In hopes of securing 2016 party platforms focused positively on regulatory reform and digital trade, the Marketing Research Association (MRA) sent correspondence to both the Democratic National Committee (DNC) and the Republican National Committee (RNC) today.

See pdfs of the Democratic and Republican letters; the full text of both letters is below. MRA talked with the 2012 GOP and Democratic party platform committees in 2012, but we felt it important to weigh in more formally this cycle.

MRA Letter to the Democratic National Committee

Dear Chair Wasserman Schultz,

On behalf of the Marketing Research Association (MRA),[1] I urge you to consider our key concerns regarding digital trade and regulatory reform as you develop the 2016 platform for the Democratic Party.

Digital Trade

The 2012 Democratic party platform[2] dedicated significant attention to international trade and its importance to American prosperity, noting that “if the playing field is level, Americans will be able to compete against every other country on Earth" and emphasizing the need to ensure “that other countries play by the same rules.” The platform also commended the Obama Administration’s dedication to promoting “free and fair trade” and work “to ensure that American businesses and workers are competing on an even footing with our international competitors.”

Two growing threats that are skewing the international playing field are data localization laws, which directly or indirectly require U.S. companies to process and maintain data within a given country, and laws like the European Union’s (EU) General Data Protection Regulation, which attempt to force U.S. companies to adopt significantly more restrictive foreign data privacy laws.

These laws and regulations have been enacted in many countries.[3] Some are veiled behind supposed concerns about U.S. national security surveillance and some are driven by the simpler government desires of being able to access their own citizens’ data, but President Obama has called out the EU for digital protectionism.[4] Local servers lead to a greater semblance of local control and generally require local workers, payment of local taxes, and submission to other local regulations.

Meanwhile, “harmonization” of U.S. law to a foreign standard may not make the most sense economically, as innovative data businesses generally develop and grow in the US, and our approach to data privacy may be a key factor in our competitive advantage.[5] With the demise last year of the U.S.-EU Safe Harbor for data transfer and the EU’s faltering attempts to agree to a replacement deal (known as the Privacy Shield), trans-Atlantic data sharing hangs in the balance.

It is time to act. We urge that the 2016 Democratic party platform focus attention on the importance of digital trade, and the pursuit of trade deals that remove regulatory barriers to the free flow of data, which could boost U.S. GDP.[6]

Updating and Modernizing Regulations

The 2012 Democratic platform asserted that we need to "out-innovate" the world and one key to success is to modernize outdated laws and pursue “efficient and effective regulations” to provide “common sense safeguards to protect the American people.”[7] We have a few specific ways to advance this agenda which we would like to see in the 2016 party platform

The Telephone Consumer Protection Act (TCPA)

The TCPA is a clear example of what the 2012 platform meant when stating that “there’s no question that some regulations are outdated, unnecessary, or too costly."[8] The Federal Communications Commission’s (FCC) 2015 TCPA rules have made it exceptionally challenging to place a simple phone call without facing a potential class action lawsuit.[9] According to FCC Commissioner Jessica Rosenworcel, “This is a law from 1991… we are taking all sort of technologies that didn’t exist in the early nineties and trying to figure out how to fit them into this old law."[10] The TCPA requires express prior consent to use an autodialer to call someone on their cell phone, and at a time when 63% of American households mostly or only reachable on their cell phones,[11] FCC Commissioner Ajit Pai said that the FCC has “perverted the definition of an autodialer to include everything more sophisticated than a rotary phone.”[12]

The rising tide of TCPA class action lawsuits is hurting the American economy without providing much benefit to consumers: the average consumer recovery in a settlement is $4.12, while lawyers average $2.4 million.[13] It is past time to reform the TCPA to focus on deterring and punishing illegal and abusive telemarketers, as Congress originally intended,[14] instead of harming legitimate research businesses.[15]

Consumer Data Security

Although the 2012 platform had a subsection on cybersecurity, it unfortunately did not touch on consumer data security. The 2016 platform should include a push for a carefully crafted national standard for consumer data security and breach notification. It should be limited to cover only personal information that could be subject to criminal abuse (such as identity theft), avoid granting the Federal Trade Commission (FTC) extraordinary rulemaking powers to expand that definition,[16] provide an exemption for encrypted or deidentified data, cover both for-profit and non-profit entities, preempt the conflicting patchwork of state data security laws, and prohibit private lawsuits.

