Gun Control and Terrorism
FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records Gao ID: GAO-05-127 January 19, 2005Membership in a terrorist organization does not prohibit a person from owning a gun under current law. Thus, during presale screening of prospective firearms purchasers, the National Instant Criminal Background Check System historically did not utilize terrorist watch list records. However, for homeland security and other purposes, the Federal Bureau of Investigation (FBI) and applicable state agencies began receiving notices (effective February 3, 2004) when such screening involved watch lists records. GAO determined (1) how many checks have resulted in valid matches with terrorist watch list records, (2) procedures for providing federal counterterrorism officials relevant information from valid-match background checks, and (3) the extent to which the FBI monitors or audits the states' handling of such checks.
During the period GAO reviewed--February 3 through June 30, 2004--a total of 44 firearm-related background checks handled by the FBI and applicable state agencies resulted in valid matches with terrorist watch list records. Of this total, 35 transactions were allowed to proceed because the background checks found no prohibiting information, such as felony convictions, illegal immigrant status, or other disqualifying factors. Federal and state procedures--developed and disseminated under the Department of Justice's direction--do not address the specific types of information from valid-match background checks that can or should be provided to federal counterterrorism officials or the sources from which such information can be obtained. Justice officials told GAO that information from the background check system is not to be used for general law enforcement purposes but can be shared with law enforcement agents or other government agencies in the legitimate pursuit of establishing a match between the prospective gun buyer and a terrorist watch list record and in the search for information that could prohibit the firearm transfer. Most state agency personnel GAO contacted were not aware of any restrictions or limitations on providing valid-match information to counterterrorism officials. FBI counterterrorism officials told GAO that routinely receiving all available personal identifying information and other details from valid-match background checks could be useful in conducting investigations. As part of routine audits the FBI conducts every 3 years, the Bureau plans to assess the states' handling of firearm-related background checks involving terrorist watch list records. However, given that these background checks involve known or suspected terrorists who could pose homeland security risks, more frequent FBI oversight or centralized management would help ensure that suspected terrorists who have disqualifying factors do not obtain firearms in violation of the law. The Attorney General and the FBI ultimately are responsible for managing the background check system, although they have yet to assess the states' compliance with applicable procedures for handling terrorism-related checks. Also, more frequent FBI oversight or centralized management would help address other types of issues GAO identified--such as several states' delays in implementing procedures and one state's mishandling of a terrorism-related background check.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-127, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
January 2005:
Gun Control and Terrorism:
FBI Could Better Manage Firearm-Related Background Checks Involving
Terrorist Watch List Records:
GAO-05-127:
GAO Highlights:
Highlights of GAO-05-127, a report to congressional requesters:
Why GAO Did This Study:
Membership in a terrorist organization does not prohibit a person from
owning a gun under current law. Thus, during presale screening of
prospective firearms purchasers, the National Instant Criminal
Background Check System historically did not utilize terrorist watch
list records. However, for homeland security and other purposes, the
Federal Bureau of Investigation (FBI) and applicable state agencies
began receiving notices (effective February 3, 2004) when such
screening involved watch lists records. GAO determined (1) how many
checks have resulted in valid matches with terrorist watch list
records, (2) procedures for providing federal counterterrorism
officials relevant information from valid-match background checks, and
(3) the extent to which the FBI monitors or audits the states' handling
of such checks.
What GAO Found:
During the period GAO reviewed--February 3 through June 30, 2004--a
total of 44 firearm-related background checks handled by the FBI and
applicable state agencies resulted in valid matches with terrorist
watch list records. Of this total, 35 transactions were allowed to
proceed because the background checks found no prohibiting information,
such as felony convictions, illegal immigrant status, or other
disqualifying factors.
Firearm-Related Background Checks with Valid Matches to Terrorist Watch
List Records, February 3 through June 30, 2004:
Agency: FBI;
Valid matches: 21;
Results of background checks: Allowed to proceed: 19; Results of
background checks: Denied: 2; Results of background checks: Results
pending or records not available: 0.
