LaToya Rembert-Lang, the Marketing Research Association’s counsel, and Howard Feinberg, MRA’s lobbyist, presented at the 2012 MRA Annual Conference, “Survey Research Town Hall: Clearing up the Confusion”.
LaToya discussed the legal perspective on emerging research issues.
- Big Data – “Survey researchers, because your business is data, you should be concerned about regulation of Big Data,” LaToya said. Big Data offers a huge variety of information, in large volumes, moving at high velocity. This is changing legal views of anonymization: certain privacy laws (see HIPAA and the EU Directive) permit certain data transfers only if the data is anonymized. Big Data changes this context: can anyone be anonymous if enough information can be used to triangulate to identify individuals? For instance, a ZIP code was found to be PII (Personally Identifiable Information) within California’s Song Beverly Credit Card Act for Pineda v. Williams-Sonoma Stores Inc. (Calif., Feb 10, 2011): you cannot collect a ZIP code for research purposes but you can for security verification of a credit-card transaction. So how the data is used changes how it is classified.
- Automated collection – The act of populating data sets (creating more Big Data!) exposes you to potential legal concerns such as the Computer Fraud and Abuse Act, Trespass (in the case of data scraping) and Unjust Enrichment (misappropriating data customized and published by others).
- Unstructured Data – Almost 95% of digitial data is unstructured, and the amount is growing rapidly: “It is the ‘noise’ of the digital universe, an unharnessed intelligence.” Such data is growing in importance, since it can provide “current customer sentiments, indicators of shifting markets and cues to emerging trends.” Legal concerns include following privacy policies and business ethics and removing personally identifying information.
- Cross-platform sharing – The integration of information across multiple platforms leads to a need for organizations to adopt a standardized approach to privacy “across file sharing, code sharing, media sharing, collaboration and access”.
In his turn, Howard provided the “advocacy perspective”.
- Minor’s Privacy – This is a popular issue on Capitol Hill (“everyone loves kids!”), for COPPA and beyond. COPPA regulation is being rewritten, and the FTC is considering banning the “email plus” method for verifying parental consent (a child provides a parent’s email address), which is the most effective and affordable means of verification but which the FTC views as a temporary method (exactly what should replace it they are unclear on). The FTC is also considering reducing the length for which you can maintain data gathered from children to 6 months or less. Senator Mark Pryor is looking to protect privacy of minors (under 18, where COPPA covers under 13) with a new proposal that covers many areas, including sharing data between organizations (which all research companies do by their nature). Other legislation wants to offer kids an “eraser button” for them to delete what they posted in social media.
- Data Privacy – Planned comprehensive privacy “fixes” include the White House Consumer Privacy Bill of Rights, the FTC privacy report and three Congressional bills. The MRA continues to advocate separating “data security” from “data privacy”. From Howard’s perspective, referring to privacy as a “right” hides the costs and benefits of different levels of privacy and would make it harder to defend the interests of the market research industry. While many groups would like harmonization between the United States, Europe and other markets for sharing data cross borders, the EU wants the US to adopt its full framework, which will never happen—Howard considers this requirement to be an anticompetitive measure that EU businesses use to differentiate themselves from US businesses on privacy protection.
- Respondent Misclassification – Are respondents, focus group participants and mystery shoppers receiving reimbursement as employees of MR firms or as independent contractors? Labor and tax authorities are declaring respondents to be employees in Wisconsin, New York, Texas and Pennsylvania, with other attempts in Maryland and by the U.S. Department of Labor. Why is this happening? “Factor tests” to determine if someone is an employee or independent contractor often fail when assessing focus-group participants or mystery shoppers, who are told to go to locations at specific times and are provided tools to do the commissioned work. Governments are hungry for the extra tax dollars. The MRA’s solution: clarify labor and tax laws to define respondents as independent contractor and not employees. The Research Fairness Act (RFA), by Rep. Mike Kelly (R-PA-03), clarifies this, and Howard is seeking a sponsor for his Research Integrity Tax Relief Act (RITRA). This won’t eliminate the problems at the state level, but will head off difficulties at the federal level.
- The Political Outlook – Howard quickly reviewed the political landscape, pointing out the uncertainty this year poses. “After the election you have a whole bunch of lame ducks voting on issues like tax relief and funding and—if they have been beaten they want to get out of town as quickly as possible—so you can never can be sure what will happen.” Redistricting will lead to tremendous turnover in the House, and a new Presidential administration would lead to changes at the FTC, FCC, Labor and IRS.
- Grassroots – Howard quoted Marc Caplan, author of A Citizen’s Guide to Lobbying: “Few bills, if any, pass solely on their merits. Evidence is nice, but facts do not vote; constituents do.” He urges MRA members to schedule visits with their representatives on the respondent misclassification issue: “Help us prevent an audit of our entire industry. Your personal relationships with your representatives will matter long after this issue is settled.”
It wouldn’t be a legal presentation if I didn’t include a disclaimer. As LaToya said, “This presentation does not constitute legal advice.”