New Hampshire Rep. Neal Kurk (R-07) introduced H.B. 445, legislation which would provide that, "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." Further, "No individual shall be offered an incentive, denied an opportunity, or in any way treated by a person differently from any other individual as a consequence of providing or withholding such consent."

"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 and radio frequency identification. 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 a "(c) Commercial mobile radio service".

“Reasonable notice” means "notice provided:
(a) In plain English.
(b) In a type size that may be read by an average individual.
(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."

“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."

H.B. 445 exempts:
"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 where the possessor of the personal property has been provided reasonable notice of the use of the device.
III. An electronic tracking device used by an employer in connection with an employment relationship during working hours where the employee has been provided reasonable notice of the use of the device.
IV. An electronic tracking device used by the state or a political subdivision, department, or agency: (a) 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 or county hospital, nursing facility, or assisted living facility. (b) To collect funds for the use of a toll road or bridge it owns and operates. (c) In connection with a credit, debit, or financial account card issued to an individual for use on behalf of the state, political subdivision, department, or agency."

Violators of H.B. 445 "shall be guilty of a class A misdemeanor. Each such act shall constitute a separate offense." Violations can be sued by the state or individuals, "for $1,000 or actual damages, whichever is greater, plus court costs and reasonable attorney's fees, for each violation of this chapter."

Pursuant to the decision of the MRA Government Affairs Committee last month, MRA has taken the position that location privacy demands an opt opt with a fair and appropriate transparency of the tracking activity. We will also be recommending opt in as the best practice of the research profession.

MRA will seek to convince Rep. Kurk to clarify the bill's definition of "consent", to ensure that the bill requires an opt out, not an opt in.