Consumer Data Privacy

MRA favors a baseline national consumer privacy law, but for now, a continued privacy regime based at the FTC, with their authority (under Section 5 of the FTC Act) to vigorously police unfair or deceptive acts or practices, makes the most sense because it focuses on preventing and punishing tangible harms against consumers. If we take the 2012 Democratic party platform seriously when it said "Democrats know that the United States must preserve our leadership in the Internet economy,” then the FCC’s recent proposal to regulate broadband privacy should be subject to the same limitations as the FTC Act (or, preferably, online privacy authority should revert back to the FTC).[17] In the case of emerging technologies, the Obama Administration’s multistakeholder process approach (applied so far to mobile apps, facial recognition and drones) is a reasonable method to advance industry’s privacy best practices, with the NTIA playing an important role as an impartial coordinator.

Most importantly, the Democratic platform should focus on data privacy regulation of the purpose/use of consumer data, not its type or existence. Data collected, used and shared strictly for bona fide research[18] (which involves data about individuals only for the purpose of understanding broader population segments and demographic groups) should be held to a different standard than data captured for commercial use, for purely transactional use, for determining a consumer’s eligibility for health insurance, credit or a mortgage, or for prosecuting crimes or preventing terrorism.

Conclusion

Again, we urge the 2016 Democratic Party Platform Committee to focus on breaking down foreign digital trade barriers, and to modernize regulations regarding the Telephone Consumer Protection Act, consumer data security, and consumer data privacy. Thank you for your attention to these important issues.


[1] MRA, a non-profit national membership association, represents the survey, opinion and marketing research profession and works to improve research science, methods, participation and quality.

[3] Testimony of Robert D. Atkinson, Information Technology and Innovation Foundation on "International Data Flows" at the House Subcommittee on Courts, Intellectual Property and the Internet. November 3, 2015. http://www2.itif.org/2015-atkinson-international-data-flows.pdf?_ga=1.4629043.1886866732.1462063876

[4] President Barack Obama: “Sometimes the European response here is more commercially driven than anything else. …sometimes their vendors — their service providers who, you know, can’t compete with ours — are essentially trying to set up some roadblocks for our companies to operate effectively there.” http://www.insightsassocation.org/article/obama-calls-out-european-data-protection-plain-protectionism

[5] “Corporate privacy officers discuss global compliance, trans-Atlantic competition, a comprehensive privacy law, and the US-EU Safe Harbor.” March 7, 2013. http://www.insightsassocation.org/article/corporate-privacy-officers-discuss-global-compliance-trans-atlantic-competition

[6] According to estimates from the International Trade Commission (ITC), digital trade increased annual American GDP by $517-$710 billion in 2011 (3.4 to 4.8 percent) and helped create 2.4 million jobs. The ITC also estimated in 2014 that lessening restrictions on cross-border data flows would increase our GDP by 0.1 to 0.3 percent. http://www.usitc.gov/publications/332/pub4485.pdf

[10] At a House Communications and Technology Subcommittee hearing on March 22.

[11] Combining the cell phone only and cell phone mostly household numbers from: Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, July to December 2015. National Center for Health Statistics. May 2016.

[12] House hearing, March 22.

[13] "Sorry, Wrong Number, Now Pay Up." By Adonis Hoffman. The Wall Street Journal. June 15, 2015. http://www.wsj.com/articles/sorry-wrong-number-now-pay-up-1434409610

[14] Original sponsor Senator Hollings said the TCPA was about “telemarketing calls placed to the home” (137 Cong. Rec. S9874, daily ed. July 11, 1991) and Senator Pressler said the TCPA was “for cost-effective protection of consumers” against “this invasion of their privacy by unrestricted telemarketing.” (137 Cong. Rec. 518317, daily ed. November 26, 1991)

[16] The agency’s track record of public statements and enforcement actions indicate that the FTC considers just about any piece of information to be potentially personally identifiable. For example and elucidation, see the MRA-supported amendments to the 2011 SAFE Data Act during markup in the House Commerce Subcommittee, for example: http://www.insightsassocation.org/article/mras-amendments-approved-house-subcommittee-passing-safe-data-act

[17] See MRA’s comments on the FCC’s Broadband Privacy NPRM, May 27, 2016. http://www.insightsassocation.org/article/fcc-broadband-privacy-notice-proposed-rulemaking-mra-comments

[18] The term bona fide survey, opinion and market research, as defined in the 2012 Research Fairness Act (H.R. 5915) - http://www.insightsassocation.org/article/hr-5915-research-fairness-act-2012 - and in New Hampshire’s 2014 push poll law – http://www.insightsassocation.org/issues-policies/best-practice/new-hampshire-push-poll-law - means the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences or behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior.