Agency: State agencies;
Valid matches: 23;
Results of background checks: Allowed to proceed: 16; Results of
background checks: Denied: 4; Results of background checks: Results
pending or records not available: 3.
Total;
Valid matches: 44;
Results of background checks: Allowed to proceed: 35; Results of
background checks: Denied: 6; Results of background checks: Results
pending or records not available: 3.
Source: GAO analysis of FBI data and interviews with state agency
officials.
[End of table]
Federal and state procedures--developed and disseminated under the
Department of Justice's direction--do not address the specific types of
information from valid-match background checks that can or should be
provided to federal counterterrorism officials or the sources from
which such information can be obtained. Justice officials told GAO that
information from the background check system is not to be used for
general law enforcement purposes but can be shared with law enforcement
agents or other government agencies in the legitimate pursuit of
establishing a match between the prospective gun buyer and a terrorist
watch list record and in the search for information that could prohibit
the firearm transfer. Most state agency personnel GAO contacted were
not aware of any restrictions or limitations on providing valid-match
information to counterterrorism officials. FBI counterterrorism
officials told GAO that routinely receiving all available personal
identifying information and other details from valid-match background
checks could be useful in conducting investigations. As part of routine
audits the FBI conducts every 3 years, the Bureau plans to assess the
states' handling of firearm-related background checks involving
terrorist watch list records. However, given that these background
checks involve known or suspected terrorists who could pose homeland
security risks, more frequent FBI oversight or centralized management
would help ensure that suspected terrorists who have disqualifying
factors do not obtain firearms in violation of the law. The Attorney
General and the FBI ultimately are responsible for managing the
background check system, although they have yet to assess the states'
compliance with applicable procedures for handling terrorism-related
checks. Also, more frequent FBI oversight or centralized management
would help address other types of issues GAO identified--such as
several states' delays in implementing procedures and one state's
mishandling of a terrorism-related background check.
What GAO Recommends:
Proper management of firearm-related background checks involving valid
matches with terrorist watch list records is important. GAO recommends
that the Attorney General (1) clarify procedures to ensure that the
maximum amount of allowable information from these background checks is
consistently shared with counterterrorism officials and (2) either
strengthen the FBI's oversight of state agencies or have the FBI
centrally manage all valid-match background checks. The Department of
Justice agreed.
www.gao.gov/cgi-bin/getrpt?GAO-05-127.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Laurie Ekstrand at (202)
512-8777 or ekstrandl@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
NICS Searches Terrorist Watch List Records Generated by Numerous
Federal Agencies:
NICS Transactions Resulted in 44 Valid Matches with Terrorist Records
in VGTOF:
NICS Procedures Contain General Guidelines for Sharing Information with
Counterterrorism Officials:
The FBI Has Not Routinely Monitored the States' Handling of Terrorism-
Related NICS Transactions; States Have Encountered Issues:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Scope and Methodology:
Data Reliability:
Appendix II: Federal and State Requirements for Retaining Information
from Terrorism-Related NICS Transactions:
Federal Records Retention Requirements: Next-Day Destruction:
State Records Retention Requirements Vary:
Appendix III: Comments from the Department of Justice:
Tables:
Table 1: Watch Lists Maintained by Federal Agencies:
Table 2: NICS Transactions with Valid Matches to Terrorist Records in
VGTOF, February 3 through June 30, 2004:
Abbreviations:
ATF: Bureau of Alcohol, Tobacco, Firearms and Explosives:
FBI: Federal Bureau of Investigation:
Justice: Department of Justice:
NICS: National Instant Criminal Background Check System:
TSC: Terrorist Screening Center:
VGTOF: Violent Gang and Terrorist Organization File:
United States Government Accountability Office:
Washington, DC 20548:
January 19, 2005:
The Honorable Joseph R. Biden, Jr.:
Committee on the Judiciary:
U.S. Senate:
The Honorable Frank R. Lautenberg:
Committee on Homeland Security and Governmental Affairs:
U.S. Senate:
Terrorist and criminal watch lists--sometimes referred to as watchout,
lookout, target, or tip-off lists--are important tools for law
enforcement and homeland security purposes. This report responds to
your request for information on how the Federal Bureau of
Investigation's (FBI) National Instant Criminal Background Check System
(NICS) handles checks of prospective firearms purchasers that hit on
and are confirmed to match terrorist watch list records.
