Physician Incentives
CT - Governor M. Jodi Rell signed S.B. 428 into law. This legislation includes provisions requiring pharmaceutical and medical device manufacturers to "adopt and implement a code that is consistent with, and minimally contains all of the requirements prescribed in, the Pharmaceutical Research and Manufacturers of America's 'Code on Interaction with Healthcare Professionals' or AdvaMed's 'Code of Ethics on Interactions with Health Care Professionals.'" Unlike S.B. 270, which MRA testified against and helped to defeat, S.B. 428 should have minimal impact on research (since the PhRMA and AdvaMed Codes do not restrict marketing research incentives).

NY - Governor David Paterson (D) signed the budget, S.B. 6608, into law. The Governor's original proposed budget would have included proposals for new prohibitions on pharmaceutical and medical device manufacturers giving "inappropriate" gifts and "misleading" information to healthcare professionals and instituted a new mandatory code of conduct for manufacturers. Instead, as predicted by MRA back in April, the state legislature dropped these provisions and the final budget should have minimal direct impact on the research profession.

Privacy
Data Privacy
CA - S.B. 1268, introduced by Sen. S. Joseph Simitian (D-11), has passed the Senate. This legislation would prohibit a transportation agency from selling or providing personally identifiable information of a person obtained pursuant to the person's participation in an electronic toll collection system or use of a toll facility. S.B. 1268 would also require identifiable information unrelated to transactions to be deleted within six months of collection. This could limit the ability of collecting toll data for research purposes. MRA would appreciate input from members of the research profession on the importance of such data to research.

CA - S.B. 1476, introduced by Sen. Alex Padilla (D-20), has passed the Senate. This bill would prohibit an electrical corporation or gas corporation from sharing, disclosing or otherwise making accessible to any 3rd party a customer's electrical or gas consumption data. However, a local publicly owned electric utility may still disclose customers' aggregate electrical consumption data for analysis, reporting or program management if all information has been removed regarding the individual identity of a customer. S.B. 1476 might limit the usefulness of energy consumption data for research purposes. MRA would appreciate input from members of the research profession on the importance of such data to research.

Congress - Rep. Thaddeus G. McCotter (R-MI 11) introduced the "Cyber Privacy Act" (H.R. 5108), which would require that "Any Internet Web site that makes available to the public personal information of individuals…(1) provide, in a clear and conspicuous location on the Internet Web site, a means for individuals whose personal information it contains to request the removal of such information; and (2) promptly remove the personal information of any individual who requests its removal." H.R. 5108 would define "personal information" as "any information about an individual that includes, at minimum, the individual's name together with either a telephone number of such individual or an address of such individual." Violation of the bill's provisions would be an unfair or deceptive practice as outlined in Section 5 of the FTC Act. This legislation is highly unworkable and is unlikely to see any action.

Data Security
NJ - Sen. Bob Smith (D-17) introduced S.B. 2153, which would require that a person destroy or arrange for the destruction of all records stored on a digital copy machine, which is no longer to be retained by that person, by erasing or otherwise modifying those records to make the records unreadable, undecipherable or non-reconstructable through generally available means. This legislation would impact the data security practices of any researcher making use of a digital copy machine if it becomes law.

Education Privacy
NJ - Sen. Shirley K. Turner (D-15) introduced S.B. 1696, which permits a student to participate in a voluntary survey if the school district sends prior written notification to the student's parents. This legislation is in line with existing federal law on education privacy.

NY - Assembly Member Catherine T. Nolan (D-37) introduced A.B. 10795 and Sen. Suzi Oppenheimer (D-37) introduced S.B. 7414, companion bills which would require schools and school groups to obtain student or parental consent before publishing "personal contact information" in a directory or otherwise disclosing such information. "Non-personal contact information" can be shared if (A) "the information disclosed cannot be used to contact the student directly" and (B) the student is provided "express written notice" and an opportunity to opt out. A.B. 10795 and S.B. 7414 would define "non-personal contact information" as including, but not limited to, "the student's name, grade level, age, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student." The bills would define "personal contact information" as including "the student's address, phone number, e-mail address or any other information that may be used to contact the student directly."

Electronic Surveillance
Congress - Senator Arlen Specter (D-PA) introduced the "Surreptitious Video Surveillance Act" (S. 3214), which would outlaw engaging in video surveillance in many circumstances, and treat it similar to wiretaps or other interception of electronic communications. S. 3214 would define "video surveillance" as "the intentional acquisition, capture or recording of a visual image or images of any individual if (1) the individual is in an area of a temporary or permanent residence that is not readily observable from a public location; (2) the individual has a reasonable expectation of privacy in the area; and (3) the visual image or images are made without the consent of "an individual present in the area" or "a resident of the temporary or permanent residence" and are "produced using a device, apparatus, or other item that was mailed, shipped or transported in or affecting interstate or foreign commerce by any means" or "transported or transmitted, in or affecting, or using any means or facility of, interstate or foreign commerce, including by computer." Since this legislation would not impact consensual surveillance, S. 3214 should have minimal impact on the research profession.

NJ - Assembly Member Annette Quijano (D-20) and Senator Donald W. Norcross (D-5) introduced the "Anti-Big Brother Act" (companion bills A.B. 3122 and S.B. 2144), which would require that a school district furnishing a student with a laptop computer, cellular telephone, or other electronic device "provide the student with written notification" and get parental consent if "the electronic device may record or collect information on the student's activity or use of the device if the electronic device is equipped with a camera, global positioning system, or other feature capable of recording or collecting information on the student's activity or use of the device." Similarly, A.B. 3122 and S.B. 2144 would require a "public or private employer furnishing an employee with a laptop computer, cellular telephone or other electronic device" to give that employee written notification and get written employee consent "that the electronic device may record or collect information on the employee's activity or use of the device if the electronic device is equipped with a camera, global positioning system or other feature capable of recording or collecting information on the employee's activity or use of the device."

