Fighting for You: April 2024 Legislative and Regulatory Update - Articles

Articles

The first full month of spring brought with it a shiny new federal privacy bill, some developments on AI regulation, a tax win in Nebraska, a new federal ban on noncompetes, advances in preventing the government from competing with the insights industry, legislation moving in Minnesota on exit polling and political opinion research, complicated business payment disputes, and some new developments on competitive sourcing of insights services and the Census Household Panel.

Privacy and Data Security

The chairs of the U.S. Senate Commerce Committee (Sen. Maria Cantwell (D-WA) and House Energy & Commerce Committee (Rep. Cathy McMorris Rodgers (R-WA-05) recently shared a new draft comprehensive federal privacy bill, the American Privacy Rights Act (APRA), including some recognition of the importance of market research and audience measurement, preemption of some conflicting state laws, and enforcement provisions that include private lawsuits.

The Insights Association had a mixed reaction to the draft, and is already engaged on Capitol Hill in an effort to make improvements.

IA also looked at the Kids Online Safety Act (KOSA), legislation in the House and Senate that would restrict the design and operations of most for-profit online platforms, including insights ones, if they knowingly interact with minors 16 years of age or younger.

Meanwhile, a bill in California would prohibit certain covered personal data from being made publicly available online (regardless of consent or context) and require businesses that sell any personal information to retain identifying information on their customers, while another California bill would require compliance with opt out preference signals.

Artificial Intelligence (AI)

The Utah Artificial Intelligence Policy Act (S.B. 149) was signed into law, requiring companies and organizations to clearly disclose when someone is “interacting with generative artificial intelligence and not a human.” It also launches a new state program to study the risks of AI, in which participating companies could get licensed and receive temporary regulatory protections. Finally, the new law adds “synthetic data” to the definition of “deidentified data” in Utah’s comprehensive state privacy law (which came into effect at the end of 2023).

The Attorney General of Massachusetts, meanwhile, shared an advisory on the application of Massachusetts laws to AI developers and users.

In California:

And in Vermont, legislation would require significant risk mitigation, outside evaluation, and impact assessments for developers of generative AI systems.

Tax

  • Nebraska legislation that would add a new tax on advertising, including ad measurement, passed out of committee and its first floor reading, but IA was happy to report that the bills have been defeated.
  • Another bill, in California, would tax the gross revenue from digital advertising services, but not directly impact ad measurement.

Competitive Sourcing

The Census Bureau continues to pursue the development of their own online research panel to compete against the insights industry, the Census Household Panel. Congress raised concerns again in the FY24 funding law about the project. And the Insights Association has turned to broader efforts to restore competitive sourcing (the “yellow pages test” for provision of goods and services by the federal government – if you can find them on Main Street, you should try to affordably procure them from there).

Human Resources

A new rule from the Federal Trade Commission (FTC) prohibits almost all non-compete agreements in employment contracts. The Insights Association expressed appreciation for the agency heeding some of the industry’s concerns, such as regarding senior executives, despite the divisive result.

Exit Polls and Opinion Polling

A pair of Minnesota bills would expand requirements and restrictions on exit polling at Minnesota voting locations, while adding a new carveout for opinion research from election law.

Payment disputes

IA has shared a brief guide exclusively for IA company and corporate department members navigating payment disputes with clients and suppliers/vendors. It concludes with some model language regarding attorneys’ fees.

This company/department-member-exclusive is only available when logged into the website.

Insights Under Fire: Industry Advocacy Can’t Succeed Without Your Support

Given all the challenges and opportunities in advocacy for the insights industry in the U.S., including a potential federal privacy law conducive to market research and audience measurement, the Insights Association cannot tackle them effectively without your continued membership and sponsorship.

Don’t forget that IA will host the next General Counsel and Privacy Officer Forum on May 17 at 1:30 p.m. Eastern, a candid discussion with peers and experts of legal, privacy, data security and compliance issues facing your organization. The Forum is a benefit exclusive to IA company and corporate department members. These online meetings are off-the-record and are not recorded, to help foster more open discussion.

We remain available to answer your questions and concerns on legislative/regulatory/legal issues. Please keep in contact.

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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