Gun Owners' Privacy
- EPIC Urges Federal Health Agency to Safeguard Mental Health Records: In comments to the Department of Health and Human Services, EPIC underscored the importance of medical privacy, particularly concerning mental illness. In response to President Obama's plan to reduce gun violence, the federal agency is considering allowing states to report certain mental illness information to the FBI for inclusion in National Instant Criminal Background Check System. EPIC warned that the proposal could result in incorrect determinations and may also discourage people from receiving medical care. EPIC recommended that the federal agency: (1) require that states be held accountable for disclosing excess medical information; (2) requires that states notify the FBI of incorrect or outdated mental illness record; and (3) encourage states to maintain mental health record accuracy. For more information, see EPIC: Medical Privacy and EPIC: Gun Owners' Privacy . (Jun. 11, 2013)
- DOJ Gun Privacy Stance Inconsistent. The FBI has launched a new background-check system that notifies national security agents when suspects on its terrorist watch list attempt to buy guns, but regulations prohibit those officials from obtaining details if the transaction occurs, federal officials say. The rules are the result of Attorney General John D. Ashcroft's interpretation of the Brady gun-control law, which bars authorities from sharing information with investigators about legal gun buyers and does not prohibit terrorism suspects from buying firearms, officials said. However, this policy highlights the inconsistencies within the Department of Justice's approach to privacy. While the DOJ is willing to protect suspected terrorist's right to privacy when buying guns, they are far less accommodating when it comes to airline passengers, library patrons, or privacy of financial transactions. (Nov. 18, 2003)
Most often debates concerning firearms center around who has the right to acquire a firearm. However, more recently, the debate has focused on the right of legal gun purchasers to maintain their anonymity. Some gun-control lobbyists argue that if records of gun owners were made available, then this increased regulation of weapons would decrease potentially violent crimes. Taking the opposite view, other advocates believe it is their legal right to own and use a firearm, and that anonymity is critically linked this ownership. They assert that the disclosure of gun ownership records could provide a potential road map for criminals in search of firearms, as well as potential for neighborhood gossip. Gun ownership organizations, such as the Texas State Rifle Association and the National Rifle Association, argue that the release of information about licensed concealed handgun holders may create a larger illegal secondary market for gun resale, which in turn would create a more dangerous society.
The purpose and scope of this page is to emphasize that privacy in gun ownership--who purchases a gun, who owns a gun, and what type of gun--is highly protected at the federal level. Many of these federal policies, as implemented by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), are designed both to regulate the gun industry, while also protecting the privacy of the gun purchaser. For example, if an individual wishes to maintain complete anonymity in purchasing a firearm, it is possible for the purchaser to legally acquire a gun through a secondary market, such as a gun show or swap meet, without having to create a record of his purchase. Furthermore, the ATF is statutorily barred from sharing records of a gun purchase, unless this information is needed as part of an on-going investigation. Even with mandatory background checks, as mandated by the Brady Handgun Violence Protection Act of 1993, federal regulations are implemented in such a way as to protect the privacy of a gun purchaser as much as possible. For example, the Department of Justice has limited the retention of Brady background checks to just 24 hours, barring a few narrow exceptions.
While it is possible for a person to legally purchase a firearm on the secondary market without revealing personal information, it is not possible for the same individual to open a U.S. bank account without providing personally identifying information, including name, address, date of birth, and often social security number, which is retained indefinitely for later verification purposes. Similarly, contrary to the background checks of a gun purchaser, federal government agencies are permitted to disclose personal financial information about a bank customer to another federal government agency, and there is no time-limit on the retention of these records.
Congress and federal agencies have enacted significant privacy-protective legislation in order to preserve Second Amendment rights, and this degree of protection could be used to defend fundamental rights, such as First Amendment rights to anonymous expression, Fourth Amendment rights against forms of searches and seizures, and Fourteenth Amendment due process rights.
This web page derives from a paper written by University of Pennsylvania School of Law student Eva Gutierrez.
In order to better understand the societal and legislative history of privacy in gun acquisition, it is useful to recount the chronology of gun legislation and the development of gun-related organizations in the U.S. Regulation of firearms began to increase in the 1930s, but restrictions were eased in the 1980s. While the early 1990s saw an increase in gun purchase regulation, more recent legislation has focused on the protection of the privacy of gun owners. The following is a timeline of important federal legislation and national organizations tied to the issue of gun control.
