FRANKFORT, Ky. (Mar. 18, 2024) Last week, the Kentucky Senate gave final approval to 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.
Rep. Derek Lewis and three cosponsors introduced House Bill 357 (HB357) on Jan. 24. Titled the Second Amendment Privacy Act, the legislation would prohibit financial institutions from requiring or incentivizing a merchant category code that distinguishes a firearms retailer from other retailers. It would also bar financial institutions or credit card processors from independently assigning the same.
The bill would also prohibit any government agency from “knowingly and willfully keeping or causing to be kept any list, record, or registry of privately owned firearms or any list, record, or registry of the owners of the firearms, except for those records kept during the regular course of a criminal investigation and prosecution or as otherwise required by law.”
The State Attorney General would have the authority to enforce the provisions.
On Feb. 27, the House passed HB357 by a 78-18 vote. On Mar 13, the Senate concurred with a vote of 31-7, sending the bill to Gov. Andy Beshear’s desk.
Mississippi, Idaho, North Dakota, Montana, Texas, and Florida passed similar laws during the 2023 legislative session.
IN EFFECT
In response to legislation like this, major credit card payment networks “paused” implementation of the firearms merchant code. 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.
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 more states that ban such codes, the more likely this program gets scrapped permanently.
IMPACT ON FEDERAL PROGRAMS
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 creates 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
Gov. Andy Beshear will have 10 days after transmittal (excluding Sunday) to sign or veto HB357, or it becomes law without his signature.
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