HB 445-FN – AS AMENDED BY THE HOUSE
HOUSE BILL 445-FN
This bill prohibits the use of electronic tracking devices to track an individual without the consent of the individual or a court order.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the regulation of electronic tracking devices.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Regulation of the Use of Electronic Tracking Devices. Amend RSA by inserting after chapter 358-S the following new chapter:
REGULATION OF THE USE OF ELECTRONIC TRACKING DEVICES
358-T:1 Definitions. In this chapter:
I. “Electronic tracking device” means any item, application, or mark that is passively or actively capable of transmitting electronically an individual's location, or is capable of following or plotting the path of an individual, including, without limitation, devices using global position satellites. An electronic tracking device shall not include the following:
(a) Bar codes or similar markings that do not transmit information.
(b) Locating technology used by the enhanced 911 system or to facilitate an emergency response.
(c) Commercial mobile radio service as described in 47 U.S.C. section 332 when used to provide such service.
II. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability corporation, association, foundation, joint venture, government, government subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.
III. “Reasonable notice” means notice provided:
(a) In plain English.
(b) In a type size that may be read by an average individual, considering the physical location of the individual in relation to the type.
(c) In person, by a label attached to the personal property containing the electronic tracking device, by electronic means, or by poster at the entrances to real property.
IV. “Track” means to locate, follow, or plot the path of an individual or personal property owned by, or in the lawful possession of, the individual by means of an electronic tracking device.
358-T:2 Use of Electronic Tracking Devices Prohibited. Except as otherwise provided in this chapter, no person shall use an electronic tracking device to track an individual without the consent of the individual or the parent or legal guardian of the individual, or a valid court order.
358-T:3 Exceptions. This chapter shall not apply to:
I. An electronic tracking device that tracks personal property exclusively and is activated solely for that purpose in order to locate the property in cases, such as rental cars, where the owner has reason to believe the property is being used in violation of a contract governing its use; provided, however, that where such activation occurs and an individual has been tracked, the burden of proving that the purpose of the activation was to locate the property shall fall on the owner.
II. An electronic tracking device that tracks personal property and is used on real property by the owner or lessee of that real property.
III. An electronic tracking device used by an employer on or within the employer’s personal or real property, in connection with an employment relationship or work-related functions, during or after working hours, upon reasonable notice to the employee.
IV. An electronic tracking device used by a nursing facility, assisted living facility, the state, or a political subdivision, department, or agency:
(a) To locate a person who is a resident of a nursing facility or assisted living facility, incarcerated in the state prison or county jail, housed in a mental health facility pursuant to a court order after having been charged with a crime, subject to court-ordered electronic monitoring, or resident of a state or county hospital.
V. An electronic tracking device that is affixed to products for use in supply chain security or to ensure product integrity, regardless of whether such device incidentally allows tracking of employees, contracted distribution agents, or other persons who may accompany the products. This provision shall not be construed to permit the tracking of consumer purchases at the retail level.
VI. An electronic tracking device the use of which is activated by or at the request of an individual, relates to the individual, and locates the individual but does not follow or plot the path of the individual or personal property owned by or in the lawful possession of the individual. For the purpose of this subparagraph, the consent of one individual in a motor vehicle shall be considered consent by all individuals in that motor vehicle.
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.
HB 445 FISCAL NOTE
AN ACT relative to the regulation of electronic tracking devices.
The Judicial Branch, Judicial Council, and New Hampshire Association of Counties state this bill, as amended by the House (Amendment #2012-0084h), may increase state and county expenditures by an indeterminable amount in FY 2012 and each year thereafter. There is no fiscal impact on local expenditures, or county and local revenue.
The Judicial Branch states this bill adds RSA 358-T to regulate use of electronic tracking devices. RSA 358-T:4,I establishes a misdemeanor A for violation of various regulations and RSA 358-T:4,II allows an aggrieved individual or the state to sue for $1,000 or actual damages plus costs and attorney fees for each violation. The Branch states this bill could result in an increase in costs to the Branch by adding the misdemeanor A and complex civil cases. The Branch has no information to estimate how many cases will be brought but does have estimated costs for processing a misdemeanor A case and a complex civil case. The Branch states a misdemeanor A case costs $60.03 per case in FY 2012 and $60.88 per case in FY 2013 and each year thereafter. A complex civil case costs $640.23 in FY 2012 and $648.08 in FY 2013 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 $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 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, prosecuted or incarcerated as a result of this bill. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000.
The Department of Justice states this bill will have no fiscal impact on the Department as misdemeanor charges are typically prosecuted by local or county prosecutors.