- Data Breach/Identity Theft
- Caller ID
- Online Issues
- Physician Gifts
- Personal Identifying Information
- Protected Health Information
- Internet Privacy
- Financial Privacy
- Selling of Telephone Records
- Automated Dialers
- Caller ID
- Call Center Disclosure
- Political Telephone Calls
- Political Telemarketing-Push Polls
- Selling of Telephone Records
- Do Not Call-Telephone Solicitation
- Do Not Mail
Federal Legislative Activities
Data Breach/Identity Theft:
Legislation has been reintroduced in both the House and Senate to regulate data breaches. Disputes over Congressional committee jurisdiction prevented these bills from passing either body in the 109th Congress. While those disputes continue, CMOR will continue to monitor developments, and ensure that definitions do not adversely impact survey research.
The Preventing Harassment through Outbound Number Enforcement (PHONE) Act has been introduced in the House to prohibit anyone from using false caller ID information or caller ID information of an actual person without their consent, with the intent to defraud or deceive.
State Legislative Activities
As predicted in the January newsletter, states have introduced a great deal of legislation on issues impacting the survey research profession. Some of the legislative issues presented are clearly problematic for the profession, while others are silent as to intent and purpose, and as a result, further inquiries are required to seek clarification.
As always, CMOR is reviewing each issue for intent, likelihood of passage, and strategy needed to challenge and effectively remove any legislation that challenges the survey research profession.
CT, IL, MN, MT, PA, and TX introduced legislation to prohibit persons from using false misrepresentations via the Internet or e-mail to induce others to provide identifying information.
MI introduced a bill to prohibit spyware that deceptively collects personal identifying information: (1) via computer software that records a majority of keystrokes made on a computer; and (2) software that disrupts the services or transmission of instructions or data to other computers or related computer equipment or devices (including printers, scanners or fax machines).
AZ, NY and WA introduced legislation that would require pharmaceutical manufacturing companies and their pharmaceutical marketers to disclose, to the State Board of Pharmacy, the value of any gift greater than $25 given to healthcare providers. “Pharmaceutical marketers” – which (by definition) includes survey researchers - are required to comply with this reporting requirement. CMOR is concerned that the disclosure requirements for NY will require personal identifying information and negatively impact the profession. An exemption is critical, since we would not only be impacted by the reporting requirement, BUT also classified as a marketer. CMOR has begun the first steps of reaching out to the sponsor. This bill was introduced in 2005 with no action, though there is likelihood no action will occur for this year, CMOR is treating this issue as a top priority.
Personally Identifiable Information
NY introduced legislation that prohibits on-line computer services from disclosing personal information, unless notice has been provided and the consumer has consented to the disclosure. “On-line computer service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information using computer-based telecommunications. The term also includes a service that permits a subscriber to retrieve stored information from, or file information for storage in, information storage facilities, electronic publishing or an electronic messaging service. If survey research businesses are similar in nature to the definition as described, then compliance with the bill and consent from respondents will be required.
Protected Health Information
HI and NY introduced legislation to regulate protected medical records.
NY introduced legislation to enact the New York State Internet Privacy Law, to prohibit website operators from disclosing any personal identifiable information to any third party without prior informed written consent. “Operator” has been defined to include “any person who operates a website on the internet or an online service and who collects or maintains a website, where the website is operated for commercial purposes, including any product involving commerce.” ALL survey research companies that have websites are included within the scope of the definition and will be required to comply. This legislation is an example of the states being expansive beyond federal law (COPPA) and applying consent requirements to all website operators. CMOR is reviewing the bill’s likelihood of passage. A similar bill was introduced in 2005, but failed to pass.
NY introduced legislation to require financial institutions to obtain written customer consent prior to the release of any financial or personal information.
Selling of Telephone Records
OR, TX and WA introduced legislation to prohibit the trading and selling of telephone and wireless communication records without the customer’s consent.
ID, IL, OK, and WA introduced legislation to regulate the use of auto-dialing announcing devices (ADAD), including establishing provisions for live operators and disclosure of the purpose of the message, contact information of the caller, and name of the person for whom the message is made. These measures would apply to all users of ADAD systems, including survey researchers and political pollsters.
OK and TN introduced legislation to prohibit a telephone solicitor or any person from inserting false information into a caller ID system by voice or written communication.
IL introduced a bill that prohibits using Internet caller identification equipment from inserting false information into a caller ID system by voice or written communication.