As you know, under the Brady Handgun Violence Prevention Act and
implementing regulations, the FBI and designated state and local
criminal justice agencies use NICS to conduct background checks on
individuals seeking to purchase firearms or obtain permits to possess,
acquire, or carry firearms.[Footnote 1] During the NICS check,
descriptive data provided by an individual--such as name and date of
birth--are used to search databases containing criminal history and
other relevant records to determine whether or not the person is
disqualified by law from receiving or possessing firearms. For
instance, persons prohibited by federal law from receiving firearms
include convicted felons, fugitives, unlawful drug users, and aliens
illegally or unlawfully in the United States.
According to the Department of Justice (Justice), under federal and
state law, neither suspected nor actual membership in a terrorist
organization is a stand-alone factor that would prohibit a person from
receiving or possessing a firearm. Thus, FBI and state personnel
processing NICS transactions historically did not receive notice when
NICS searches hit on terrorist watch list records. In such cases, if
there were no other records in the databases checked by NICS showing
the person to be prohibited, the transaction received an immediate
"proceed" response. However, in November 2003, Justice directed the FBI
to revise its procedures to better ensure that suspected members of
terrorist organizations who have disqualifying factors do not receive
firearms in violation of the law. Under revised procedures effective
February 3, 2004, all NICS transactions with potential or valid matches
to terrorist watch list records are automatically delayed to give NICS
personnel the chance to further research the transaction for
prohibiting information before a response (e.g., proceed or denied) is
given to the initiator of the background check. If no prohibiting
information is found, the transaction may proceed and a known or
suspected terrorist can legally purchase firearms.
This report addresses the following questions regarding NICS and
terrorist watch lists:
* What terrorist watch lists are searched during NICS background checks?
* How many NICS transactions have resulted in valid matches with
terrorist watch list records?
* For valid matches, what are federal and state procedures for sharing
NICS-related information with federal counterterrorism officials?
* To what extent does the FBI monitor the states' handling of NICS
transactions with valid matches to terrorist watch list records? What
issues, if any, have state agencies encountered in handling such
transactions?
* Also, appendix II of this report presents summary information on
federal and state requirements for retaining information related to
NICS transactions with valid matches to terrorist watch list records.
In performing our work, we interviewed officials from the Department of
Justice, the FBI, and the Terrorist Screening Center--a multiagency
center responsible for consolidating federal terrorist watch lists--and
reviewed documentation they provided us. We obtained data on NICS
transactions that resulted in valid matches with terrorist watch list
records during the period February 3, 2004 (when the revised NICS
procedures took effect), through June 30, 2004. We also contacted 11
states (California, Colorado, Florida, Hawaii, Illinois, Massachusetts,
North Carolina, Pennsylvania, Tennessee, Texas, and Virginia) that FBI
data indicated--and the states subsequently confirmed--had processed
NICS checks (during the period February 3 through June 30, 2004) that
resulted in one or more valid matches with terrorist watch list
records. The results of our interviews with state officials may not be
representative of the views and opinions of others nationwide. We were
unable to fully assess the reliability or accuracy of the data provided
to us because of ongoing terrorism investigations. However, we did
discuss the sources of data with FBI and state officials and determined
that the data were sufficiently reliable for the purposes of this
review. Further, we reviewed applicable laws, procedures, and other
documents related to handling NICS transactions that hit on terrorist
watch list records or the retention of NICS information.
We performed our work from April through December 2004 in accordance
with generally accepted government auditing standards. Appendix I
presents more details about our objectives, scope, and methodology.
Results in Brief:
During presale screening of prospective firearms purchasers, NICS
searches terrorist watch list records generated by numerous federal
agencies, including components of the Departments of Justice, State,
and Homeland Security. Applicable records are consolidated by the
Terrorist Screening Center, which then makes them available for certain
uses or purposes, such as inclusion in an FBI database that is searched
during NICS checks of prospective firearms purchasers.
