HB 1675-FN – AS INTRODUCED
2012 SESSION
05/04
HOUSE BILL 1675-FN
AN ACT relative to location tracking by electronic communications devices.
COMMITTEE: Criminal Justice and Public Safety
This bill prohibits a person from gathering geolocation information from an electronic communications device without the express consent of the person using the device.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2165
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to location tracking by electronic communications devices.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Location Tracking by Electronic Communications Devices. Amend RSA by inserting after chapter 359-L the following new chapter:
CHAPTER 359-M
LOCATION TRACKING BY ELECTRONIC COMMUNICATIONS DEVICES
359-M:1 Definitions. In this chapter:
I. “Electronic communications device” means any device that:
(a) Enables access to, or use of, an electronic communications system, electronic communication service, remote computing service, or geolocation information service; and
(b) Is designed or intended to be carried by or on the person of an individual or travel with the individual, including, but not limited to, a vehicle the individual drives.
II. “Express authorization” means express affirmative consent after receiving clear and prominent notice that:
(a) Is displayed by the electronic communications device, separate and apart from any final end user license agreement, privacy policy, terms of use page, or similar document;
(b) Provides information regarding what geolocation information will be collected and the specific entities to which the geolocation information may be disclosed; and
(c) Is written in plain English, not exceeding 150 words, and clearly legible by a person with average eyesight, based on the type of electronic communications device being used.
III. “Geolocation information”:
(a) Means any information concerning the location of an electronic communications device that is in whole or in part generated by or derived from the operation or use of the electronic communications device and that may be used to identify or approximate the location of the electronic communications device or the individual that is using the device; and
(b) Does not include any temporarily assigned network address or Internet protocol address of the individual.
IV. “Geolocation information service” means the provision of a global positioning service or other mapping, locational, or directional information service.
359-M:2 Collection and Disclosure of Geolocation Information; Consent Required. No person shall knowingly collect, receive, record, obtain, or disclose to a third party geolocation information from an electronic communications device without the express authorization of the individual using the electronic communications device.
359-M:3 Notice and Revocation Procedure. Not later than 7 days after an individual provides express authorization to a person providing a geolocation information service, the person providing such service shall provide the individual with written notice, displayed by the electronic communications device, that informs the individual that geolocation information is being collected, the nature of the information collected, the identity of any third party to whom it may be disclosed, and the purpose of such disclosure. The notice also shall provide a clear statement of how the individual may revoke consent to the collection, receipt, recording, obtaining, and disclosure of geolocation information relating to the individual.
359-M:4 Exceptions. This chapter shall not apply to:
I. Geolocation information used by an employer in connection with an employment relationship during or after working hours where the employee has been provided reasonable notice of the use of the device.
II. Geolocation information used to locate a person who is incarcerated in the state prison or county jail, is housed in a mental health facility pursuant to a court order after having been charged with a crime, is subject to court-ordered electronic monitoring, or is a resident of a state, county, or private hospital, nursing facility, or assisted living facility.
III. Geolocation information used by the enhanced 911 system or to facilitate an emergency response.
359-M:5 Penalties.
I. Any person convicted of violating this chapter shall be guilty of a class A misdemeanor. Each such act shall constitute a separate offense.
II. An aggrieved individual or the state may bring suit for $1,000 or actual damages, whichever is greater, plus court costs and reasonable attorney’s fees, for each violation of this chapter.
2 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2165
Revised 03/30/12
HB 1675 FISCAL NOTE
AN ACT relative to location tracking by electronic communications devices.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, and New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2013 and each year thereafter. There will be no fiscal impact on state, county, and local revenue, or local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would add RSA 359-M, dealing with location tracking by electronic communications devices and proposes making it a class A misdemeanor to gather geolocation information from an electronic communications device without the express consent of the person using the device. Additionally, the bill provides for civil action for damages, including court costs and reasonable attorney’s fees, for each violation of the chapter. The Branch has no information to estimate how many charges or civil actions would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures but does have information on the cost for processing a class A misdemeanor and civil actions. All costs are estimated based on case weight information from the last needs assessment completed in 2005. The Branch states a class A misdemeanor will cost $59.11 per case in FY 2013 and $61.31 per case in FY 2014 and each year thereafter. The Branch states the civil actions proposed by this bill would be treated as average complex civil cases. The Branch states an average complex civil case will cost $633.81 in FY 2013 and $651.29 in FY 2014 and each year thereafter. The possibility of appeals increases the likelihood the fiscal impact on the Branch will exceed $10,000.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor 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. 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 capped at $2,000 per case, with many 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 New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted, or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The Department of Justice states this bill will have no fiscal impact on the Department. The Department does not typically prosecute the class A misdemeanor offenses created by this bill and if this bill results in a minimal increase in criminal appellate work, this cost could be absorbed by the Department.