.

Consumer privacy and data security

The Insights Association provided analysis of three new comprehensive state privacy laws this month (with analyses of Tennessee, Florida, and Montana coming soon):

  • Iowa's new comprehensive privacy law is modeled on Utah’s recent law. It will be enforced by the state Attorney General, with penalties capped at $7,500 per violation and a 90-day right to cure. Iowa’s new law is potentially more friendly to the insights industry than most.
  • Indiana’s new law, S.B. 5, is modeled on the laws in Colorado, Connecticut and Virginia. It will be enforced by the state Attorney General, with a 30-day right to cure (that does not sunset) and up to $7,500 in penalties per violation.
  • The Washington My Health My Data Act, a comprehensive opt in privacy law, is focused on consumer health information but written quite broadly. It will be enforced by the state Attorney General and private lawsuits.

With the rapid spread of these laws, maintenance of privacy and data security has become an even more fundamental currency for market researchers. IA’s outside counsel Stuart Pardau offered five general observations that place compliance in a broader and less scary perspective.

This all makes more urgent the need to pass comprehensive preemptive federal privacy legislation. IA succeeded in getting some improvements to such legislation in house committee in summer 2022, and we have a wide range of priority recommendations to improve it if Congress brings it back this year.

Elsewhere in state privacy...

Even as insights professionals grapple with CPRA compliance and newly finalized regulations, the board of California's privacy regulator has tasked its staff to draft a wide variety of new rules to clarify and build out CPRA.

The New York Privacy Act, comprehensive privacy legislation comparable to other recent such laws and enforced by the state Attorney General, is advancing in the legislature.

A bill advancing in Louisiana would restrict access to and use of social media platforms by Louisiana residents under the age of 16, with some violations subject to private litigation.

Artificial intelligence is a hot topic in the insights industry, so it is no shock that legislators and regulators are worried about it, too:

  • Four U.S. federal government agencies warned about discrimination and bias in AI and automated systems – and steps they will take to confront them.
  • The latest White House interest in regulating AI could easily veer into restricting insights organizations’ interactions with research subjects who receive participant incentives.
  • Legislation in Rhode Island would “regulate generative artificial intelligence models, such as ChatGPT, in order to protect the public’s safety, privacy, and intellectual property rights.”

Tax

Many insights services may already be subject to state sales taxes, particularly for SaaS-like services. Stuart Pardau, outside counsel for the Insights Association, explains.

Census

IA continued in May to share our concerns with the Census Household Panel, a program whereby the Census Bureau continues to try to build its own online research panel instead of simply purchasing the service on the open market. We offered a new 1-page position paper and shared testimony at the Senate Appropriations Committee.

Meanwhile, we joined a coalition letter in support of robust funding for the 2030 Census and the American Community Survey (ACS).

Research subjects = independent contractors

The New York Freelance Isn’t Free Act advancing in the legislature would add new paperwork requirements and extensive liability for the use of participant incentives for some of the most highly compensated research subjects.

Human Resources

A bill advancing in New York would ban most non-compete agreements in employment contracts in the state, including some trade secret protections and non-solicitation agreements, with violations punishable by private lawsuits.

Telephone

A new Maryland law, the Stop the Spam Calls Act, will require prior express written consent for many market research or polling phone calls and texts to a Maryland resident or area code, among other requirements and restrictions.

Championing the insights industry

While the heat is on the insights industry, the Insights Association remains on guard as your only advocate across the U.S. Of course, without your full membership and support, none of it could succeed.

Please reach out with any questions on these and other legislative/regulatory/legal issues. We are always here for you.

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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