During the period February 3 through June 30, 2004, a total of 44 NICS
transactions (involving 36 different individuals) resulted in valid
matches with terrorist watch list records, according to FBI data and
our interviews with state agency officials. Of the 44 transactions with
valid matches, 35 were allowed to proceed because the background checks
found no prohibiting information, such as felony convictions or illegal
immigrant status; 6 were denied based on prohibiting information; and 3
were either pending a final resolution or the final resolution was not
available. We could not determine whether the individuals who had more
than one valid match had actually attempted to purchase firearms or
acquire firearms permits on separate occasions, or if the multiple
transactions were run for other purposes (e.g., rechecks), in part
because information related to applicable NICS records was not
available due to legal requirements for destroying information on
transactions that are allowed to proceed.[Footnote 2] For valid
matches, federal and state procedures--developed and disseminated under
the Department of Justice's direction--do not address the specific
types of information from NICS transactions that can or should be
provided to federal counterterrorism officials or the sources from
which such information can be obtained. Justice's position is that the
types of information that can be routinely provided generally are
limited to the information contained within the NICS database, such as
certain biographical data collected from a gun dealer for purposes of
running a NICS check (e.g., name and date of birth). Justice noted,
however, that NICS personnel can request additional information from a
gun dealer or from a law enforcement agency processing a firearms
permit application, if that information is requested by a
counterterrorism official in the legitimate pursuit of establishing a
match between the prospective gun buyer and a terrorist watch list
record. Justice told us that in cases in which a match is established
and law enforcement agents want additional information about the
firearm transaction--such as the residence address of the prospective
firearm purchaser or the make and model of the firearm(s) to be
transferred--law enforcement officers could coordinate with the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) to have ATF request
such information from the gun dealer's records without a warrant. Most
state agency personnel we contacted were not aware of any restrictions
or limitations on sharing information with counterterrorism officials.
Most state personnel told us that--at the request of counterterrorism
officials--the state would contact the gun dealer or refer to the state
permit application to obtain and provide all available information
related to a NICS transaction. FBI counterterrorism officials told us
that receiving all available personal identifying information and other
details from terrorism-related NICS transactions could be useful in
conducting investigations.
Although the Attorney General and the FBI ultimately are responsible
for managing NICS, the FBI has not routinely monitored the states'
handling of NICS transactions with valid matches to terrorist watch
list records. For example, while the FBI has notified state agencies
about the procedures for handling NICS transactions with valid matches
to terrorist watch list records, it has not routinely assessed the
extent to which the states have implemented and followed procedures.
According to the FBI, routine monitoring of the states has not been
performed because of the difficulty in obtaining reliable state data.
The FBI's plans call for auditing the states' compliance with the
procedures every 3 years. However, given that valid-match background
checks involve known or suspected terrorists who could pose homeland
security risks, more timely or more frequent monitoring would help
ensure that terrorists who have disqualifying factors do not obtain
firearms in violation of the law. Also, under the FBI's planned 3-year
audit cycle, relevant information from valid-match checks may have been
destroyed pursuant to federal or state laws and therefore not available
for review. Our work revealed several issues state agencies have
encountered in handling terrorism-related NICS transactions, including
delays in implementing procedures and a mishandled transaction.
This report provides recommendations for the Attorney General to (1)
clarify procedures to ensure that the maximum amount of allowable
information from terrorism-related NICS transactions is consistently
shared with counterterrorism officials and (2) either implement more
frequent monitoring by the FBI of applicable state agencies or have the
FBI centrally manage all terrorism-related background checks. The
Department of Justice agreed with our recommendations.
