Fighting for You: December 2023 Legislative and Regulatory Update - Articles

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28Dec

Fighting for You: December 2023 Legislative and Regulatory Update

As the insights industry closes out 2023 on the calendar, the Insights Association looked back at our advocacy wins and losses on various consumer data privacy issues, and taxes, while checking in on legislation, regulation, and laws at the state and federal level on privacy, taxes, the independent contractor status of research subjects, and artificial intelligence.

2023: The Year in Review

  • The insights industry faced comprehensive consumer data privacy legislation in 2023 in dozens of states, with 10 states' bills ending up in law and 10 states' bills defeated or deferred.
  • The U.S. insights industry was able to avoid new tax laws specifically aimed at our industry in 2023.
  • Many in the insights industry are considered “data brokers” by certain state laws and legislation. In 2023, Texas and Oregon passed new laws regulating them and California added a challenging new wrinkle to its law, while we were able to hold off legislation in two other states.

Consumer privacy and data security

At the federal level in December:

  • The Federal Communications Commission (FCC) has revived “net neutrality” rules, potentially including tough privacy rules to broadband Internet service providers (ISPs), which would dramatically expand another sectoral privacy law instead of advancing the comprehensive federal privacy legislation sought by the Insights Association.
  • The Shielding Children's Retinas from Egregious Exposure on the Net Act (SCREEN Act) would require covered platforms online to verify children’s ages and restrict their access.
  • The Clean Slate for Kids Online Act would grant kids a right to delete their personal data and adults a right to delete data collected from them when they were kids, adding an online eraser requirement to the Children’s Online Privacy Protection Act (COPPA).

And at the state level:

  • The Oregon Division of Financial Regulation is already accepting registrations from “data brokers,” with Oregon’s new law coming into effect January 1, 2024.
  • The Maine Data Privacy and Protection Act is comprehensive privacy legislation, modeled on the federal legislation that passed out of a U.S. House committee last summer, that would be enforced by private lawsuits.

Tax

IA looked at several tax bills in New York this month, including a pair that would impose an escalating excise tax on the collection of consumer data by for-profit companies, and another that would levy a complicated tax on many insights companies that benefit from New York consumers’ data (while also creating a powerful new data privacy regulatory agency with minimal guidelines or guardrails).

Meanwhile, in Congress, the Lowering Broadband Costs for Consumers Act would expand Universal Service Fund (USF) programs and extend USF contribution requirements (a tax on telecommunications services) to the biggest Internet users, driving up costs for everyone.

Research subjects = independent contractors

The Federal Trade Commission (FTC) and U.S. Department of Labor are working together to crack down on independent contractor status protections, which could be problematic for the insights industry's ability to treat research subjects as anything but employees.

In Congress, IA looked at legislation that would likely coerce states to amend their unemployment insurance laws to adopt an ABC test for employment status, making it dramatically harder to treat research subjects as independent contractors when receiving incentives for participation in market research studies: the Unemployment Insurance Modernization and Recession Readiness Act.

In New York, the governor signed the Freelance Isn’t Free Act into law, adding new paperwork requirements and extensive liability for the use of participant incentives for some of the most highly compensated research subjects.

Artificial intelligence

A pair of Congressmen on the House Energy and Commerce Committee recently made clear that, “to ensure America leads in developing standards and deploying” artificial intelligence, a “critical first step… is passing a national data privacy standard."

On the industry side, IA has been talking with leaders at market research agencies and corporate insights departments about the current and future use of AI in our work. In response, we wrote about what associations are doing in the AI area, where they stand on AI and synthetic data, government regulation that is in the works, and current legal concerns with generative AI.

Closing out a great year of service to IA’s members and sponsors

As we ring in the new year, we express our gratitude for the continued support of the members and sponsors of the Insights Association, without which we could not advocate for and defend the U.S. insights industry.

We urge you to join us at our next General Counsel and Privacy Officer Forum on January 19, 2024 at 1:30 p.m. Eastern. It will feature candid discussion with peers and experts of legal, privacy, data security, and compliance issues facing your insights organization. Counsels and privacy, data security, and compliance staff for company and department members of the Insights Association are invited to participate, at no cost. The Forum is a benefit exclusive to Insights Association company/department members. These meetings are off the record and not recorded. Register today.

Just like last year, we remain available to answer your questions on legislative/regulatory/legal issues. Please stay in touch!

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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