HB 478-FN – AS AMENDED BY THE SENATE
04/21/10 1426s
2009 SESSION
04/03
HOUSE BILL 478-FN
AN ACT relative to the regulation of radio frequency identification devices and the illegal use of payment card scanning devices or reencoders.
SPONSORS: Rep. Kurk, Hills 7; Rep. M. Smith, Straf 7; Rep. Eaton, Ches 2; Rep. Coffey, Merr 6; Rep. Tupper, Merr 6; Sen. Letourneau, Dist 19
COMMITTEE: Commerce and Consumer Affairs
This bill prohibits the human implantation of a radio frequency identification device without the individual’s informed, written consent. The bill prohibits the human implantation of such a device onto or into a minor child. The bill also amends the definition of payment card and reencoding for purposes of the crime of using a scanning device or reencoder for fraudulent purposes.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04/21/10 1426s
09-0106
04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the regulation of radio frequency identification devices and the illegal use of payment card scanning devices or reencoders.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Regulation of Radio Frequency Identification Devices. Amend RSA by inserting after chapter 358-S the following new chapter:
CHAPTER 358-T
REGULATION OF THE USE OF RADIO FREQUENCY IDENTIFICATION DEVICES
FOR THE PURPOSE OF TRACKING
358-T:1 Definitions. In this chapter:
I. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, foundation, joint venture, government, government subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.
II. “Radio frequency identification device” means any item or application that is capable of transmitting unique identification or location information through the use of radio waves. Such devices shall not include bar codes, magnetic stripes, or similar markings that do not transmit information using radio waves or commercial mobile radio service as described in 47 U.S.C. section 332.
358-T:2 Human Implantation of Radio Frequency Identification Device Prohibited.
I. No person shall implant or attempt to implant or physically incorporate a radio frequency identification device into or on the body, skin, teeth, hair, or nails of another individual without the prior, informed, written consent of the individual. No person shall implant or attempt to implant or physically incorporate a radio frequency identification device into or on the body, skin, teeth, hair, or nails of a minor child. Use of a bracelet or other readily removable device is not considered implantation or physical incorporation under this section.
II. No individual shall be offered an incentive, denied an opportunity, or in any way treated by a person differently from any other individual as a consequence of providing or withholding such consent.
III. No person shall use the presence or absence of an implanted radio frequency identification device as a basis for discriminating against an individual for any purpose whatsoever, including, but not limited to, employment, housing, insurance, medical care, voting, education, travel, and commerce.
358-T:3 Penalties.
I. Any person convicted of violating this chapter shall be guilty of a class B felony.
II. An aggrieved individual or the state may bring suit for civil penalties for up to $10,000, plus court costs and reasonable attorney’s fees, for each violation of this chapter.
2 Illegal Use of Payment Card Scanning Device or Reencoder. Amend RSA 638:28, I-III to read as follows:
I. “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on [the magnetic strip or stripe of] or in a payment card.
II. “Reencoder” means an electronic device that places encoded information from [the magnetic strip or stripe of] a payment card onto [the magnetic strip or stripe of] or into a different payment card.
III. “Payment card” means a credit card, charge card, debit card, or any other card or device that is issued to an authorized [card] user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
3 Illegal Use of Payment Card Scanning Device or Reencoder. Amend RSA 638:29, I to read as follows:
I. A person is guilty of the crime of using a scanning device or reencoder to defraud when the person knowingly:
(a) Uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on [the magnetic strip or stripe of a] or in a payment card without the permission of the authorized user of the payment card and with the intent to defraud the authorized user, the issuer of the authorized user's payment card, or a merchant; or
(b) Uses a reencoder to place information encoded on [the magnetic strip or stripe of a] or into a different payment card onto [the magnetic strip or stripe of] or into a different card without the permission of the authorized user of the card from which the information is being reencoded and with the intent to defraud the authorized user, the issuer of the authorized user's payment card, or a merchant.
4 Effective Date. This act shall take effect January 1, 2011.
LBAO
09-0106
01/16/09
HB 478-FN - FISCAL NOTE
AN ACT relative to the regulation of radio frequency identification devices and the illegal use of payment card scanning devices or reencoders.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Justice, the Department of Corrections, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill will add RSA chapter 358-T to regulate use of remotely readable devices, including the prohibition of implanting them in humans without consent. The Department states violation of the proposed RSA 358-T:8, I would be a class A misdemeanor and violation of the proposed RSA 358-T:8, II would be a class B felony. In addition, proposed RSA 358-T:8, III provides for civil penalties of up to $10,000, plus costs and attorney’s fees, for each violation of RSA chapter 358-T.
The Branch states the cost of a class A misdemeanor case in the district court is $51.14 in FY 2010 and each year thereafter, the cost of a class B felony case in the superior court is $335.98 in FY 2010 and each year thereafter, and the cost of a civil case in the superior court is $559.43 in FY 2010 and each year thereafter. The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures. However, if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures in FY 2010 and each year thereafter. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor or $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used, the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge and $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many
LBAO
09-0106
01/16/09
assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states this bill may result in an indeterminable increase in general fund expenditures in FY 2010 and each year thereafter. The Department states the criminal offense created by this bill could be prosecuted by the Attorney General’s Office or county attorney’s office. The Department is unable to estimate how many cases would be prosecuted by the Department or appealed to the Supreme Court.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2008 was $32,753. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2008 was $779. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be impacted.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.