Congress has been in recess throughout August and will return after Labor Day. From then until the end of the 2005 session, the House and Senate may complete some of the bills CMOR has been monitoring and reviewing throughout the year.

While Congress is officially slated to adjourn for the year on Friday, September 30th, most observers -- including many on Capitol Hill -- believe that lawmakers will be in Washington past that date. This possibility is due in part to the Senate’s need to pass a number of appropriations (spending) bills, as well as the Supreme Court confirmation hearings of Judge John Roberts. Congress could remain on Capitol Hill as late as Thanksgiving.

How does this impact us?

The House of Representatives has passed HR 29, a bill that does not harm survey research. As originally written, HR 29 would have included “cookies,” a technology that often enables online research and advertising, as part of its definition of “spyware.”

Significantly, HR 29 supersedes any state-level laws or regulations pertaining to similar activities, including spyware-related fraud, deceptive conduct, etc. The preemption of state law is an important step in any area of legislation, because it allows researchers to follow a single federal standard instead of a wide variety of diverse state laws.

After CMOR’s intensive lobbying and the lobbying of other like-minded organizations, the House Energy and Commerce Committee (which authored the legislation) chose not to include cookies as part of its definition of spyware.

Senate bill S.687 , a similar measure, is still under consideration by the Senate Commerce, Science, and Transportation Committee. While this measure is still subject to amendments, we are not concerned by its nature. S. 687 specifically states that it applies to software, and that cookies are not software.

While other spyware-related bills have been passed by one house of Congress or the other, these two measures are expected to receive the broadest support. Ideally, a conference of congressmen and senators would reconcile the two bills, and the final version would be sent to the White House for an authorizing signature.

Unlike HR 29, S.687 would not supercede state laws or requirements.

It is unclear whether this process will continue to evolve in 2005 or wait until 2006, but in either case the situation looks promising.

Data Breach/Identity Theft
Both the House and Senate have been working hard to produce legislation in response to several infringements of Americans’ sensitive personal data. Such data has ranged from social security numbers to credit card information, and millions of Americans have been or can potentially be affected.

It was recently reported by Congress Daily (a Washington political newsletter) that complaints of identity theft more than doubled from 2002 to 2004, according to the Federal Trade Commission. The article states that credit card fraud accounted for 28 percent of these reports. Phone utilities fraud and bank fraud weren’t far behind, and employment fraud comprised a sizeable percentage as well.

Our concern was that one or more of these bills would include the sort of personal information typically collected by survey and marketing researchers, which is rarely financial or highly sensitive in nature. We urged both houses of Congress to regulate where the problems actually lie—with the types fraud that are not perpetuated by our profession.

We are happy to report that legislative progress has been just as we hoped--so far. Many of these bills are in earlier stages than the spyware legislation mentioned above, so it is difficult to predict what the final product will be. However, the relevant bills are targeted primarily toward “bad actors”— those who misuse or fail to properly protect sensitive and/or financial data — than toward “good actors” such as survey researchers.

These are the two types of bills CMOR expects Congress to revisit after Labor Day. Should other issues arise, or should the spyware and/or data breach bills take a surprising turn, CMOR will be monitoring, and more importantly acting , in defense of the opinion and marketing research profession.