- 1791 Ratification of the Second Amendment: It states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
- 1871 Establishment of the National Rifle Association (NRA): Union soldiers Colonel William C. Church and General George Wingate founded the NRA to "promote and encourage rifle shooting on a scientific basis." General Ambrose Burnside, who was also the former governor of Rhode Island and a U.S. Senator, served as the NRA's first president.
- 1934 National Firearms Act: Alarmed by the rise of the gangster culture during prohibition, President Franklin D. Roosevelt initiated this act to eliminate automatic-fire weapons from the American public. Other firearms, such as short-barreled shotguns and rifles, gun parts (e.g., silencers), as well as other "gadget-type" firearms (e.g., those hidden in canes) were also targeted. All gun sales and gun manufacturers were given a $200 tax (particularly expensive during the Great Depression, the equivalent of a $2,525 tax today) on each firearm, and all buyers were required to fill out paperwork subject to approval by the U.S. Department of Treasury. Paying the tax required registering the weapon, which was intended to discourage ownership of such weapons without actually outlawing them.
- 1938 Federal Firearms Act: Congress aimed this act at those involved in selling and shipping firearms through interstate or foreign commerce channels. Anyone involved in the selling of firearms was required to obtain a Federal Firearms License from the Secretary of Commerce. Retailers were also required to record the names and addresses of everyone to whom they sold guns and were prohibited from selling to those individuals who were convicted of certain crimes or lacked a permit.
- Gun Control Act of 1968: The assassination of President John F. Kennedy, who was killed by a mail-order gun that belonged to Lee Harvey Oswald, inspired this major revision to federal gun laws. The subsequent assassinations of Martin Luther King and Robert Kennedy fueled its quick passage. License requirements were expanded to include more dealers, and more detailed record keeping was expected of them. Interstate handgun sales were restricted, and the list of those prohibited from acquiring a firearm expanded to include individuals convicted of felonies, those found mentally incompetent, and drug users. The key element of this act was the prohibition of mail order sales of rifles and shotguns. Up until the act, mail order consumers only had to sign a statement that they were over 21 years of age for a handgun. In addition this act required licensed firearm dealers to maintain records regarding the sale of firearms, which creates an informal national firearm registration.
- 1972 Creation of the Bureau of Alcohol Tobacco and Firearms (ATF): Enforcement of the Gun Control Act was given to the U.S. Department of the Treasury's Alcohol and Tobacco Tax Division of the Internal Revenue Service. The organization replaced "tax" with "firearms," nearly doubled in size, becoming the Bureau of Alcohol, Tobacco and Firearms (ATF).
- 1976 Arms Export Control Act: This act gives the President the authority to control imports and exports of "defense articles," including firearms and ammunition, to further world peace and the security and foreign policy of the United States. The act requires permits and licenses to import and export such articles, and imports to and exports from certain "proscribed countries" are prohibited. The U.S. Department of the Treasury administers the import controls of the act, delegating this authority to ATF. The State Department and the Customs Service administer and enforce the export controls of the act.
- 1986 Firearms Owners' Protection Act: This act eased restrictions on gun sellers and the sale of some guns. It amended the Gun Control Act of 1968 to redefine "gun dealer," now excluding those making occasional sales or repairs. It also repealed certain recordkeeping requirements for the sale of ammunition (which had included the name, age, and address of the purchaser, as well as the date of sale), and permitted mail-order sale of ammunition. The act imposed additional penalties for persons using a firearm during certain crimes and persons with robbery or burglary convictions who are illegally shipping guns.
- 1990 Gun Free School Zones Act: This act flatly prohibited the possession or discharge of a firearm within a school zone, increasing criminal penalties. The law passed in 1990, forbidding possession of a firearm within 1,000 feet of a school. In United States v. Lopez, the U.S. Supreme Court ruled that Congress had exceeded its authority under the Commerce Clause when it passed such an act. In response, over 40 states outlawed the possession of a firearm within 1,000 feet of a school.
- Brady Handgun Violence Prevention Act of 1993: This legislation was proposed after the attempted assignation of President Ronald Regan. The act initially imposed a five-day waiting period, and requires a background check before a licensed gun importer, manufacturer or dealer can sell or deliver a handgun to an unlicensed individual. Beginning in November 1998, the act now necessitates an immediate background check run by the FBI's National Instant Criminal Background Check System. The new background check system applies to all firearms and allows checks to be done over the phone or electronically with results returned immediately in most cases. This act is one of the most critical pieces of legislation pertaining to privacy in gun ownership records. Records were permitted to be retained for 180 days by federal officials, but then must be destroyed.