Background:
The permanent provisions of the Brady Handgun Violence Prevention Act
took effect on November 30, 1998. Under the Brady Act, before a
federally licensed firearms dealer can transfer a firearm to an
unlicensed individual, the dealer must request a background check
through NICS to determine whether the prospective firearm transfer
would violate federal or state law.[Footnote 3] The Brady Act's
implementing regulations also provide for conducting NICS checks on
individuals seeking to obtain permits to possess, acquire, or carry
firearms. According to the Department of Justice, under current law,
inclusion on a terrorist watch list is not a stand-alone factor that
would prohibit a person from receiving or possessing a firearm. Thus,
if no other federal or state prohibitors exist, a known or suspected
terrorist can legally purchase firearms.
Approximately 8.5 million background checks are run through NICS each
year, of which about one-half are processed by the FBI's NICS Section
and one-half by designated state and local criminal justice agencies.
Under federal and state requirements, prospective firearms purchasers
must provide information that is needed to initiate a NICS background
check. For example, in order to receive a firearm from a licensed
dealer, federal regulations require an individual to complete a
Firearms Transaction Record (ATF Form 4473). Among other things, this
form requires prospective purchasers to provide the following
descriptive data: name, residence address, place of birth, height and
weight, sex, date of birth, race, state of residence, country of
citizenship, and alien registration number (for non-U.S. citizens). A
Social Security number is optional. Firearms dealers use the Form 4473
to record information about the firearms transaction, including the
type of firearm(s) to be transferred (e.g., handgun or long gun); the
response provided by the FBI's NICS Section or state agency (e.g.,
proceed or denied); and information specifically identifying each
firearm to be transferred (e.g., manufacturer, model, and serial
number), which shows whether the transaction involves the purchase of
multiple firearms. Individuals applying for state permits to possess,
acquire, or carry firearms also are required to provide personal
descriptive data on a state permit application. State laws vary in
regard to the types of information required from permit applicants.
The purpose of the NICS background check is to search for the existence
of a prohibitor that would disqualify a potential buyer from purchasing
a firearm pursuant to federal or state law. During the NICS check,
descriptive data provided by an individual--such as name and date of
birth--are used to search databases containing criminal history and
other records supplied by federal, state, and local agencies.[Footnote
4] One of the databases searched by NICS is the FBI's National Crime
Information Center database, which contains criminal justice
information (e.g., names of persons who have outstanding warrants) and
also includes records on persons identified as known or suspected
members of terrorist organizations. The terrorist-related records are
maintained in the National Crime Information Center's Violent Gang and
Terrorist Organization File (VGTOF), which was designed to provide law
enforcement personnel with the means to exchange information on members
of violent gangs and terrorist organizations.
Although NICS checks have included searches of terrorist records in
VGTOF, NICS personnel at the FBI and state agencies historically did
not receive notice when there were hits on these records. The FBI
blocked the VGTOF responses (i.e., the responses were not provided to
NICS personnel) under the reasoning that VGTOF records contain no
information that would legally prohibit the transfer of a firearm under
federal or state law. However, in November 2002, the FBI began an audit
of NICS transactions where information indicated the individual was an
alien, including transactions involving VGTOF records. In one instance
involving a VGTOF record, the audit revealed that an FBI field agent
had knowledge of prohibiting information not yet entered into the
automated databases checked by NICS. As a result, in November 2003, the
Department of Justice--citing Brady Act authorities--directed the FBI
to revise NICS procedures to better ensure that subjects of VGTOF
records who have disqualifying factors do not receive firearms in
violation of applicable federal or state law. Specifically, the Brady
Act authority cited allows the FBI up to 3 business days to check for
information demonstrating that a prospective buyer is prohibited by law
from possessing or receiving a firearm.[Footnote 5]
Under revised procedures effective February 3, 2004, FBI and state
personnel who handle NICS transactions began receiving notice of
transactions that hit on VGTOF records. Also, under the revised
procedures, all NICS transactions with potential or valid matches to
VGTOF records are automatically delayed to give NICS personnel the
chance to further research the transaction before a response (e.g.,
proceed or denied) is given to the initiator of the background check.
