HB3840 103RD GENERAL ASSEMBLY

LRB103 26222 SPS 52581 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3840

Introduced 2/17/2023, by Rep. Brad Halbrook

SYNOPSIS AS INTRODUCED:

New Act

Creates the Second Amendment Privacy Act. Provides that a financial institution is prohibited from disclosing a customer's protected financial information when purchasing a firearm or ammunition unless specified conditions apply. Provides that a financial institution may disclose a customer's protected financial information if the customer provides the financial institution with written authorization for the disclosure. Provides that if a subpoena issued by a government entity requires disclosure of a customer's protected financial information, a financial institution may only disclose the information if the subpoena meets specified requirements. Provides that a financial institution may not use a firearms code to engage in discriminatory conduct. Provides that a customer may bring a civil action for damages against any financial institution or government entity that causes the customer's protected financial information to be disclosed in violation of the Act.

A BILL FOR

AN ACT concerning business.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Second Amendment Privacy Act.

Section 5. Definitions. As used in this Act:

"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.

"Customer" means any person engaged in a payment card transaction that a financial institution facilitates or processes.

"Disclosure" means the transfer, publication, or distribution of protected financial information to another person for any purpose other than to process or facilitate a payment card transaction.

"Financial institution means an entity involved in facilitating or processing a payment card transaction, including, but not limited to, a bank, acquirer, gateway, payment card network, or payment card issuer.

"Financial record" means a financial record held by a financial institution related to a payment card transaction that the financial institution has processed or facilitated.

"Firearms retailer" means any person engaged in the lawful business of selling or trading firearms or antique firearms or ammunition to be used in firearms or antique firearms.

"Firearms code" means any code or other indicator 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. "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.

"Government entity" means any State or local government agency or instrumentality.

"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. "Protected financial information" includes information appearing in the financial records of a customer.

Section 10. Protected financial information. A financial institution is prohibited from disclosing a customer's protected financial information when purchasing a firearm or ammunition unless:

(1) disclosure is expressly permitted by law and the protected financial information is not singled out, segregated, or disclosed based on the assignment of a firearms code;

(2) disclosure is made pursuant to a valid warrant issued in a criminal investigation, stating the grounds or probable cause for its issuance;

(3) the customer has consented to disclosure under Section 15; or

(4) disclosure is made in response to a subpoena meeting the requirements of this Act.

Section 15. Written authorization for disclosure.

(a) Notwithstanding Section 10, a financial institution may disclose a customer's protected financial information if the customer provides the financial institution with written authorization for the disclosure. The written authorization described by this Section must contain the following:

(1) a statement that the customer consents to the disclosure of the protected financial information for a specific period;

(2) a statement that the customer has the right to refuse to consent to disclosure;

(3) a statement that the customer understands his or her right to revoke consent at any time before the protected financial information is disclosed;

(4) a description of the financial records authorized to be disclosed; and

(5) the purpose for which disclosure of the protected financial information is authorized.

(b) The written authorization described in this Section may not be required as a condition of doing business or transacting with any financial institution.

Section 20. Requirements for subpoenas.

(a) If a subpoena issued by a government entity requires disclosure of a customer's protected financial information, a financial institution may only disclose the information if the subpoena meets the requirements this of Section.

(b) A subpoena issued by a government entity that specifically requires disclosure of protected financial information shall meet the following requirements:

(1) the subpoena must state that protected financial information is being sought; and

(2) a copy of the subpoena must be served upon the customer as provided by law and the subpoena must contain a certification that the service was executed.

Section 25. Use of protected financial information for discriminatory purpose. A financial institution may not use a firearms code to engage in the following discriminatory conduct:

(1) declining a lawful payment card transaction based on the assignment of a firearms code to the merchant or transaction;

(2) 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;

(3) charging a higher transaction or interchange fee to any merchant or for a lawful transaction, as compared to the fee charged to a similarly situated merchant or for a similar transaction, based on the assignment of a firearms code; or

(4) otherwise taking any action against a customer or merchant that is intended to suppress lawful commerce involving firearms or ammunition.

Section 30. Civil remedies.

(a) A customer may bring a civil action for damages against any financial institution or government entity that causes the customer's protected financial information to be disclosed in violation of this Act. For each violation, the individual may recover against any person who violates this Act liquidated damages of $30,000.

(b) Any person aggrieved by a violation of Section 25 may bring a civil action for damages. The person may recover liquidated damages of $30,000 or actual damages, whichever is greater.

(c) If a court finds that a violation of this Act has occurred as the result of a civil action filed pursuant to subsection (a) or subsection (b), 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.

(d) It shall not be a defense to a civil action filed under this Act that the information was disclosed to a federal government entity if the disclosure is neither required nor authorized by a federal law or regulation.

(e) Any action under this Act is barred unless the action is commenced within 5 years after the violation occurs.

(f) The remedies provided in this Act are the exclusive remedies for violations of this Act.

Section 35. Contractual authority of the State. In selecting a financial institution to provide a financial service or product to this State related to payment card processing, the State Treasurer may disqualify a financial institution from the competitive bidding process or from any other official selection process if:

(1) during the past 5 years a court of competent jurisdiction has entered an order or opinion finding that the financial institution violated this Act;

(2) during the past 5 years the financial institution has admitted to violating this Act in the records of a court or other official proceeding; or

(3) the financial institution has publicly stated that it has adopted or intends to adopt policies or practices that violate this Act.

Section 40. Scope. Nothing in this Act may be construed or applied in a manner that violates or conflicts with superseding federal law.

Section 45. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.