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, Bounds, Crawford, Stamps
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 STATE AGENCY OR OTHER POLITICAL SUBDIVISION OF THE STATE, OR ANY OTHER PERSON, PUBLIC OR PRIVATE, FROM KEEPING ANY RECORD OF PRIVATELY OWNED FIREARMS, OR REGISTRY OF THE OWNER OF THOSE FIREARMS; TO PROHIBIT A FINANCIAL INSTITUTION FROM USING A FIREARMS CODE TO ENGAGE IN CERTAIN DISCRIMINATORY CONDUCT IN THE STATE; TO AUTHORIZE THE ATTORNEY GENERAL TO INVESTIGATE ALLEGED VIOLATIONS OF THIS ACT; TO AUTHORIZE THE ATTORNEY GENERAL TO PURSUE AN INJUNCTION AGAINST ANY ENTITY OR INDIVIDUAL 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, Mississippi Constitution of 1890, 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 International Organization for Standardization (ISO), based in Switzerland, approved a new merchant category code for firearm and ammunition merchants;
(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) 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;
(f) 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;
(g) The creation or maintenance of records of purchases of firearms or ammunition or the tracking of sales made by a retailer of firearms or ammunition by a nongovernmental entity, including a financial institution, without a substantial and historical business need or a requirement imposed by law, may frustrate the right to keep and bear arms and violate the reasonable privacy rights of lawful purchasers of firearms or ammunition; 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) "Customer" means any resident of Mississippi engaged in a payment card transaction that a financial institution facilitates or processes.
(b) "Disclosure" or "disclose" means the transfer, publication, or distribution of protected financial information to another person or entity for any purpose other than: (i) to process or facilitate a payment card transaction; or (ii) to take any actions related to dispute processing, fraud management, or protecting transaction integrity from concerns related to illegal activities, breach or cyber risks.
(c) "Financial institution" means an entity involved in facilitating or processing a payment card transaction, including, but not limited to, a bank, an acquirer, payment card network, or payment card issuer.
(d) "Financial record" means a record held by a financial institution related to a payment card transaction that the financial institution has processed or facilitated.
(e) "Firearms retailer" means any person or entity physically located in the State of Mississippi engaged in the lawful business of selling or trading firearms or ammunition to be used in firearms.
(f) "Firearms code" means the Merchant Category Code 5723 approved in September 2022 by the International Organization for Standardization for firearms retailers.
(g) "Government entity" means any county or municipality, or state board, commission, agency, bureau, department, or any other political subdivision of the state.
(h) "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. (1) Except for those records kept during the regular course of a criminal investigation and prosecution or as otherwise required by law, a state governmental agency or local government, special district, or other political subdivision or official, agent, or employee of the state or other governmental entity or any other person, public or private, other than the owner or owner's representative, may not knowingly and willfully keep or cause to be kept any list, record, or registry of privately owned firearms or any list, record, or registry of the owners of those firearms.
(2) A financial institution or its agent may not require the usage of the firearms code in a way that distinguishes a firearms retailer physically located in the State of Mississippi from general merchandise retailers or sporting goods retailers.
(3) A financial institution may not discriminate against a firearms retailer by declining a lawful payment card transaction based solely on the assignment or nonassignment of a firearms code; provided that a financial entity may decline or otherwise refuse to process the transaction on the basis of the firearms code only if necessary to comply with this section or if requested by the customer or due to fraud controls or merchant category exclusions offered by a financial entity for the purpose of expenditure control or corporate card control.
(4) Except as otherwise required by law or regulation, a financial institution may not disclose a financial record, including a firearms code that was collected in violation of this act, unless the disclosure of such financial record or firearms code was based on a good-faith conclusion that the entity's action was required by applicable law or regulation.
(5) Nothing in this section shall limit the ability of a financial institution to negotiate with responsible parties or otherwise impair the financial institution's actions related to dispute processing, fraud management, protecting transaction integrity from concerns related to illegal activities, breach or cyber risks.
SECTION 5. (1) The Attorney General may investigate alleged violations of this act and, upon finding a violation, shall provide written notice to any individual or entity, public or private, believed to be in violation of this act. Written notice to any commercial entity shall be made to the entity's registered agent pursuant to Section 79-35-13. Upon receipt of such written notice from the Attorney General, the entity shall have thirty (30) calendar days to cease any violation of this act.
(2) Either a firearms retailer physically located in Mississippi whose business was the subject of an alleged violation of this act or a customer who transacted at a firearms retailer physically located in Mississippi whose business was the subject of an alleged violation of this act, may petition the Attorney General to investigate the alleged violation in accordance with subsection (1) of this section.
(3) (a) If an individual or entity is found to be in violation of this act and fails to cease the violating activity after the expiration of thirty (30) calendar days from the receipt of written notice by the Attorney General's office, the Attorney General may pursue an injunction against any individual or entity, public or private, alleged to be in violation of this act. The Attorney General may pursue an injunction pursuant to this subsection in chancery court in the judicial district where the alleged violation occurred against the individual or entity in alleged violation of this act.
(b) If a court finds that an individual or entity continues to be in violation of this act after thirty (30) calendar days from receiving written notice from the Attorney General in accordance with subsection (1) of this section, then the court shall enjoin the individual or entity from continuing the activity found to be in violation of this act.
(c) If an individual or entity knowingly and willfully fails to comply with an injunction as provided in paragraph (b) of this subsection within thirty (30) days after being served with the injunction, then the Attorney General, upon petition to the court, may recover on behalf of the state a civil penalty in a sum not to exceed Ten Thousand Dollars ($10,000.00) per violation of an injunction issued pursuant to paragraph (b) of this subsection, committed after the expiration of the period of thirty (30) days after the entity was served with the injunction. In assessing such a penalty, the court shall consider factors, including the financial resources of the violator and the harm or risk of harm to the Second Amendment rights resulting from the violation. The Attorney General may also recover, in addition to the civil penalty pursuant to this subsection, investigative costs and a reasonable attorney's fee. Any order assessing a penalty for violation of this act pursuant to this paragraph shall be stayed pending appeal of the order.
(d) The remedies set forth in this act shall be the exclusive remedies for violation of this act.
(e) It shall be a defense to a proceeding initiated pursuant to this act that such firearms code was required to be used based on a good-faith conclusion that the entity's disclosure or action was required by applicable law or regulation.
SECTION 6. This act shall take effect and be in force from and after January 1, 2024.