For all potential or valid matches with terrorist records in VGTOF,
NICS personnel are to begin their research by contacting the Terrorist
Screening Center (TSC) to verify that the subject of the NICS
transaction matches the subject of the VGTOF record, based on the name
and other descriptors.[Footnote 6] For confirmed matches, NICS
personnel are to determine whether federal counterterrorism officials
(e.g., FBI field agents) are aware of any information that would
prohibit the individual by law from receiving or possessing a firearm.
For example, FBI field agents could have information not yet posted to
databases checked by NICS showing the person is an alien illegally or
unlawfully in the United States. If counterterrorism officials do not
provide any prohibiting information, and there are no other records in
the databases checked by NICS showing the individual to be prohibited,
NICS personnel are to advise the initiator of the background check that
the transaction may proceed. If the NICS background check is not
completed within 3 business days, the gun dealer may transfer the
firearm (unless state law provides otherwise).
Designated state and local criminal justice agencies are responsible
for conducting background checks in accordance with NICS policies and
procedures. However, the Attorney General and the FBI ultimately are
responsible for managing the overall NICS program. Thus, the FBI's
Criminal Justice Information Services Division conducts audits of the
states' compliance with federally established NICS regulations and
guidelines. Also, the FBI is a lead U.S. law enforcement agency
responsible for investigating terrorism-related matters.
NICS Searches Terrorist Watch List Records Generated by Numerous
Federal Agencies:
During presale screening of prospective firearms purchasers, NICS
searches terrorist watch list records generated by numerous federal
agencies, including components of the Departments of Justice, State,
and Homeland Security. Applicable records are consolidated by TSC,
which then makes them available for certain uses or purposes, such as
inclusion in VGTOF--a database routinely searched during NICS
background checks.
Numerous Federal Agencies Maintain Terrorist Watch Lists:
Terrorist watch lists are maintained by numerous federal agencies.
These lists contain varying types of data, from biographical data--such
as a person's name and date of birth--to biometric data--such as
fingerprints. Our April 2003 report identified 12 terrorist or criminal
watch lists that were maintained by nine federal agencies.[Footnote 7]
Table 1 shows the 12 watch lists and the current agencies that maintain
them.
Table 1: Watch Lists Maintained by Federal Agencies:
Department: State;
Agency: Bureau of Consular Affairs;
Watch list: Consular Lookout and Support System.
Department: State;
Agency: Bureau of Intelligence and Research;
Watch list: TIPOFF[A].
Department: Homeland Security;
Agency: U.S. Customs and Border Protection;
Watch list: Interagency Border Inspection System.
Department: Homeland Security;
Agency: Transportation Security Administration;
Watch list: No-Fly List.
Department: Homeland Security;
Agency: Transportation Security Administration;
Watch list: Department: Selectee List.
Department: Homeland Security;
Agency: U.S. Immigration and Customs Enforcement;
Watch list: National Automated Immigration Lookout System.
Department: Homeland Security;
Agency: U.S. Immigration and Customs Enforcement;
Watch list: Automated Biometric (fingerprint) Identification System.
Department: Justice;
Agency: U.S. Marshals Service;
Watch list: Warrant Information Network.
Department: Justice;
Agency: FBI;
Watch list: Violent Gang and Terrorist Organization File.
Department: Justice;
Agency: FBI;
Watch list: Integrated Automated Fingerprint Identification System[B].
Department: Justice;
Agency: U.S. National Central Bureau of Interpol;
Watch list: Interpol Terrorism Watch List.
Department: Defense;
Agency: Air Force (Office of Special Investigations);
Watch list: Top 10 Fugitive List.
Source: GAO.
[A] In November 2003, the Terrorist Threat Integration Center assumed
responsibility for the functions of the Department of State's TIPOFF
counterterrorism program. The Terrorist Threat Integration Center was
created in January 2003 to merge and analyze terrorist-related
information collected domestically and abroad in order to form the most
comprehensive possible threat picture.
[B] The Integrated Automated Fingerprint Identification System is the
FBI system for searching the fingerprint-supported criminal history
records maintained by the FBI. The fingerprints and corresponding
criminal history information are submitted by federal, state, and local
law enforcement agencies.
