CMOR Legislative/Regulatory Issues

The rise of identity theft and data breach and the tremendous growth in the information services and database industries has driven increasing concern about: unsolicited telephone calls, faxes, and emails; controls over data acquisition, access and distribution; and about other personal privacy issues. There is more friction and potential conflict between privacy interests and the information needs of society and the survey and opinion research profession. State and federal legislation addressing privacy concerns has become more common, with more expansive language and with fewer exemptions and exclusions for research. The survey and opinion research profession runs the risk of being ensnared in restrictions covering telemarketing abuses and data and personal privacy. The following are some general types of bills we monitor at both the federal and state levels, as well as descriptions of their possible impact on research. They broadly fit into the categories of Telephone, Privacy & Data Security, Online, Tax & Budget, and Incentives for Pharmaceutical Marketing Research

TELEPHONE

• DO-NOT-CALL BILLS seek to prohibit unsolicited telephone calls to certain people. Such legislation expands upon existing laws that maintain the state and federal Do Not Call Registries and require telemarketers to comply with any do-not-call request they receive. These bills include attempts to add political, autodialer, ADAD/IVR, or research calls to state and federal Do Not Call Registries. Researchers would then be required to delete those individuals who have requested not to be called and/or who have been placed on the state and federal registries.

  Impact on Research: If broadly written, these bills could limit the number of people that researchers could call, restricting the research profession's ability to obtain representative samples. This type of legislation would also increase the costs for researchers using the telephone to conduct research or to recruit.

• AUTODIALER and ADAD/IVR/ROBOCALL BILLS would regulate the use of autodialers, prerecorded telephone messages, and various interactive voice response systems. Such regulations tend to be content-neutral, applying to any use of the technology, including researchers’ use of the technology. Common restrictions include to whom the call can be made, the hours of permissible use, advance registration of use with state authorities, and establishing the length of time before mandatory disconnection.

  Impact on Research: When written broadly so as to (even inadvertently) implicate research, these measures have the ability to affect efficiency in the use of autodialers and other automated systems -- if not ban their use outright -- and thereby lead to increased costs.

• POLITICAL POLLING BILLS seek to regulate the conduct of political polling. In recent years, there has been an increase in legislation to combat the practice of political telemarketing or so-called “push polling” conducted under the guise of a legitimate poll. These bills seek to impose disclosure or reporting requirements to identify the entity sponsoring or paying for the call.

  Impact on Research: Many of these political telemarketing bills are often drafted in such a way as to require disclosure of the sponsor in legitimate polls and surveys - thereby possibly inserting bias into the survey.

• TIME OF DAY BILLS would restrict the times that a caller (sometimes only telemarketers, sometimes anyone) can make unsolicited telephone calls, usually before 9:00 a.m. and after 5:00 or 7:00 p.m. and prohibit calls being made on Sundays or holidays.

  Impact on Research: Since researchers must access respondents when they are most likely to be at home (e.g.. in the evening), this legislation would limit our ability to get representative samples or to reach low incidence study respondents.

• CALLER ID/CALL BLOCKING would prohibit callers from blocking, falsifying, or manipulating the transmission of their Caller ID information and/or require them to transmit their identifying information on Caller ID displays.

  Impact on Research : Although “truth in Caller ID” is the recommended best practice from CMOR, any researchers still using telephone systems that do not allow for the transmission of Caller ID information could face significant costs in re-configuring their telephone systems to do so.

PRIVACY & DATA SECURITY

• DATA SECURITY BILLS would establish regulations concerning the acquisition, dissemination and storage of all sorts of personal data. Many of these bills seek to require prior written permission from the individual whose personal data is being handled, or specify minimum standards for data security. Although most legislation at the federal level focuses on types of information not typically collected by that many researchers (like social security numbers, and credit card and financial account numbers), definitions and scope vary.

  Impact on Research: Legislation of this type does not always directly affect survey and opinion researchers, since we usually de-identify personally identifiable information and do not keep or share such information upon completion of a given study. However, such legislation can directly affect data collectors and list suppliers, the quality of the lists, and how they can be used, and may affect any researchers who contract with affected companies and organizations. Such bills can also alter respondent expectations, harming respondent cooperation.

