(Approved December 30, 2010) AN ACT

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1 (H. B. 2167) (Conference) (No ) (Approved December 30, 2010) AN ACT To amend Article 14, Article 216, Article 225, and Article 235, and add a new Article 235-A to Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, in order to establish the definition of scanning device as subsection (c) and re-encoder as subsection (i), and to redesignate the remaining subsections to organize them in alphabetical order; to classify identity theft and the illegal use of credit and debit cards as a third degree felony; classify the possession of a scanning device or re-encoder as a fourth degree felony; and to classify the use of a scanning device or re-encoder as a third degree felony. STATEMENT OF MOTIVES Recently, Puerto Rico has experienced an alarming increase in the unlawful use of credit and debit cards due to the existence and availability of advanced technology that allows for the unauthorized taking of another s credit card information. This unlawful practice causes million-dollar losses and affects consumers, merchants, and financial institutions, as well as the banking industry. Scanning devices through which cards are swiped are one of the most common means used to obtain credit or debit card data. These devices are capable of reading magnetic encodings and storing them temporarily or permanently. Once the personal information of the user is obtained, the offender may upload the data to a system that is able to read it and place it onto the blank magnetic strip of another card, thus creating a card clone. This cloned card is used to make payments or withdraw money from an account. The offender may also use the data to pay for goods or services acquired on the Internet or by phone.

2 The Penal Code classifies the illegal use of credit and debit cards as a misdemeanor. The growing incidence of this type of conduct, together with the high economic costs it entails for victims and businesses, compels this Legislative Assembly to amend such provision of the Penal Code in order to increase the classification of identity theft and illegal use of credit and debit cards to a third degree felony. Thus, the newly increased penalties may serve as a deterrent. Likewise, the principle of proportionality shall be maintained between the penalties to be imposed. On the other hand, even though credit and debit card fraud may be currently prosecuted under various provisions of the Penal Code, classifying such conduct as a separate crime will allow us to comply with the principle of legality. In fact, many jurisdictions of the United States of America have enacted statutes that provide criminal penalties for using credit or debit card skimming devices and re-encoders to steal an individual s credit or debit card data. In view of the foregoing, this Legislative Assembly deems it necessary to amend the Penal Code in order to add the possession and use of scanning devices and re-encoders to steal credit and debit card data as a separate crime subject to a higher penalty. BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF PUERTO RICO: Section 1.- Subsections (c) and (f) are hereby added, and the remaining subsections are hereby renumbered and organized in alphabetical order in Article 14 of Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, to read as follows: Article 14.- Definitions. Except as otherwise construed by the context, the following words and phrases contained in this Code shall have the meaning expressed below:

3 (a) (b) (c) Scanning Device.- means a scanner, reader, skimmer, or any other electronic device that is used to access, read, scan, obtain, memorize or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card. (d) (e) (f) (g) (h) (i) Re-encoder.- also known as decoder, means an electronic device that places encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card. (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v)

4 (w) (x) (y) (z) (aa) (bb) (cc) (dd) (ee) (ff) (gg) (hh) (ii) Section 2.- Article 216 of Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, is hereby amended to read as follows: Article Identity Theft. Any person who takes for him/herself a means of identification belonging to another person with the intent to commit any unlawful act shall incur a third degree felony. The court may also impose restitution. For purposes of this crime, a means of identification shall include the following: name; address; telephone number; driver s license number; social security number; employer identification number; credit or debit card number; health insurance card number; passport or immigration card number; mobile telephone electronic serial number; any bank account number; the personal identification number (PIN) of any bank account, telephone, electronic mail

5 ( ), or computer system; place of employment; name of parents; date and place of birth; name and address of place of employment; or any other information that may be used by itself or jointly with others to identify a person, in addition to biometric information such as fingerprints, voice recordings, retinal scans, iris imaging, or any particular physical representation. Section 3.- Article 225 of Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, is hereby amended to read as follows: Article Possession of Instruments for Forging. Any person who makes, invents, creates, or knowingly has in his/her possession any die, plate, or any device, tool, equipment, software program, item, material, goods, property, paper, metal, machine, scanning device or re-encoder, or any supply that is specifically designed or adapted to serve as a scanning device or re-encoder, or any other thing which may be used in the forging of a credit card, seal, document, instrument, or writing shall incur a fourth degree felony. Section 4.- Article 235 of Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, is hereby amended to read as follows: Article Illegal Use of Credit and Debit Cards. Any person who, with the intent to defraud another or to obtain goods and services to which he/she is not legally entitled, uses a credit or debit card knowing that it is stolen or forged, or which has been revoked or canceled, or the use of which is unauthorized for any reason, shall incur a third degree felony. Any person who intentionally possesses a card knowing that the magnetic stripe of such card was forged shall incur a misdemeanor.

6 Section 5.- A new Article 235-A is hereby added to Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, to read as follows: Article 235-A.- Use or Possession of Scanning Devices or Re-encoders (a) Any person who, with the intent to defraud, uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information contained or encoded on the magnetic strip or stripe of a credit or debit card without the permission of the authorized user of such payment card shall incur a third degree felony. (b) Any person who, with intent to defraud, uses a re-encoder to place encoded information on the magnetic strip or stripe of a credit or debit card, on the magnetic strip or stripe of any other card or any electronic medium that allows an authorized transaction to occur, without the permission of the authorized user of the credit or debit card from which the information is being re-encoded shall incur a third degree felony. Section 6.- If any provision of this Act or the application thereof to any person or circumstance were ruled invalid, such ruling shall not impair the remaining provisions of this Act or the application thereof, for each of them is deemed to be severable. Section 7.- This Act shall take effect immediately after its approval.

7 CERTIFICATION I hereby certify to the Secretary of State that the following Act No (H. B. 2167) (Conference) of the 4 th Session of the 16 th Legislature of Puerto Rico: AN ACT to amend Article 14, Article 216, Article 225, and Article 235, and add a new Article 235-A to Act No. 149 of June 18, 2004, as amended, known as the Penal Code of the Commonwealth of Puerto Rico, in order to establish the definition of scanning device as subsection (c) and re-encoder as subsection (i), and to redesignate the remaining subsections to organize them in alphabetical order; to classify identity theft and the illegal use of credit and debit cards as a third degree felony; classify the possession of a scanning device or re-encoder as a fourth degree felony; and to classify the use of a scanning device or re-encoder as a third degree felony. has been translated from Spanish to English and that the English version is correct. In San Juan, Puerto Rico, on this 1 st day of November, Juan Luis Martínez Martínez Acting Director

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