CHARLESTON, W.Va. (Feb. 13, 2023) – On Friday, the West Virginia House gave final approval to a bill that would prohibit government entities from accessing information about firearm and ammunition purchases generated by a credit card merchant code without a warrant in most situations.

Del. Chris Phillips and a coalition of 10 fellow Republicans introduced House Bill 2004 (HB2004) on Jan. 12. The legislation would prohibit any West Virginia governmental entity from accessing or obtaining a record of a transaction involving a credit card that is retrieved, characterized, generated, labeled, sorted, or grouped based on the assignment of a firearms code without a warrant or a subpoena in most situations.

Financial institutions would also be barred from disclosing such information with the same exceptions. Financial institutions could also disclose such information if the customer provides written authorization for disclosure.

HB2004 includes specific requirements for a subpoena requesting such information.

On Feb. 3, the House passed HB2004 by a 95-0 vote. The Senate approved the measure with amendments by a 32-0 vote on March 9. The following day, the House concurred with the Senate amendments. The bill now goes to Gov. Jim Justice’s desk for his consideration.

HB2004 explains the background for this bill in the legislative findings.

“In September of 2022, the world’s three largest payment card networks publicly announced they would assign a unique Merchant Category Code to firearms retailers accepting payment cards for purchases, after members of Congress sent a public letter to networks, pressuring them to adopt the new code. In the letter to payment card networks, federal lawmakers stated that the new Merchant Category Code for firearms retailers would be “[. . .] the first step towards facilitating the collection of valuable financial data that could help law enforcement in countering the financing of terrorism efforts”, expressing a clear government expectation that networks will utilize the new Merchant Category Code to conduct mass surveillance of constitutionally protected firearms, firearm accessories or components, and ammunition purchases in cooperation with law enforcement. The new Merchant Category Code will allow the banks, payment card networks, acquirers, and other entities involved in payment card processing to identify and separately track lawful payment card purchases at firearms retailers in West Virginia, paving the way for both unprecedented surveillance of Second Amendment activity and unprecedented information sharing between financial institutions and the government.

IMPACT ON FEDERAL PROGRAMS

As the legislative findings warn, data collected from this merchant code would almost certainly end up in federal government databases.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In practice, local data collection using ALPRs, stingrays, drones and other spy technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. When the state limits surveillance and data collection, it means less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

Gov. Justice will have until March 29 to sign or veto HB2004. If he takes no action, it will become law without his signature.

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