MRA Letter to the Republican National Committee

Dear Chairman Priebus,

On behalf of the Marketing Research Association (MRA),[21] I write to urge you to consider our key concerns regarding digital trade and regulatory reform as you develop the 2016 platform for the Republican Party.

Trade

The 2012 platform emphasized the importance of international trade to American prosperity,[22] and, particularly aligned with the interests of the presumptive GOP presidential nominee, it also pointed out that "some governments have used a variety of unfair means to limit American access to their markets.” A growing manifestation of those market access barriers are data localization laws, which directly or indirectly require U.S. companies to process and maintain data within a given country, and laws like the European Union’s (EU) General Data Protection Regulation, which attempt to force U.S. companies to adopt significantly more restrictive foreign data privacy laws.

These laws and regulations have been enacted in many countries.[23] Some are veiled behind supposed concerns about U.S. government surveillance and some are driven by the simpler government desires of being able to access their own citizens’ data. However, even President Obama has called out the EU for digital protectionism.[24] Local servers lead to a greater semblance of local control. They also generally require local workers, payment of local taxes, and submission to other local regulations.

Meanwhile, “harmonization” of U.S. law to a foreign standard may not make the most sense economically, as innovative data businesses generally develop and grow in the US, and our approach to data privacy may be a key factor in our competitive advantage.[25] With the demise last year of the U.S.-EU Safe Harbor for data transfer and the EU’s faltering attempts to agree to a replacement deal (known as the Privacy Shield), trans-Atlantic data sharing hangs in the balance.

It is time to act. We urge that the 2016 GOP platform focus attention on the particular importance of digital trade, and the pursuit of trade deals that remove regulatory barriers to the free flow of data, which could boost U.S. GDP.[26]

Regulatory reform

While the 2012 platform discussed reforming the federal regulatory state[27] and fostering technological innovation,[28] we urge the Republican Party to get more specific in its promises to the American people on this important approach to protecting consumers and unleashing the U.S. economy.

The Telephone Consumer Protection Act (TCPA)

The Federal Communications Commission’s (FCC) 2015 TCPA rules have made it exceptionally challenging to place a simple phone call without facing a potential class action lawsuit.[29] According to FCC Commissioner Jessica Rosenworcel, “This is a law from 1991… we are taking all sort of technologies that didn’t exist in the early nineties and trying to figure out how to fit them into this old law."[30] The TCPA requires express prior consent to use an autodialer to call someone on their cell phone, and at a time when 63% of American households mostly or only reachable on their cell phones,[31] FCC Commissioner Ajit Pai said that the FCC has “perverted the definition of an autodialer to include everything more sophisticated than a rotary phone.”[32]

The rising tide of class action lawsuits is hurting the American economy without providing much benefit to consumers: the average consumer recovery in a settlement is $4.12, while lawyers average $2.4 million.[33] It is past time to reform the TCPA to focus on deterring and punishing illegal and abusive telemarketers, as Congress originally intended,[34] instead of harming legitimate research businesses.[35]

Consumer Data Security

The platform should include a push for a carefully crafted national standard for consumer data security and breach notification. It should be limited to cover only personal information that could be subject to criminal abuse (such as identity theft), avoid granting the Federal Trade Commission (FTC) extraordinary rulemaking powers to expand that definition,[36] provide an exemption for encrypted or deidentified data, cover both for-profit and non-profit entities, preempt the conflicting patchwork of state data security laws, and prohibit private lawsuits.

Consumer Data Privacy

MRA favors a baseline national consumer privacy law, but for now, a continued privacy regime based at the FTC, with their authority (under Section 5 of the FTC Act) to vigorously police unfair or deceptive acts or practices, makes the most sense because it focuses on preventing and punishing tangible harms against consumers. The FCC’s recent proposal to regulate broadband privacy should be subject to the same limitations as the FTC Act (or, preferably, online privacy authority should revert back to the FTC).[37] In the case of emerging technologies, the Obama Administration’s multistakeholder process approach (applied so far to mobile apps, facial recognition and drones) is a reasonable method to advance industry’s privacy best practices, with the NTIA playing an important role as an impartial coordinator.

Most importantly, the GOP platform should focus on data privacy regulation of the purpose/use of consumer data, not its type or existence. Data collected, used and shared strictly for bona fide research[38] (which involves data about individuals only for the purpose of understanding broader population segments and demographic groups) should be held to a different standard than data captured for commercial use, for purely transactional use, for determining a consumer’s eligibility for health insurance, credit or a mortgage, or for prosecuting crimes or preventing terrorism.

