Are Driver’s Licenses Being Scanned Illegally in New Hampshire?

Since writing the first article, Are Convenience Stores Violating Your Privacy, I have been gathering more information and find the Driver License Scanning issue to be quite the bottomless rabbit hole.

Here are some key takeaways:

1. 1. 1. The AG’s office is still trying to get me to go away.
      2. I did have a conversation with the Director of DMV, John Marasco, who says he has concerns.
      3. There is a committee of state legislators that must approve the rules of most departments, but as far as I can tell, the Department of Safety is “exempt” from having its rule-making overseen by the Joint Legislative Committee on Administrative Rules.
      4. It has been reported to me that Macy’s is now scanning driver’s licenses to verify identity during credit card purchases.
      5. (According to another reader) LHS Poll Pad Training in Manchester is instructing people to scan driver’s licenses (must ask first) to verify voter identity:  https://lhsassociates.com/resources/Poll-Pad-Sell-Sheet-(NH)-(1).pdf
      6. We are still not absolutely sure exactly how much information can be scanned off of the license.  One State Representative told me that everything on the front of the license can be scanned.  Others think less information can be scanned.  As taxpayers, I believe we have a right to know.

As noted above, the NH Attorney General’s office isn’t all that interested or concerned. A John R. Davis responded to my RSA 91-A request as follows:

“I am an Assistant Attorney General in the Consumer Protection & Antitrust Bureau (“Bureau”) of the New Hampshire Department of Justice, Office of the Attorney General. I am responding on behalf of the Bureau to your 12/04/2023 email to Ms. Jessica Raymond, of the Bureau, which email is attached below.

For your information, I believe that the Bureau previously, timely responded to your right-to-know request. I believe that the Bureau provided all documents that the Bureau had to provide under the applicable statute. Furthermore, I believe that the Bureau, both in referring you to the Department of Safety (“DoS”) and closing your complaint, acted properly.

Relative to your most recent email below, please be advised of the following:”

I asked the AG the following questions.

Before closing the case, did you confirm the following:

• Verify the equipment “does not visibly identify any personal information, other than driver license number and name”? If so, how did you do this? Please provide documentation to prove this finding. Driver licenses have other personal information on them, including date of birth, address, etc…
• Verify the equipment “does not retain, store or transfer any personal information, other than driver license number and name, for any period of time.” Please provide proof the equipment that is used to scan licenses by Circle K does not retain unauthorized data.
• Please provide proof that you verified the Circle K equipment “does not store any personal information, other than driver license number and name, in a central repository, disaster recovery central repository, such as a cold site or hot site whether on-site or in a remote location.”

The only documentation provided to me was our email exchange and my written complaint. There was no indication that any investigation or equipment testing was or would be done. Should there? Let’s look at the law.

From TITLE XXI Chapter 263 – Drivers’ Licenses

 263:12 Prohibitions. –
It shall be a misdemeanor for any person to:

X. Knowingly scan, record, retain, or store, in any electronic form or format, personal information, as defined in RSA 260:14, obtained from any license, unless authorized by the department. Nothing in this paragraph shall prohibit a person from transferring, in non-electronic form or format, personal information contained on the face of a license to another person, provided that the consent of the license holder is obtained if the transfer is not to a law enforcement agency. Notwithstanding any other provision of law, any person selling alcohol or tobacco who uses due diligence in checking identification to prevent unauthorized sales and purchases of alcohol and tobacco shall not be held responsible for the acceptance of fraudulent identification. Where due diligence is exercised on the part of the seller, the unauthorized purchaser shall be liable for any penalty or fine resulting from the unauthorized sale.

There is no legal reason or legal exception that justifies Macy’s, a convenience store, or LHS Poll Pad Training in Manchester to gather this data in this way. Scanning your driver’s license in New Hampshire is illegal, with these exceptions (emphasis added).

This paragraph shall not prohibit the scanning, recording, retaining, or storing of such information in electronic form collected with the license holder’s consent as part of a sale of merchandise to a pawnbroker, scrap metal dealer, or other secondhand dealer, and submission of such information to law enforcement databases for the sole purpose of identifying sellers of stolen merchandise. The pawnbroker, scrap metal dealer, or secondhand dealer shall not retain the scanned information in electronic form transmitted to a law enforcement database, unless required by local regulation, and shall not furnish the information to anyone except a law enforcement officer. The pawnbroker, scrap metal dealer, or secondhand dealer may maintain in a log or other document the name and address of the person whose license was scanned along with a description of the items the individual sold, pawned, or purchased, and shall allow such log or document to be examined by a law enforcement official upon request.

Absent new information, these businesses are committing misdemeanor offenses every time they scan the barcode on the back of your driver’s license, regardless of your having given consent.

But the State Attorney General either doesn’t have the time to provide the legal exception that allows it or to investigate and prosecute violations if that’s what they are.

Are they too busy working on another frivolous case against James O’Keefe?