- 1994 Violent Crime Control and Law Enforcement Act: Commonly referred to as the "Assault Weapons Ban," this legislation banned the manufacture, possession, and importation of new semiautomatic assault weapons and large-capacity ammunition feeding devices for civilian use. It also prohibits juveniles from possessing or selling handguns and directs the attorney general to evaluate proposed and existing state juvenile gun laws.
- President Clinton Reduces Retention of Brady Checks to 90 days: In April of 2000, President Bill Clinton reduced the amount of time that Brady background check records could be retained by federal officials from 180 days to 90 days, increasing the privacy protection of gun purchasers. This policy was to go into effect in June 2001.
- Department of Justice Reduces Retention of Brady Checks to 24 hours: In 2001, the Department of Justice reduced the amount of time federal officials are permitted to retain Brady background check records on gun purchasers from 90 days to just 24 hours.
- ATF moved to the Department of Justice: Under the Homeland Security Act of 2002, the ATF is moved from an agency within the Department of the Treasury to and agency within the Department of Justice.
As indicated above, the critical pieces of federal legislation regulating firearms traffic into, from and within the U.S. are the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act. Authority to administer and enforce these laws rests with the Secretary of the Treasury, and now the U.S. Attorney General. The Secretary has delegated responsibility to enforce the Gun Control Act, the National Firearms Act, and the importation provisions of the Arms Export Control Act to the Bureau of Alcohol, Tobacco and Firearms (ATF).
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is a law enforcement agency within the Department of Justice. Historically, the ATF was an agency within the Department of Treasury, however, effective January 24, 2003, as part of the Homeland Security Act of 2002, ATF law enforcement and the regulatory responsibility relating to firearms and explosives transferred from the Department of Treasury to the Department of Justice. A major part of the responsibilities of the ATF is to reduce the incidence of violent crime and protect the public. The current director of the ATF, Bradley A. Buckles, asserts that it is the agency's mission to enforce federal laws and regulations relating to alcohol, tobacco, firearms, explosives and arson by working directly and in cooperation with others to: "suppress and prevent crime and violence through enforcement, regulation, and community outreach; ensure fair and proper revenue collection; provide fair and effective industry regulation; support and assist federal, state, local, and international law enforcement; and provide innovative training programs in support of criminal and regulatory enforcement functions."
The responsibility of the ATF to regulate the gun industry, is a critical task. Statistics show that as of December 30, 2000, there were 103,411 Federal Firearms Licensees (those authorized to conduct commerce in firearms) in the U.S. In the 2002 fiscal year, the ATF conducted compliance inspections of approximately 6,000 licensees, resulting in the detection of more than 8,200 violations and nearly 900 referrals to law enforcement.
As stated, the ATF is governed primarily by three statutes, and for the purpose of this analysis of privacy issues in gun ownership, the Gun Control Act of 1968 (GCA) is the most important, proscribing how gun acquisition and related records should be regulated. The GCA requires that all persons engaging in the business of manufacturing, importing, or dealing in firearms must obtain a Federal Firearms License (FFL). By requiring these licenses, the ATF regulates importers, manufactures, distributors, and retail dealers; however, the definition of "retail dealers" limits the ATF's coverage, and thus, its ability to regulate all firearm purchases, allowing potential purchasers to maintain. For example, the GCA specifies that only persons who deal in firearms as a regular course of trade with the principal objective of livelihood may be considered a "retail dealer" and that "such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms." Therefore, many firearm purchases may go unregulated and unrecorded - the purchaser is able maintain complete anonymity. Researchers Henry Ruth and Kevin Reitz note that due to this definition of "retail dealer," the ATF is prevented from regulating both the formal and informal secondary market of gun acquisition. Therefore, swap meets, flea markets, and gun shows are held each year and are unmonitored at the federal level, except for those federal licensee dealers who participate in them. Thus, if a gun purchaser wishes to purchase a firearm and maintain the privacy of that purchase, there are easy, accessible avenues he can pursue.
The ATF's ability to regulate gun acquisition is further restricted by the GCA due to the agency's inability to transfer records of gun purchases. The GCA requires licensed sellers, manufactures and importers to create and maintain records of gun purchases. The statute states that it is unlawful for any licensed importer, manufacturer, dealer, or collector to sell any firearm "to any person unless the licensee notes in his records, the name, age, and place of residence of such person if the person is an individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity." While this may infringe on some of the anonymity that a gun purchaser wishes to maintain, the transfer of such information is highly restricted, thus guarding the purchaser's privacy. For example, the GCA prevents the ATF from transferring any of these records from being recorded at or transferred to "a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof." Furthermore, the statute prohibits the establishment of any federal system of registering firearms, firearm owners, or firearm transactions or dispositions. The only exception to these prohibitions is federal inquiry into the disposition of any firearm in the course of a criminal investigation.