[End of table]
At the time we issued our April 2003 report, federal agencies did not
have a consistent and uniform approach to sharing terrorist watch list
information.
TSC Was Established to Consolidate Terrorist Watch Lists:
TSC was established in September 2003 to consolidate the government's
approach to terrorism screening and provide for the appropriate and
lawful use of terrorism information. In addition to consolidating
terrorist watch list records, TSC serves as a single point of contact
for law enforcement authorities requesting assistance in the
identification of subjects with possible ties to terrorism. TSC has
access to supporting information behind terrorist records and can help
resolve issues regarding identification. TSC also coordinates with the
FBI's Counterterrorism Division to help ensure appropriate follow-up
actions are taken.
TSC receives the vast majority of its information about known or
suspected terrorists from the Terrorist Threat Integration Center,
which assembles and analyzes information from a wide range of sources.
In addition, the FBI provides TSC with information about purely
domestic terrorism (i.e., activities having no connection to
international terrorism). According to TSC officials, from December 1,
2003--the day TSC achieved an initial operating capability--to March
12, 2004, TSC consolidated information from 10 of the 12 watch lists
shown in table 1 into a terrorist-screening database. The officials
noted that the database has routinely been updated to add new
information. Further, TSC officials told us that information from the
remaining 2 watch lists--the U.S. Immigration and Customs Enforcement's
Automated Biometric Identification System and the FBI's Integrated
Automated Fingerprint Identification System--will be added to the
consolidated database at a future date not yet determined.
A provision in the Intelligence Authorization Act for Fiscal Year 2004
required the President to submit a report to Congress by September 16,
2004, on the operations of TSC.[Footnote 8] Among other things, this
report was to include:
* a determination of whether the data from all the watch lists
enumerated in our April 2003 report have been incorporated into the
consolidated terrorist-screening database;
* a determination of whether there remain any relevant databases not
yet part of the consolidated database; and:
* a schedule setting out the dates by which identified databases--not
yet part of the consolidated database--would be integrated.
As of November 2004, the report on TSC operations had not been
submitted to Congress.
TSC, through the participation of the Departments of Homeland Security,
Justice, and State and intelligence community representatives,
determines what information in the terrorist-screening database will be
made available for which types of screening purposes.
Eligible TSC Records Are Added to VGTOF and Searched by NICS:
In November 2003, the Department of Justice directed the FBI's NICS
Section to develop appropriate procedures for NICS searches of TSC
records when the center and its consolidated watch list database were
established and operational. In accordance with this directive, the FBI
and TSC have implemented procedures that allow all eligible records in
the center's consolidated terrorist-screening database to be added to
VGTOF and searched during NICS background checks. According to FBI and
TSC officials, since December 2003, eligible records from the terrorist-
screening database have been added to VGTOF and searched during NICS
background checks.
NICS Transactions Resulted in 44 Valid Matches with Terrorist Records
in VGTOF:
For the period February 3 through June 30, 2004, FBI data and our
interviews with state agency officials indicated that 44 NICS
transactions resulted in valid matches with terrorist records in VGTOF.
Of this total, 35 transactions were allowed to proceed because the
background checks found no prohibiting information, such as felony
convictions or illegal immigrant status, as shown in table 2.
Table 2: NICS Transactions with Valid Matches to Terrorist Records in
VGTOF, February 3 through June 30, 2004:
Agency handling transactions: FBI;
Valid matches: 21;
Results of valid matches: Transactions allowed to proceed: 19;
Results of valid matches: Transactions denied: 2;
Results of valid matches: Transactions unresolved[A]: 0;
Results of valid matches: Unknown status[B]: 0.
Agency handling transactions: State agencies;
Valid matches: 23[C];
Results of valid matches: Transactions allowed to proceed: 16;
Results of valid matches: Transactions denied: 4;
Results of valid matches: Transactions unresolved[A]: 1;
Results of valid matches: Unknown status[B]: 2.
Total;
Valid matches: 44[D];
Results of valid matches: Transactions allowed to proceed: 35;
Results of valid matches: Transactions denied: 6;
Results of valid matches: Transactions unresolved[A]: 1;
Results of valid matches: Unknown status[B]: 2.
