MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representatives Owen, Barnett, Bennett, Boyd (19th), Carpenter, Currie, Darnell, Felsher, Ford (73rd), Hobgood-Wilkes, Hopkins, Hulum, Lancaster, McCarty, McLean, Morgan, Newman, Pigott, Read, Scoggin, Shanks, Wallace, Williamson
AN ACT TO CREATE THE "SECOND AMENDMENT FINANCIAL PRIVACY ACT"; TO PROVIDE LEGISLATIVE FINDINGS; TO DEFINE CERTAIN TERMS RELATING TO THE ACT; TO PROHIBIT A FINANCIAL INSTITUTION FROM USING A FIREARMS CODE TO ENGAGE IN THE CERTAIN DISCRIMINATORY CONDUCT IN THE STATE; TO PROHIBIT A FINANCIAL INSTITUTION FROM DISCLOSING A CUSTOMER'S PROTECTED FINANCIAL INFORMATION, EXCEPT OTHERWISE PROVIDED FOR BY MISSISSIPPI LAW OR CUSTOMER CONSENT OF DISCLOSURE; TO AUTHORIZE A PERSON TO BRING A CIVIL ACTION FOR DAMAGES AGAINST ANY FINANCIAL INSTITUTION OR GOVERNMENT ENTITY THAT CAUSES THE PERSON'S PROTECTED FINANCIAL INFORMATION TO BE DISCLOSED IN VIOLATION OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Second Amendment Financial Privacy Act".
SECTION 2. The Legislature finds that:
(a) The Second Amendment to the United States Constitution guarantees the people the right to keep and bear arms;
(b) Article III, Section 12, of the Mississippi Constitution provides that "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons";
(c) In September 2022, the world's three largest payment card networks publicly announced that they would assign a unique Merchant Category Code to firearms retailers accepting payment cards for purchases;
(d) 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;
(e) The new Merchant Category Code will allow the banks, payment card networks, acquirers, and other entities involved in payment card processing to identify and separately track lawful payment card purchases at firearms retailers in the State of Mississippi, paving the way for both unprecedented surveillance of Second Amendment activity and unprecedented information sharing between financial institutions and the government;
(f) This potential for cooperative surveillance and tracking of lawful firearms and ammunition purchases will have a significant chilling effect on citizens wishing to exercise their federal and state constitutional rights to keep and bear arms in Mississippi;
(g) While federal law requires some financial institutions to report transactions that are highly indicative of money laundering or other unlawful activities, there is no federal or state law authorizing financial institutions to surveil and track lawful activities by customers in cooperation with law enforcement; and
(h) Based on the above stated findings, it is the intent of the Legislature to prohibit the misuse of payment card processing systems to surveil, report, or otherwise discourage constitutionally protected firearm and ammunition purchases within the State of Mississippi.
SECTION 3. As used in this act, the following words shall have the meanings as defined in this section, unless the context clearly indicates otherwise:
(a) "Assign" or "assignment" means a financial institution policy, process, or practice that labels, links, or otherwise associates a firearms code with a merchant or payment card transaction in a manner that allows the financial institution or any other entity facilitating or processing the payment card transaction to identify whether a merchant is a firearms retailer or whether a transaction involves the sale of firearms or ammunition.
(b) "Customer" means any person engaged in a payment card transaction that a financial institution facilitates or processes.
(c) "Disclosure" means the transfer, publication, or distribution of protected financial information to another person or entity for any purpose other than to process or facilitate a payment card transaction.
(d) "Financial institution" means an entity involved in facilitating or processing a payment card transaction, including, but not limited to, a bank, acquirer, payment card network, or payment card issuer.
(e) "Financial record" means a record held by a financial institution related to a payment card transaction that the financial institution has processed or facilitated.
(f) "Firearms retailer" means any person or entity engaged in the lawful business of selling or trading firearms or ammunition to be used in firearms.
(g) "Firearms code" means any code or other indicator that a financial institution assigns to a merchant or to a payment card transaction that identifies whether a merchant is a firearms retailer or whether the payment card transaction involves the purchase of a firearm or ammunition. The term "firearms code" includes, but is not limited to, a Merchant Category Code assigned to a retailer by a payment card network or other financial institution.
(h) "Government entity" means any county or municipality, or state board, commission, agency, bureau, department, or any other political subdivision of the state.
(i) "Protected financial information" means any record of a sale, purchase, return, or refund involving a payment card that is retrieved, characterized, generated, labeled, sorted, or grouped based on the assignment of a firearms code.
SECTION 4. A financial institution shall not use a firearms code to engage in the following discriminatory conduct:
(a) Declining a lawful payment card transaction based on the assignment of a firearms code to the merchant or transaction;
(b) Limiting or declining to do business with a customer or potential customer based on the assignment of a firearms code to previous lawful transactions involving the customer or potential customer;
(c) Charging a higher transaction or interchange fee for a lawful transaction, as compared to the fee charged for a similar transaction, based on the assignment of a firearms code; or
(d) Otherwise taking any action against a customer or merchant that is intended to suppress lawful commerce involving firearms or ammunition.
SECTION 5. Notwithstanding any other provision of law to the contrary, a financial institution is prohibited from disclosing a customer's protected financial information unless:
(a) Disclosure is expressly permitted under state law, and the protected financial information is not singled out, segregated, or disclosed based on the assignment of a firearms code;
(b) Disclosure is made pursuant to a valid warrant issued in a criminal investigation, stating the grounds or probable cause for its issuance;
(c) The customer has consented to disclosure; or
(d) Disclosure is made pursuant to a subpoena or to a grand jury subpoena.
SECTION 6. (1) A person may bring a civil action for damages against any financial institution or government entity that causes the person's protected financial information to be disclosed in violation of this act.
(2) If a court finds that a violation of this act has occurred as the result of a civil action filed under subsection (1) of this section, the court shall award reasonable attorney's fees to the aggrieved party. A court may order such other relief, including an injunction, as the court may consider appropriate.
(3) It shall not be a defense to a civil action filed under this act that such information was disclosed to a federal government entity, if such disclosure is neither required nor authorized by federal law or regulation.
SECTION 7. This act shall take effect and be in force from and after July 1, 2023.