The GCA provides even further restrictions on the ATF's ability to maintain and compile records on a gun purchase. For example, except for court-ordered warrants and for records necessary for criminal investigations, the statute prohibits ATF compliance personnel from inspecting the inventory and records of a licensed firearm manufacturer, importer, or dealer more than once a year. While each licensed seller is required to maintain a report on multiple sales of firearms to an unlicensed person and forward the report to a local or state law enforcement agency, this agency cannot then disclose any contents to any person or entity, and more importantly, must destroy any record of the contents no more than 20 days after a record is received. The only exception to this provision is if the purchaser of the firearm is barred by federal law from acquiring a firearm or shipping one interstate. Thus, while there are some infringements on the privacy surrounding a firearm purchase, the infringements are quite restricted. Essentially only the firearm retailer or licensee has record of a gun purchase, and if such record needs to be forwarded to another agency for very limited purposes, this record must be destroyed within 20 days.
It is important to consider the FFL's record keeping requirements and their implications on the gun purchaser's privacy. When purchasing a firearm from an FFL, a Form 4473 (also known as the "Yellow Form"), as required by the ATF. The dealer must also record the sale in his transaction log. Form 4473 contains the name, address, NICS background check transaction number, serial number and model of the firearm, and a short federal affidavit stating that the purchaser is eligible to purchase firearms under federal law. Lying on this form is a felony and can be punished by up to five years in prison in addition to fines, even if the transaction is denied by NICS. The dealer must keep the Form 4473 for twenty years and is subject to inspection by the ATF to ensure compliance, but not more than once annually. The dealer also records all information from the form 4473 into his transaction log. A dealer must keep this log the entire time he is in business and is required to surrender the log to the ATF upon retirement from the firearms business. This record-keeping system creates an informal national firearm registration. While it is not centralized, it is important to note that the information of a gun purchaser is held by the retail dealer. Some have argued for a centralized federal registration system of all firearms, but so far this has not been accepted.
- Gun Control Act of 1968, 18 U.S.C.A. § 921, et seq. (2003).
- 1934 National Firearms Act, 26 U.S.C.A § 56, et seq. (1990).
- 1976 Arms Export Control Act, 22 U.S.C.A § 2278, et seq. (1999).
- About the ATF.
- ATF Firearms Statistics.
- Henry Ruth & Kevin Reitz, The Challenge of Crime: Rethinking Our Response 183 (Harvard University Press, 2003)
- Record Retention, 27 C.F.R. § 178.129 (2000).
The ATF is also regulated by the Brady Handgun Violence Prevention Act (Brady Act), which imposes a mandatory background check requirement. The Brady Act became effective in 1994, requiring licensed dealers (i.e., holders of Federal Firearms Licenses or "FFLs") to initiate a background records check of prospective handgun purchasers, and its coverage was extended in November 1998 to all guns. The history of the Brady Act is tied to the attempted assassination of President Ronald Regan on March 30, 1981, during which his press secretary Jim Brady was shot and seriously wounded. Originally, the Brady Act imposed a five day waiting period through an interim provision, requiring that all FFLs conduct background checks on all gun purchasers. Five years after the Brady Bill was signed into law, the National Rifle Association (NRA) successfully lobbied Congress to insert a provision into the Brady Act that ended the five day waiting period. The interim provision of five years was necessary to give law enforcement officials time to create the National Instant Check System (NICS). NICS is a federal database of criminal records that allows background checks to be conducted instantly, and therefore guns may be transferred to the purchaser within minutes. The goal of NICS is to ensure the expedient and efficient transfer of firearms to citizens while denying transfers to individuals who are prohibited under the Brady Act from receiving firearms.
As stated, the Brady Act directs the Attorney General to establish a national background check system that any FFL may contact, whether by telephone or other electronic means, to verify immediately whether the sale of a firearm to a prospective purchaser would violate state or federal law. The FBI instituted NICS to automate the background check process on the sale of firearms by FFLs, as part of this permanent provision of the Brady Act. The law requires that NICS (1) assign a unique identification number (a NICS transaction number (NTN)), to each transfer; (2) provide the FFL with the NTN; and (3) destroy all proceed records in the system (other than the NTN and the date that the NTN was assigned).