• MINORS PRIVACY BILLS would regulate contacting or collecting information from minors. Bills vary in their definitions of “children”, so age requirements vary. Most bills require parental access and consent for contact with and data collection from children; and target a variety of mediums – online, in person, telephone, etc. Some bills also would establish “child protection registries” that would require marketers to agree not to contact minors listed by their parents on state-maintained lists.

  Impact on Research: Such bills, even when directed primarily at sales-related contact and data collection, can hamper research interactions with minors , bias samples, and raise costs.

ONLINE

• SPYWARE BILLS would regulate the use of various tracking and downloadable software, sometimes including “cookies”. Spyware is software that can track or collect the online activities or personal information of Internet users, change settings on users’ computers, or cause advertising messages to pop up on users’ computer screens.

  Impact on Research: Legitimate survey and opinion researchers do not install intrusive or unwanted software on respondent computers, but some spyware bills would require prior consent for even the use of such basic online tracking techniques as “cookies”, significantly increasing the costs of research online.

• EMAIL BILLS would regulate the sending of emails for research and recruitment. Many state bills target email sent in bulk, requiring various forms of recipient consent and disclosure in the email. Some legislation is content-neutral, meanring that it targets emails whether or not they are commercial in nature. Also, though it has not arisen for some time, CMOR is always on guard for legislation the would establish a Do Not Email Registry.

  Impact on Research: Legitimate survey and researchers do not install intrusive or unwanted software on respondent computers, but some spyware bills would require prior consent for even the use of such basic online tracking techniques as “cookies”, significantly increasing the costs of research online.

• PHISHING BILLS would target ways in which criminals and identity thieves solicit information online, commonly referred to as phishing. Phishing is any criminal scheme in which digital communications play a significant role in acquiring multiple victims’ identifying or personal financial data by deception, and transferring or transmitting multiple victims’ data via the Internet for criminal use.

  Impact on Research: Legitimate survey and researchers do not install intrusive or unwanted software on respondent computers, but some spyware bills would require prior consent for even the use of such basic online tracking techniques as “cookies”, significantly increasing the costs of research online.

TAX & BUDGET

• SERVICE OR SALES/USE TAX BILLS would levy taxes on the sale or provision of products and services. Such tax bills, unless carefully written, could include products and services of survey and opinion research.

  Impact on Research: Taxes on research products and services raise costs and make research a less attractive option for end users and clients.

• CENSUS BUREAU APPROPRIATIONS BILLS would allocate federal spending within the fiscal year to fund the research efforts and products of the U.S. Census Bureau. CMOR advocates for as much funding as we can get.

  Impact on Research: Census data forms the baseline sample units for virtually every survey performed in the United States. Also, the innovative research methods that a well-funded census can develop benefit researchers of almost every kind. Finally, a properly financed Census Bureau can promote proper data use, minimize respondent burden, respect individual privacy, and ensure confidentiality.

INCENTIVES FOR PHARMACEUTICAL MARKETING RESEARCH

• PHARMACEUTICAL GIFT REPORTING BILLS would require the reporting of any type of gifts to healthcare providers (usually doctors) ultimately originating from pharmaceutical companies. While some bills include exemptions for research, most have no such exemptions. Bills require a variety of different kinds of disclosure, from simply the amount of money spent on marketing to healthcare providers, to full personally identifiable information about every doctor that receives any gift or money from a pharmaceutical company.

  Impact on Research: Such bills could severely hinder market research with health care providers, who are drawn to participation by sizeable research incentives .

• PHARMACEUTICAL GIFT BAN BILLS would outlaw gifts to healthcare providers (usually doctors) ultimately originating from pharmaceutical companies, including incentives for market research.

  Impact on Research: Such bills could severely hinder market research with health care providers, who are drawn to participation by sizeable research incentives .

For more information on any of these or other legislative/regulatory issues and CMOR’s positions, please contact CMOR’s government affairs office at information@cmor.org or (202) 775-5170.