TALLAHASSEE, Fla. (April 14, 2023) –  On Monday, a Florida House committee passed a bill that would prohibit financial institutions operating in the state from using a credit card merchant code that would enable the tracking of firearm and ammunition purchases.

The House Commerce Committee and the House Regulatory Reform & Economic Development Subcommittee along with seven Republicans filed House Bill 221 (H221) on Jan. 17. It would prohibit a payment settlement entity, merchant acquiring entity, or a third-party settlement organization from assigning a merchant category code or otherwise classifying a merchant that is a seller of firearms or ammunition separately from general merchandise retailers or sporting goods retailers.

On April 10, the House Commerce Committee passed H221 by a 15-6 vote. A companion bill previous passed the full Senate.

The three major credit card companies have “paused” development of the firearms merchant code, but only because of state bills like H221. In an email to Reuters, a Mastercard representative said such bills would cause “inconsistency” in how the code could be applied by merchants, banks and payment networks. The more states that ban such codes, the more likely this program gets scrapped altogether.

Under the proposed law, the Florida Department of Agriculture and Consumer Services would be empowered to investigate violations of this provision and bring an administrative action seeking to impose an administrative fine on violators.

In September 2022, the International Standards Organization, based in Switzerland, approved a new merchant category code for firearm and ammunition merchants. 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 and ammunition purchases in cooperation with law enforcement.

The legislative findings in H221 state, “The creation or maintenance of records of purchases of firearms or ammunition or the tracking of sales made by a retailer of firearms or ammunition by a nongovernmental entity, including a financial institution, without a substantial and historical business need or a requirement imposed by law, may frustrate the right to keep and bear arms and violate the reasonable privacy rights of lawful purchasers of firearms or ammunition.”

IMPACT ON FEDERAL PROGRAMS

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

Concern about the misuse of federal firearms databases isn’t just paranoia. The Taliban has reportedly used a firearm ownership database created by the U.S. government to track down gun owners and confiscate firearms in Afghanistan. This goes to show that even if you trust the people creating the database, it can fall into the wrong hands. In other words, the very existence of a database is a danger.

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 obtain and store information on millions of Americans including phone calls, emails, web browsing history, location 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

H221 now moves to the House floor for consideration.

TJ Martinell

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