When conducting background checks, law enforcement officials determine whether the buyer is prohibited from buying or possessing a firearm under the GCA or state law. Federal law prohibits the following categories of persons from buying or possessing firearms: "those under indictment for, or convicted of, a crime punishable by imprisonment for a term exceeding one year; fugitives from justice; users of controlled substances; persons adjudicated as "mental defective" or committed to mental institutions; illegal aliens; individuals dishonorably discharged from the military; those who have renounced their United States citizenship; persons subject to a court order restraining a person from harassing, stalking, or threatening an intimate partner or the child of the intimate partner; or, those convicted of a domestic violence misdemeanor."
The background check process varies depending on whether or not a state has agreed to be a point of contact (POC) for these checks. In states that agree to conduct Brady background checks, the FFL contacts the state POC for a NICS check rather than contacting the FBI. A state POC is a state agency that agrees to conduct Brady background checks itself, by checking both NICS and its own state records, on prospective gun purchasers. Currently, 15 states serve as a full POC for NICS (checks on handguns and long guns), 11 states serve as partial POC for NICS (states perform NICS and state records checks for handgun purchases; and FBI processes its own NICS checks for long gun purchases) and 27 states perform no Brady checks themselves.
In performing a Brady check, a state POC will access the state's independent criminal history database, as well as the NICS system. NICS provides access to millions of criminal history records from all 50 states and the District of Columbia. A state's database typically contains not only the state's records which are part of the NICS databases, but also the state's records which may not be part of NICS. Many states also have access to records about people in the other prohibited categories, such as those who have been involuntarily committed to a mental institution or are under a domestic violence restraining order. Thus, just processing a NICS check does not provide full coverage as a background check. This presents a weakness in NICS because a great deal of relevant information is held at the state level, and not all states are willing to serve as POCs.
In states that have not agreed to serve as state POC, the FFL contacts an FBI Call Center, usually via a toll free telephone number, to request a background check. The Call Centers are linked to the FBI's NICS Operations Center that search NICS' three national databases: (1) the National Crime Information Center 2000, which contains files on fugitives and persons subject to protection orders; (2) the Interstate Identification Index (III), which is an index-pointer system for state criminal history records; and (3) the NICS Index, which contains other disqualifying records (e.g., information regarding aliens who are illegally in the country, individuals who have been dishonorably discharged from the armed forces, and other persons prohibited by federal law from possessing a firearm). NICS is available for background checks 17 hours a day, seven days a week, including holidays (except Thanksgiving and Christmas). The call is received at one of two call centers located in Moundsville, West Virginia, and Uniontown, Pennsylvania. A call center customer service representative (CSR) enters the potential buyer's descriptive information into the NICS computer to initiate a search of the NICS databases. Once this information is entered and sent to NICS, one of two responses will be returned from NICS - proceed or delay - along with a NICS Transaction Number (NTN) for that particular transaction. The FBI gives a "delay" response if there is some information, which indicates that the prospective purchaser may be prohibited from receiving firearms. In those cases, the FBI has up to three business days to review records and determine whether a prospective purchaser is prohibited from receiving a firearm. Statistics show that an average telephone check is about 2 minutes and 40 seconds. In order to maintain the privacy of the potential gun purchaser, CSRs do not provide denied responses because these personnel are not authorized to review criminal history records. FBI staff at the center later research the delayed transactions to determine whether the gun purchaser should be denied.
Currently a newer system has been developed, the NICS E-Check, a way in which background checks can be performed electronically. The NICS E-Check enables FFLs to initiate an unassisted NICS background check for firearm purchases via the Internet.
According to the "FBI/NICS Operations Report May 2003," between November 1998, when NICS was implemented, and December 31, 2002, NICS has processed a total of 35,938,513 background checks. A total of 281,883 firearm transfers were denied. Seventy-one percent of the background checks were completed in just a few minutes.
The NICS E-Check system is designed to ensure even more expedient background checks. However, what is important to consider, is that contrary to a telephone call, the E-Check system allows the background record to be printed and more easily maintained for record keeping purposes. While this may be efficient for the record keeping of a FFL, it can create a potential loophole in maintaining the privacy of gun purchasers. Multiple copies of a NICS check can be printed, and be intentionally or accidentally circulated.
- Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-159, § 102, 107 Stat. 1536 (1993).
- United States General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System (February 2000).