Geolocation Privacy
LA - Governor Bobby Jindal (R) signed S.B. 801, sponsored by Sen. Neil Riser (R-32), into law as Act No. 807. As explained in the June 2010 Legislative Update, this new law will prohibit the use of a tracking device to track the location or movement of a person without the person's consent in most cases. Since survey and opinion researchers should not be collecting geolocation information without the consent of a research participant, S.B. 801 should have minimal impact on the research profession.

Healthcare Privacy
DE - Governor Jack Markell (D) signed S.B. 44, sponsored by David P. Sokola (D-8), into law as Chapter Number 307. This legislation amends Delaware's Health Record Privacy Statute to allow protected health information to be released for specific health research purposes while still adhering to federal Health Insurance Portability and Accountability Act (HIPAA) regulations, provided that the researcher provides documentation that an alteration to or waiver of the individual authorization required for use or disclosure of protected health information has been approved by the applicable privacy board in accordance with HIPAA regulations to protect personal privacy.

That approval cannot be granted until such a board has determined that: "The use or disclosure of protected health information involves no more than a minimal risk to the privacy of individuals, based on, at least, the presence of the following elements: (1) An adequate plan to protect the identifiers from improper use and disclosure; (2) An adequate plan to destroy the identifiers at the earliest opportunity consistent with conduct of the research, unless there is a health or research justification for retaining the identifiers or such retention is otherwise required by law; and (3) Adequate written assurances that the protected health information will not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research study, or for other research for which the use or disclosure of protected health information would be permitted by this subpart; (B) The research could not practicably be conducted without the waiver or alteration; and (C) The research could not practicably be conducted without access to and use of the protected health information."

S.B. 44 defines "research" as "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge."

IL - Governor Pat Quinn signed H.B. 1576, sponsored by Representative Sara Feigenholtz (D-12), into law as Public Act No. 966. This new law amends the Illinois Health Statistics Act, creating an exception for disclosing identifiable health data for research purposes if it is reviewed and approved by an Institutional Review Board (IRB) or an equivalent body."

Prison Labor
NY - Assembly Member Audrey I. Pheffer (D-23) introduced A.B. 11113, which would prohibit any inmate in any state or local correctional facility in New York from "engaging in whole or in part in obtaining access to, collecting or processing personal identifying information…pertaining to a natural person residing in this state." The bill defines "personally identifying information" as "personal information" consisting of any unencrypted information in combination with any one or more of the following data elements (if unencrypted): "(1) social security number; (2) driver's registration number or non-driver identification card number; or (3) mother's maiden name, financial services account number or code, savings account number or code, automated teller machine number or code, electronic serial number or personal identification number." A.B. 11113 also defines "personal information" to be "any information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person."

Telephone
Automated Calls
MA - Representative William Smitty Pignatelli (D-4th Berkshire) introduced H.B. 4730, which would ban most automated calls, including those for research purposes. The bill would prohibit using or connecting "to a telephone line an automatic-dialing device unless: (1) the subscriber has knowingly or voluntarily requested, consented to, permitted or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered." H.B. 4730 would exempt several types of calls, including "messages on behalf of municipalities and government" and calls to those "whom the caller has maintained or had a business relationship within the prior 24 months." This legislation would also establish a "no automatic dialing-announcing device message list of subscribers who do not wish to receive automatic dialing-announcing device messages." H.B. 4730 defines "automatic dialing-announcing device" as "a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called" and defines "message" as "any call, regardless of its content." The Joint Committee on Telecommunications has set this bill aside for study, making action on it unlikely this year. MRA will still seek to either defeat H.B. 4730 or amend it to exclude automated research calls.

Political Calls
KS - H.B. 2217, sponsored by Rep. Dale Swenson (R-97) and opposed by MRA, has died with adjournment of the legislature. It would have expanded restrictions on telemarketing calls to "any call made by a candidate, candidate committee or political committee" which could have conceivably impacted research calls made directly by such entities. H.B. 2217 was last covered in the January 2010 Legislative Update.

NC - H.B. 748, sponsored by the minority whip, Representative Deborah Ross (D-38), was passed by the House and Senate and now awaits the Governor's signature. The legislation is part of North Carolina's response to the Supreme Court's Citizens United case and changes regulation of a variety of political activities. H.B. 748 specifically exempts from its definition of "electioneering communications": "A public opinion poll conducted by a news medium, as defined in G.S. 8-53.11(a)(3), conducted by an organization whose primary purpose is to conduct or publish public opinion polls, or contracted for by a person to be conducted by an organization whose primary purpose is to conduct or publish public opinion polls." However, H.B. 748 does include a "push poll" as an "electioneering communication," defining it to mean "the political campaign technique in which an individual or organization attempts to influence or alter the view of respondents under the guise of conducting a public opinion poll." MRA will seek to work with the regulatory authorities in North Carolina as they to ensure that this definition of "push poll" in no way impinges on bona fide survey and opinion research.

Telemarketing/Sales/Non-Research Activities
Impersonation Online
CA - S.B. 1411, introduced by Sen. S. Joseph Simitian (D-11), has passed the Senate. This legislation would require that any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means, as specified, for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a misdemeanor. The bill would, in addition to the specified criminal penalties, authorize a person who suffers damage or loss to bring a civil action against any person who violates that provision. This legislation should have minimal impact on bona fide survey and opinion research.