Call Center Disclosure
AZ and OK introduced legislation to require call centers to disclose before any call the complete street address from which the call is made, the name of the employer, and the purpose of the call. Both state call center definitions will apply to the survey research profession. Arizona defines consumer service call center as “an entity whose purpose includes the initiating or receiving of telephonic communications on behalf of any person for the purpose of providing or receiving services …” Oklahoma defines call center as a “location that provides customer-based services and sales assistance or technical assistance and expertise to individuals located in Oklahoma via telephone, the Internet, or other telecommunications.”
AZ introduced legislation establishing a no call list for political campaigns. This list would contain a list of people who choose not to receive telephone calls from any political committee. The vague nature of the law may include survey research. CMOR is contacting the sponsor to clarify the intent of the legislation.
FL, KS, IL, MI, OK and PA introduced bills that prohibit the use of automated dialing announcing devices (ADAD) for political-purpose calls, including political polling. CMOR assigns this legislation (similar to previous bills in other states as presented in January’s newsletter) top priority - the intent is clearly to prohibit the use of autodialers for conducting polls.
FL and KS have introduced legislation to expand the definition of telephone solicitation to include “automated political recorded messages,” essentially including any outbound telephone call that plays a recorded message to promote, or campaign for or against, a political candidate or a political issue. The potential impact on the profession cannot be determined until the term “promote” is clearly defined. However, generally, this term does not mean gather information about; but seek to sway.
Political Telemarketing-Push Polls
IA introduced two bills that create disclosure requirements for conducting political telemarketing or push polls. This disclosure includes: (1) the identity of the individual who is calling and the entity with which the individual is affiliated; (2) the individual or entity that paid for the telephone communication; and (3) the name, telephone number, and address of an individual whom the call recipient can contact for further information. Political telemarketing is defined as “the canvassing of persons under the guise of performing a poll or survey, with the purpose of encouraging support of, or opposition to, a clearly identified candidate for political office or the passage or defeat of a clearly identified ballot issue.” CMOR will be in contact with the sponsor to offer our support for this legislation, since it limits illegitimate polls, and offer any assistance in further carving the distinction between push polls and legitimate survey research.
MD, NY, RI and OR introduced legislation to prohibit sending unsolicited commercial fax advertisements without consent. The legislation applies only to sales, not survey research.
MS introduced legislation to include fax numbers in its do not call registry.
Do Not Call-Telephone Solicitation
CT has introduced three bills that prohibit a telephone solicitor from using a recorded message device to connect to a call, unless the consumer knows and has consented to or authorized the receipt of the message, and the message is immediately preceded by a live operator.
NY has introduced legislation to prohibit telephone solicitations between the hours of 8 p.m. and 8 a.m.
Do Not Mail
NY introduced legislation to enact a “do not offer” statewide registry for mail and e-mail, which would prohibit direct mail marketers from mailing unsolicited direct mail marketing to a customer more than thirty days after the customer’s name and address appears on the quarterly do not offer statewide registry. Direct mail marketing is defined to include “any mailing with solicitations for the sale of goods or services and is directed to a customer at their residence within New York by personal delivery to a personal residence.” Since the profession does not engage in sales, the scope of this registry is not applicable to survey research.
NM has introduced legislation to require a for-profit business that publishes and delivers local telephone directories or unsolicited mailings to residences to include a statement and contact number for respondents wishing to opt out from receiving future communications. Unsolicited mailing means a communication delivered to a resident without the resident’s prior express invitation or permission. This legislation would apply to all for-profit businesses, including the survey research profession.
NY introduced four similar bills to regulate falsifying or forging unsolicited commercial electronic message transmissions over service provider’s and computer networks. “Commercial electronic message” has been defined as a message sent for the purpose of advertising or promoting material for the lease, sale, rental, and gift offer of any realty, goods, services or an extension of credit. Since the legislation relates to messages concerning a commercial or sales related nature, there is no detrimental impact to the profession.
VT has also introduced a bill that prohibits sending unsolicited commercial e-mail unless the e-mail discloses the advertiser’s name, address, telephone number and e-mail address, and provides contact information to opt out of future e-mails. “Commercial e-mail advertisement” has been defined to include any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift, or disposition of any property, goods, services or extension of credit. This legislation mirrors the New York bills and, similarly, there are no negative implications for the survey research profession.