- United States Department of Justice, FBI NICS Operations Report May 2003, (May 2003).
Attorney General Ashcroft's Proposal
In June 2001, U.S. Attorney General John Ashcroft announced that the Department of Justice would reduce the amount of time the FBI could retain the records of a gun purchaser's NICS check to just one business day, from the pervious 90-day plan. Ashcroft announced this policy three days after the U.S. Supreme Court denied the NRA's request for the immediate destruction of these records. The NRA had sued to force the immediate destruction of records, arguing that it was necessary in order to maintain the privacy of gun owners. Some have assumed that Ashcroft was induced by the NRA, claiming that the NRA contributed more to Ashcroft than to any other senate candidate when Ashcroft ran for re-election to the Senate from Missouri in 2000. Before the announcement of Ashcroft's directive, the FBI had 90 days to maintain these records before destroying them, and used this time to conduct periodic audits in order to detect possible fraud or abuse by gun dealers and purchasers. Originally the retention time was 180 days, but in 2000, former President Bill Clinton had reduced the permissible record retention period from 180 days to 90 days. In his statement, Ashcroft argued that the destruction of such records after one day would not only "improve the accuracy, efficiency, and reliability of the National Instant Criminal Background Check System," but would also maintain the privacy of gun purchasers.
At issue in Ashcroft's policy is the ability of NICS to create an "audit log" of all the background checks conducted over the 90-day period. Through a NICS audit, the FBI can identify those cases where NICS was used for unauthorized purposes, and allows the FBI to perform quality control checks on the system's operation. At the same time, however, the records of who purchased a firearm, can become available for others to examine. While some, like the NRA, view Ashcroft's initiative as pro-privacy, various gun control groups have criticized Ashcroft's move. For example, the Violence Policy Center, the Brady Campaign to Prevent Gun Violence, and Americans for Gun Safety argue that this reduction to one day is an indication that the administration will dismantle the Brady Act. The argument for the maintenance of the records, for at least a short period of time, is centered around the need to create a source for audits that the FBI can use to lead them to dishonest dealers, and identify possible "straw purchases" (when the person buying a gun bought it for someone who had failed a background check). The only exceptions to Ashcroft's new 24 hour retention policy are those cases that the ATF requests for review. In these cases, the ATF will be able to hold the records for 30 days to investigate gun dealers before having to destroy them. However, there is evidence that neither the FBI nor the ATF have actually been using background check records on a regular basis for investigations, and a former ATF official says that the new policy will not have much of a measurable impact. Even so, gun control groups argue that the fact that the FBI and ATF had the potential to use the audit log likely deterred dishonest gun dealers.
There is evidence that the FBI disapproves of Ashcroft's new policy. A 2000 report by the General Accounting Office (GAO) reported that the FBI has documented purge procedures for background check records in order to maintain the privacy of gun purchasers. The report reveals that both FBI and ATF officials indicate the need for the temporary retention of NICS transaction information because it provides an "audit log" database that is essential for ensuring that NICS is used only for intended purposes. Additionally, the FBI explained that it uses the audit log to oversee and improve NICS operations.
At the heart of this debate is the need to guard against criminal activity, as well as the need to maintain the privacy of gun purchasers. Therefore, it is important to consider how the Privacy Act of 1974 interacts with NICS. The Privacy Act imposes various requirements on federal agencies, including a requirement that agencies allow an individual to access his records, containing personally identifiable information, and permit the individual to request the correction of any information that the individual believes is not accurate or complete. However, in certain circumstances, the act also allows agencies to exempt themselves from these requirements. For example, the act allows agencies to exempt any system of records from the access and correction of information requirements if the records involve investigatory material compiled for law enforcement purposes. In reference to the regulations exempting the FBI's NICS from these Privacy Act requirements, the GAO noted in its 2000 Report that "(1) access to records in the system would compromise ongoing investigations or constitute a potential danger to the health or safety of law enforcement personnel and (2) NICS itself provides an alternative procedure for amending erroneous records resulting in transfer denials." Thus, a gun purchaser is not able to access or correct any NICS background checks, even if the purchaser is aware that there is a false statement on such a record.
- Gun Buyers Find Privacy Perk, Bill Would Cut Holding Of Records to 24 Hours, Wall Street Journal, December 16, 2003.
- To Appease the Gun Lobby, Ashcroft Betrays the War on Terrorism, New York Times, December 6, 2000.
- Russ Rizzo, Gun records' life shortened: Ashcroft tells FBI to destroy background papers after 1 day, Dallas Morning News, June 29, 2001.