Conclusion

Again, we urge the 2016 Republican Party Platform Committee to focus on breaking down foreign digital trade barriers, and advance regulatory reform regarding the TCPA, consumer data security, and consumer data privacy. Thank you for your attention to these important issues.


[21] MRA, a non-profit national membership association, represents the survey, opinion and marketing research profession and works to improve research science, methods, participation and quality.

[22] “International trade is crucial for our economy. It means more American jobs, higher wages, and a better standard of living.” Page 6. https://prod-static-ngop-pbl.s3.amazonaws.com/docs/2012GOPPlatform.pdf

[23] Testimony of Robert D. Atkinson, Information Technology and Innovation Foundation on "International Data Flows" at the House Subcommittee on Courts, Intellectual Property and the Internet. November 3, 2015. http://www2.itif.org/2015-atkinson-international-data-flows.pdf?_ga=1.4629043.1886866732.1462063876

[24] President Barack Obama: “Sometimes the European response here is more commercially driven than anything else. …sometimes their vendors — their service providers who, you know, can’t compete with ours — are essentially trying to set up some roadblocks for our companies to operate effectively there.” http://www.insightsassocation.org/article/obama-calls-out-european-data-protection-plain-protectionism

[25] “Corporate privacy officers discuss global compliance, trans-Atlantic competition, a comprehensive privacy law, and the US-EU Safe Harbor.” March 7, 2013. http://www.insightsassocation.org/article/corporate-privacy-officers-discuss-global-compliance-trans-atlantic-competition

[26] According to estimates from the International Trade Commission (ITC), digital trade increased annual American GDP by $517-$710 billion in 2011 (3.4 to 4.8 percent) and helped create 2.4 million jobs. The ITC also estimated in 2014 that lessening restrictions on cross-border data flows would increase our GDP by 0.1 to 0.3 percent. http://www.usitc.gov/publications/332/pub4485.pdf

[27] "Excessive taxation and regulation impede economic development…. Their adherence to the Constitution stands in stark contrast to the antipathy toward the Constitution demonstrated by the current Administration ... illegal actions by regulatory agencies… openly and notoriously displaying contempt for Congress, the Judiciary, and the Constitutional prerogatives of the individual States… ” P. 9. https://prod-static-ngop-pbl.s3.amazonaws.com/docs/2012GOPPlatform.pdf

[28] “We will remove regulatory barriers that protect outdated technologies and business plans from innovation and competition, while preventing legacy regulation from interfering with new and disruptive technologies” P. 23. https://prod-static-ngop-pbl.s3.amazonaws.com/docs/2012GOPPlatform.pdf

[30] At a House Communications and Technology Subcommittee hearing on March 22.

[31] Combining the cell phone only and cell phone mostly household numbers from: Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, July to December 2015. National Center for Health Statistics. May 2016.

[32] House hearing, March 22.

[33] "Sorry, Wrong Number, Now Pay Up." By Adonis Hoffman. The Wall Street Journal. June 15, 2015. http://www.wsj.com/articles/sorry-wrong-number-now-pay-up-1434409610

[34] Original sponsor Senator Hollings said the TCPA was about “telemarketing calls placed to the home” (137 Cong. Rec. S9874, daily ed. July 11, 1991) and Senator Pressler said the TCPA was “for cost-effective protection of consumers” against “this invasion of their privacy by unrestricted telemarketing.” (137 Cong. Rec. 518317, daily ed. November 26, 1991)

[36] The agency’s track record of public statements and enforcement actions indicate that the FTC considers just about any piece of information to be potentially personally identifiable. For example and elucidation, see the MRA-supported amendments to the 2011 SAFE Data Act during markup in the House Commerce Subcommittee, for example: http://www.insightsassocation.org/article/mras-amendments-approved-house-subcommittee-passing-safe-data-act

[37] See MRA’s comments on the FCC’s Broadband Privacy NPRM, May 27, 2016. http://www.insightsassocation.org/article/fcc-broadband-privacy-notice-proposed-rulemaking-mra-comments

[38] The term bona fide survey, opinion and market research, as defined in the 2012 Research Fairness Act (H.R. 5915) - http://www.insightsassocation.org/article/hr-5915-research-fairness-act-2012 - and in New Hampshire’s 2014 push poll law – http://www.insightsassocation.org/issues-policies/best-practice/new-hampshire-push-poll-law - means the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences or behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior.