Overview of the Insights Association's top government affairs priorities for the marketing research and data analytics industry, as determined by the Government Affairs Committee and the Board of Directors.
The 1991 Telephone Consumer Protection Act (TCPA) requires express prior consent to use an autodialer to call a cell phone. The 2015 TCPA rules from the Federal Communications Commission (FCC) expanded the definition of an autodialer to include almost anything short of a rotary dial phone while dramatically expanding potential class action liability for most phone calls. At a time when more than 63% of U.S. households can mostly or only be reached on a wireless phone, is it time to reform the TCPA to focus on deterring and punishing illegal and abusive telemarketers, as Congress originally intended, and/or simply exempt survey, opinion and marketing research telephone calls? The Insights Association has intervened in a court challenge of the FCC’s rules, and helps lead a coalition trying to reform the TCPA in Congress.
Decennial Census and the American Community Survey
Full funding of the Census Bureau budget is a key policy priority for survey, opinion and marketing researchers. Accurate data from the decennial Census and the American Community Survey (ACS) are essential for producing statistically representative studies in the United States. These programs are also central to promoting economic growth, guiding the prudent allocation of public and private resources, and sustaining a strong democracy. Response to the ACS also must remain mandatory; if response to the ACS were voluntary, researchers would be unable to produce usable data for more than 40 percent of all U.S. counties, or for small cities, towns, neighborhoods, and native reservations.
International Digital Trade
A growing challenge for survey, opinion and marketing research are data localization/nationalization laws, which directly or indirectly require U.S. companies to process and maintain data within a given foreign country, and laws like the European Union’s (EU) General Data Protection Regulation, which attempt to force U.S. companies to adopt significantly more restrictive foreign data privacy laws. These types of laws often amount to digital protectionism. “Harmonization” of U.S. privacy regulation to a foreign standard may not make the most sense, as innovative data businesses generally develop and grow in the US, and America’s approach to data privacy may be a key factor in our competitive advantage. In response to the October 2016 demise of the U.S.-EU Safe Harbor, which allowed for the legal transfer and processing of European Union citizens’ data across the Atlantic, the Insights Association opted to support the Privacy Shield. a replacement deal. The Insights Association advocates for trade deals that remove regulatory barriers to the international free flow of data.
Consumer Data Privacy
The Insights Association advocates for a data privacy regime hospitable to survey, opinion and marketing research. A baseline national consumer privacy law makes sense as a long term goal, but for now, a continued privacy regime based at the Federal Trade Commission (FTC), with their authority (under Section 5 of the FTC Act) to vigorously police unfair or deceptive acts or practices, is effective because it focuses on preventing and punishing tangible harms against consumers. Rather than rushing to regulate emerging technologies, tangible value has come from the National Telecommunications and Information Administration (NTIA) multistakeholder process approach. Applied to date to mobile apps, facial recognition and drones, a multistakeholder process can advance industry’s privacy best practices, with the NTIA playing an important role as an impartial coordinator. In various debates over data privacy, including online behavioral tracking, data brokers, Big Data, the Internet of Things, and broadband data privacy, the Insights Association tries to focus regulation on the purpose and use of consumer data, not its type or existence. Data collected, used and shared strictly for bona fide research (which involves data about individuals only for the purpose of understanding broader population segments and demographic groups) would benefit from a more lenient standard than other types of data.
Consumer Data Security
The U.S. needs a carefully crafted national standard for consumer data security and breach notification, instead of the current patchwork of state laws with conflicting data security standards and uneven procedures for notifying consumers in case of a security breach. Congress has considered numerous pieces of legislation on the topic in recent years, but concerns about policy and jurisdiction have prevented passage. A national data security law would ideally: be limited to cover only personal information that could be subject to criminal abuse (such as identity theft); avoid granting the Federal Trade Commission (FTC) extraordinary rulemaking powers to expand that definition (as we ensured with amendments to the 2011 SAFE Data Act); provide an exemption for encrypted or de-identified data; preempt the conflicting patchwork of state data security laws; and prohibit private lawsuits. State laws and regulations should follow similar strictures.
Pharmaceutical Marketing Research with Doctors
Critics of pharmaceutical and medical device companies' payments to health care professionals have driven regulation requiring public reporting of any payments from such companies to doctors (and nurses). Some policymakers have gone as far as to try to ban payments altogether, and some explicitly include marketing research payments for participation in marketing research studies. Manufacturers generally do not conduct research in any state that requires reporting of (or bans) payments, unless marketing research incentives have been explicitly excluded. The Insights Association has succesfully excluded respondent incentives for blinded marketing research in the District of Columbia, Massachusetts, Minnesota, and in the federal Physician Payments Sunshine Act. Since the passage of the Sunshine Act in 2010, states took a hiatus from pursuing new laws of this nature, until 2017. The Insights Association lobbies to exclude respondent incentives from any pending legislation and from existing state laws and regulations.
Class Action Lawsuit Reform
The marketing research and analytics industry faces an escalating threat of class action litigation, most prominently regarding the TCPA, as well as data privacy and data security concerns. Serial plaintiffs are preying on companies and making a mockery of the U.S. justice system. We support reform of class action litigation, such as the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act (FICALA) (H.R. 985).
An advocacy or persuasion call disguised as a poll is a particularly deceptive and unethical activity. Laws and regulations should demand transparency of political advocacy calls and protect legitimate political and public opinion research calls (including message testing). For example in 2014, New Hampshire fixed its push poll law to exclude bona fide research calls, concluding a four-year campaign in coordination with the American Association of Political Consultants (AAPC), and in 2015, Maine excluded research calls from similar push poll legislation. More recently, the Insights Association filed an amicus brief in a Texas court case involving the misuse of the term "push poll" to describe bona fide research.
A respondent who receives an incentive for participating in survey, opinion and marketing research is an independent contractor, not an employee of the research company running the study. However, state and federal agencies sometimes mistakenly claim that respondents have been misclassified and should be considered employees for purposes of workforce protections, unemployment insurance payment responsibilities, and taxes, and the tests used to determine the difference between an independent contractor and an employee can vary dramatically by jurisdiction. The Insights Association seeks to protect independent contractor status at the state and federal level. For example, in 2012, the Insights Association helped draft and introduce the Research Fairness Act to specifically clarify that mystery shoppers and research respondents were independent contractors under federal labor law, and in 2014, our testimony helped passage of an amendment to legislation in Washington state that would have otherwise created the presumption in state law that anyone receiving a respondent incentive was an employee of the research company.