- United States General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System (February 2000).
GAO's 2002 Report on the Effects of the One-Day Policy
In July 2002, the General Accounting Office (GAO) submitted a report, "Potential Effects of Next-Day Destruction of NICS Background Check Records," at the request of Senator Richard Durbin, analyzing how the FBI would be affected by this 24-hour destruction of NICS checks. The GAO stated that while "routine system audits may not be adversely affected by Department of Justice's proposed requirement for next-day destruction of records, other current uses of NICS records would be affected, with consequences for public safety and NICS operations." The report indicated that while the FBI is taking certain steps, such as changing the computer system, work processes, policies, and procedures, to mitigate these effects, not all consequences would be covered. The FBI's plans show that many routine audits currently conducted monthly or quarterly (e.g., audits of the accuracy of NICS examiners' decisions) would now need to be conducted on a real-time (hourly or daily) basis by adding more staff and changing procedures. The GAO also reports that a next-day destruction policy would adversely affect certain non-routine audits of the system. For example, under the 90-day policy, if a law enforcement agency has information that indicates that an individual is prohibited from purchasing firearms under federal law, the agency may request that the FBI check whether the name appears in NICS records of allowed transfers. If the FBI finds a record showing an allowed transfer to a "prohibited person" (e.g., a transfer to an alien who is illegally or unlawfully in the United States), that record indicates a potential violation of law, and the FBI may disclose the record to the appropriate law enforcement entity. These audits of the accuracy of responses given by NICS, and the additional (secondary) benefit of assisting law enforcement investigations, generally would not be possible under a next-day destruction policy.
Laurie Ekstrand, author of the GAO report, stated that essentially destroying the records of approved gun sales would deter police from tracking down and retrieving weapons from criminals who were mistakenly allowed to purchase guns.
Furthermore, the GAO reports that a next-day destruction policy would adversely affect some aspects of current NICS operations, which would have public safety implications and could lessen the efficacy of current operations. In reference to public safety, the FBI would lose certain abilities to initiate firearm-retrieval actions when new information reveals that individuals who were approved to purchase firearms should not have been. During the first 6 months of the 90-day retention policy, the FBI claims that it used retained records to initiate 235 firearm-retrieval actions, of which 228 (97 percent) could not have been initiated under the proposed next-day destruction policy. Also, a next-day destruction policy could lengthen the time needed to complete background checks and place additional burdens on law enforcement agencies, including state and local courts, because NICS examiners, while researching new transactions, may have to make repeat calls for information that otherwise would have been retained in audit log records. Moreover, the FBI would not be able to respond as efficiently to (1) gun dealer questions about completed transactions and (2) purchaser and congressional questions related to the NICS appeals process, because information on allowed firearms transfers may not be available at the time of inquiry.
Finally, while ATF headquarters officials told the GAO that a next-day destruction policy would not affect ATF's ability to inspect gun dealer records, the GAO reports that its investigations indicate that the effect of such a policy on ATF inspections is unclear. For example, under the proposed next-day destruction policy, NICS records of allowed firearms transfers would no longer be available for a detailed comparison with dealer records of the purportedly same transactions. The GAO stated, that when the next-day destruction policy is implemented, ATF plans to replace the detailed comparisons with a "recheck" procedure, under which ATF inspectors would request that the FBI rerun selected NICS checks based on information taken from gun dealer records. Among the Department of Justice's solutions are improving state criminal recordkeeping systems and retaining firearm-dealer identification numbers to track purchases.
- United States General Accounting Office, Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records (June 2002).
Congressional Response to NICS and the One-Day Limitation
In contrast to Ashcroft, Senator Charles Schumer (D-NY) is encouraging the Department of Justice to keep personal data on law-abiding gun buyers from NICS, and to instead offer the information for unlimited use by state and local agencies. In December 2001, Schumer, backed by Senator Edward Kennedy (D-Mass) introduced the "Use NICS in Terrorist Investigations Act" after Ashcroft refused to allow FBI access to NICS records of lawful gun purchases. Congresswoman Carolyn McCarthy (NY-4) introduced the same legislation to the House. This bill calls for the retention of gun purchase records for no less than 90 days, and during this period, that "the Department of Justice and its divisions, including the Federal Bureau of Investigation, shall make those records available to the Department of the Treasury and its divisions, including the Bureau of Alcohol, Tobacco, and Firearms, for the purpose of conducting system audits to detect fraud and misuse of the system and to protect the privacy and security of the system." Despite the bill's title, the language of the proposal makes no reference to terrorist investigations, and no limits are placed on the use of the information. While the legislation would mandate that the FBI and Department of Treasury destroy any records they maintain for auditing NICS sometime after 90 days, no such restriction would apply to information shared with state or local law enforcement agencies. Thus, under this bill, the privacy of gun purchasers would be much less protected, with the retention of background checks being 90 days, and state officials under no obligation to ever destroy these records.
More recently McCarthy and Schumer teamed up to re-introduce the "Our Lady of the Peace" bill. The "Our Lady of Peace" bill, was introduced in the 107th Congress by Representatives McCarthy and John Dingell (D-MI) in May 2002, and passed the House that same year. A companion bill was introduced in the Senate in late July by Senators Larry Craig (R-ID), John McCain (R-AZ), Charles Schumer and Edward Kennedy (D-MA), but the session closed before it could be considered in the Senate. Due to the attention received by the trial of Peter Troy, a paranoid schizophrenic charged with killing a priest at Our Lady of Peace Roman Catholic Church, in June 2003 McCarthy and Schumer revitalized their bill, which attempts to keep guns out of the hands of the mentally ill. Under the bill, re-titled "The NICS Improvement Act," states would be required to automate their records on mentally ill people in their state, and then forward this information to the FBI so it could be included in NICS. Essentially, the bill would allocate $250 million dollars to underwrite the cost of establishing or upgrading a state's record-keeping technology. There are, however, important privacy considerations of such an act. The state would be mandated to forward mental health records, but in addition the FBI could also require that a state forward all of its employment and tax records on gun purchasers in order to identify persons who are illegal aliens. Furthermore, the FBI could also require that states forward information concerning drug diversion programs and arrests that do not lead to prosecution. Thus, this act would be a major intrusion on the privacy of gun purchasers, with their employment and tax records potentially available to the FBI.
State laws: privacy and gun purchase records
States laws vary a great deal with respect to the retention and protection gun purchase and gun ownership records receive. As previously indicated, states are currently under no obligation to automate felony conviction, domestic violence and mental health records or to transmit those files to the NICS database.
Texas is the leading state in selling firearms to prohibited individuals, followed by Alabama, Ohio, Arkansas, and Louisiana. It is up to the state to ensure that NICS has their state criminal records, and it is the state's responsibility to automate its own records. Thus, there is a great deal of variation. Since 1995 the federal government has provided state governments with $3.5 million to convert paper files to an electronic format so they can be uploaded to NICS. However, a study by Americans for Gun Safety Foundation revealed that only 25 states have automated 60 percent of their felony conviction records. According to the report, Colorado, Indiana and Tennessee have automated only 6 percent of their records, while Virginia has automated 71 percent.
Some states take the position that privacy of gun purchase takes precedence, while other states are more concerned with highly regulating such purchases in order to decrease violent crimes. For example, Maryland and New York place firearm regulation above privacy. Maryland State Police lobbied for a law, passed in 2000, that requires sellers of handguns in their state to provide police with information about each purchaser and a casing from a bullet test. New York has a very similar system.
Now that Ashcroft's one day policy is in effect, the FBI has been conducting audits of those states that serve as POCs, verifying that NICS checks are being destroyed within 24 hours. FBI auditors have already charged Pennsylvania for violating both Federal and Pennsylvania laws. The Pennsylvania Instant Check System was found to have retained records passed the 24 hour federal deadline and 72 hour deadline for state records imposed by the state. As stated, states vary a great deal in how much privacy they require gun purchasers in their state to give up when acquiring a firearm, but the majority of states afford privacy over regulation. For example, only five states requires full background checks when purchasing a gun at a gun show, nine states require partial background checks at gun shows (usually in advance of a gun show), and the rest require no check at all; two states require all guns to be registered with the state police, five require some form of guns to be registered with state police, and the rest of states do not require guns to be registered with the police; only 11 states require a permit to purchase a handgun; and only 15 states allow gun officials to maintain gun sales records.
- Matt Bennett, New Report Shows Huge Gaps in Gun Sale Background Check Records, Press Release Americans for Gun Safety Foundation, January 16, 2002.
- Mike Allen, Bush Questions Gun Tracking's Usefulness, Washington Post, October 16, 2002 at A15
A "Pillar" Of The First Amendment Discriminates Against The Second, NRA-ILA, Friday, October 26, 2007
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by Ryan Calo, A. Michael Froomkin,