CONCORD, N.H. (May 31, 2024) – Yesterday, the New Hampshire House gave final approval to the Firearm Purchaser’s Privacy Act, a bill to 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 legislation now moves to the governor’s desk.

Rep. Jason Janvrin and six cosponsors introduced House Bill 1186 (HB1186) on Nov. 27. The proposed law would prohibit a payment card network from requiring a New Hampshire merchant to use a “firearms code” defined as “the merchant category code 5723, approved in September 2022 by the International Organization for Standardization, for firearms retailers.”

The proposed law would also bar retailers from using such a code voluntarily.

“For the purposes of the sale of firearms, ammunition for use in firearms, and firearms accessories, a firearms retailer may not provide a firearms code to a payment card issuer or payment card network and may only use or be assigned a merchant category code for general merchandise retailers or sporting goods retailers.”

The legislation includes provisions empowering the state attorney general to enforce the law and impose civil penalties for violations.

The House passed the bill by a vote of 203-174. The Senate approved the measure with a technical amendment to further define “firearms code” by a 14-10 vote.  On May 31, the House concurred with the Senate amendment by a 190-179 vote. The bill now moves to Gov. Chris Sununu’s desk for his consideration.

IN EFFECT

Over the 2023-2024 legislative sessions, at least 13 states have passed similar legislation.

In response to legislation like HB1186, the major credit card payment networks have “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 “paused” 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. Sununu will have five days from the date HB1186 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature.

Mike Maharrey

The 10th Amendment

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