• Incentives to Physicians
  • Privacy
    • Data Security
    • Financial Privacy
    • Identity Theft
    • Personal Data Disposal
  • Telephone
    • Cell Phones
  • Tax/Budget
    • Census Funding
    • Travel Marketing Research
  • Sales
    • Do Not Call
    • Fax
    • Spam
    • Telephone Solicitation

Current Legislation

Incentives to Physicians
MA - Governor Deval Patrick of Massachusetts has signed S.B. 2863 into law, requiring pharmaceutical and medical device manufacturers to report any gifts to doctors over $50.00.

Privacy
Data Security
CA - California Gov. Schwarzenegger (R) has signed S.B. 364, amending an existing law that requires agencies, persons, or businesses to report breaches of security of computerized personal information. S.B. 364 requires that notification of those affected include a description of the information acquired and a toll-free number or e-mail address to contact the entity or a credit reporting agency. The provisions of the new amended law apply to the research profession in the event of a security breach in California or to residents of California.

South Korea - South Korea is working on a data protection law that could require entities that suffer a data breach to notify and assist affected individuals. Violations could bring up to five years in prison and 100 million South Korean Won in fines. The South Korean law could also require covered entities to encrypt personal or sensitive information.

Mexico – Mexico is reportedly developing their own comprehensive data privacy law, modeled after Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA).

Financial Security
CA - The Ninth U.S. Circuit Court of Appeals reinstated portions of California's financial privacy law in an opinion issued on September 4th. The California Financial Information Privacy Act (S.B. 1, enacted in 2003) set a broad restriction on the sharing of consumer information with affiliates, stating that “[a] financial institution shall not disclose to, or share a consumer’s nonpublic personal information with, an affiliate unless the financial institution has clearly and conspicuously notified the consumer annually in writing . . . that the nonpublic personal information may be disclosed to an affiliate of the financial institution and the consumer has not directed that the nonpublic personal information not be disclosed.” In 2005, the Ninth Circuit held that the statute was preempted by the Fair Credit Reporting Act (FCRA), because the law restricted the sharing of consumer credit report information with affiliates. The case was remanded to determine which portions of the statute should be preempted. The lower court determined, on remand, that the affiliate-sharing provision was completely preempted. However, the decision this week came to a different conclusion and found that it is permissible to confine the statute to the applications that are not preempted. That is, for affiliate sharing of consumer information not covered by FCRA, the lower court will likely re-instate those provisions of the law. The likely effect of this is that banks and other financial institutions may be required to offer customers a chance to object prior to sharing non-credit information with affiliates, in addition to FCRA’s affiliate-sharing restrictions.

Identity Theft
Congress - H.R. 5938, legislation incorporating the text of the “Identity Theft Enforcement and Restitution Act” (S. 2168), was signed into law. The Act’s language would allow victims to recover the costs associated with resolving identity theft and combat cybercrimes. This legislation should have no negative impact on the survey research profession.

Personal Data Disposal
NY - A.B. 10625, sponsored by Assemblywoman Pheffer (D), became law, setting provisions for destroying records containing personal information. Specifically, no person, business, firm, partnership, association or corporation (not including the State or its political subdivisions) shall dispose of records containing personal identifying information unless such person or entities under contract shreds the record before disposal, destroys personally identifying information, modifies the record or takes actions consistent with industry practices. This new law applies to all for-profit businesses, including members of the survey and opinion research profession.

Telephone
Cell Phone
CA -California Gov. Schwarzenegger (R) has signed A.B. 28 into law, prohibiting a person from driving a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication. Survey researchers should be aware of the state laws that impose such restrictions and should develop policies on communications with respondents who are driving motor vehicles.

Tax/Budget
Census Funding
Congress – Although the House and Senate recessed for the fall elections without passing appropriations legislation to fund the Census Bureau, CMOR tried to secure support from Congress for decennial census preparations in the “Continuing Resolution”, passed by Congress just before both houses recessed. We will likely resume our efforts after the election, when Members are expected to return for a “lame duck” session.

Travel Marketing Research
Congress – The Travel Promotion Act (H.R. 3232) passed the House Commerce Trade and Consumer Protection subcommittee on September 16. It would, among other purposes, expand funding for travel research in connection with the promotion of international travel to the U.S., including “expanding access to the official Mexican travel surveys data to provide the States with traveler characteristics and visitation estimates for targeted marketing programs” and “revising the Commerce Department's Survey of International Travelers questionnaire and report formats to accommodate a new survey instrument, expanding the respondent base, improving response rates, and improving market coverage.” This legislation is primarily for the purposes of travel promotion, rather than research. CMOR’s Government Affairs Committee decided in July 2007 that CMOR should not be advocating for money for specific sectors of research. As a result, CMOR will not be taking a position on H.R. 3232 (or its Senate companion, S.1661).

Sales
Do Not Call
Canada – The Canadian Radio-television and Telecommunications Commission (CRTC) launched Canada’s National Do Not Call List on September 30. Registration is good for three years. Landlines, cellular phones, and fax lines may all be registered. Telemarketers may not call list registrants starting 31 days after registration. Telemarketers are required to identify themselves on the call and in their Caller ID transmission. They are also required to maintain their own internal do not call lists. Violations of the law will bring penalties of up to $15,000 per call for businesses and $1,500 per call for individuals. The following callers are exempt from the List, but not all of the new rules: registered charities seeking donations; newspapers looking for subscriptions; political parties and their candidates; and companies with whom the registrant has an existing business relationship. More importantly, according to the CRTC, calls for “market research, polls or surveys” are implicitly exempt from the new Canadian National Do Not Call List and rules, because “they are not selling a product or service, or requesting donations.” The published rules explicitly state that calls “made for the sole purpose of collecting information for a survey of members of the public” are exempt. However, the original telemarketing rules still apply to survey and opinion research.

Fax
NY - Has enacted A.B. 70, a bill sponsored by Assemblywoman Pheffer (D), into law, prohibiting unsolicited fax advertising when a recipient has informed the sender by verbal, written, or electronic means that they wish not to receive such advertisements. It also requires the fax advertisements to include an opt-out provision. Unsolicited advertisements are defined to include all faxes of a commercial nature and do not include faxes for survey research purposes. Survey researchers, however, should be cognizant of such fax laws and develop faxes that avoid the appearance of a commercial advertisement.

Spam
CA - California Gov. Schwarzenegger (R) has signed A.B. 2950 into law, defining the term “header information” and making it unlawful for a person or entity to send a commercial e-mail advertisement from California or to an e-mail address in California, if the e-mail contains or is accompanied by a 3rd party's domain name without the permission of the 3rd party. Header information is defined as “the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message.” The law applies to e-mail messages that are sales related only and do not apply to messages sent for survey research purposes.

Telephone Solicitation
CA - California Gov. Schwarzenegger (R) has signed A.B. 2059 into law, requiring solicitors to send a solicitation request via mail to any recipients on the national do not call registry, prior to making calls to such recipients. The new law also requires the solicitor to provide clear and non-misleading information regarding their name and business. The law applies to solicitations that attempt or seek to offer a prize; to rent, sell, exchange, promote, gift, or lease any goods or services; to offer or solicit credit; to seek certain marketing information; or to seek to sell or promote any investment, insurance, or financial services. Survey research activities are not covered by this law, since the contents of the mailing expressly applies to commercial activities.