Source: GAO analysis of data provided by the FBI's NICS Section and
interviews with state agency officials.
[A] Transactions unresolved refers to open transactions pending a final
proceed or denied determination.
[B] Unknown status consists of closed transactions for which the final
proceed or denied determination was not available.
[C] The 23 valid matches handled by state agencies occurred in 11
states that process NICS transactions (Calif., Colo., Fla., Hawaii,
Ill., Mass., N.C., Pa., Tenn., Tex., and Va.).
[D] Of the 44 total valid matches, 30 were related to prospective gun
purchases and 14 involved applications for permits to possess, carry,
or acquire firearms.
[End of table]
According to FBI data and our interviews with state agency officials,
the 44 total valid matches shown in table 2 involved 36 different
individuals (31 individuals had one match and 5 individuals had more
than one match). We could not determine whether the 5 individuals with
more than one match had actually attempted to purchase firearms or
acquire firearms permits on separate occasions, in part because
information related to applicable NICS records was not available due to
legal requirements for destroying information on transactions that are
allowed to proceed.[Footnote 9] Our work indicated that the multiple
transactions could have, for example, been run for administrative
purposes (e.g., rechecks).
The FBI's revised procedures for handling NICS transactions with valid
matches to terrorist watch list records--i.e., to delay the
transactions to give NICS personnel the chance to further research for
prohibitors--have successfully resulted in the denial of firearms
transactions involving known or suspected terrorists who have
disqualifying factors. Specifically, two of the six denied transactions
shown in table 2 were based on prohibiting information provided by FBI
field agents that had not yet been entered in automated databases
checked by NICS. According to agency officials in the two states that
handled the transactions, FBI field agents provided information showing
that one of the individuals was judged to be mentally defective and the
other individual was an alien illegally or unlawfully in the United
States. Based on this information, both firearm transfers were denied.
The vast majority of NICS transactions that generated initial hits on
terrorist records in VGTOF did not result in valid matches.
Specifically, during the period in which the 44 valid matches were
identified--February 3 through June 30, 2004--officials from the FBI's
NICS Section estimated that approximately 650 NICS transactions
generated initial hits on terrorist records in VGTOF.[Footnote 10] The
high rate of potential matches returned--i.e., VGTOF records returned
as potential matches based upon the data provided by the prospective
purchaser--is due to the expanded search parameters used to compare the
subject of a background check with a VGTOF record. An FBI NICS Section
official told us that by comparing data from the NICS transaction
(e.g., name, date of birth, and Social Security number) with data from
the VGTOF record, it generally is easy to determine if there is a
potential or valid match. The official told us that NICS personnel drop
the false hits from further consideration and follow up only on
transactions considered to be potential or valid matches. A false hit,
for example, could occur when the subject of a NICS transaction and the
subject of a VGTOF record have the same or a similar name but a
different date of birth and Social Security number.
As table 2 shows, the 44 NICS transactions with valid matches to
terrorist records in VGTOF were processed by the FBI's NICS Section and
11 states during the period February 3 through June 30, 2004. In
December 2004, FBI officials told us that during the 4 months following
June 2004--that is, during July through October 2004--the FBI's NICS
Section handled an additional 14 transactions with valid matches to
terrorist records in VGTOF. Of the 14 transactions with valid matches,
FBI officials told us that 12 were allowed to proceed because the
background checks found no prohibiting information, and 2 were denied
based on prohibiting information. It was beyond the scope of our work
to assess the reliability or accuracy of the additional data.
NICS Procedures Contain General Guidelines for Sharing Information with
Counterterrorism Officials:
Federal and state procedures--developed and disseminated under the
Department of Justice's direction--contain general guidelines that
allow FBI and state personnel to share information from NICS
transactions with federal counterterrorism officials, in the pursuit of
potentially prohibiting information about a prospective gun buyer.
However, the procedures do not address the specific types of
information that can or should be provided or the sources from which
such information can be obtained. Justice's position is that the types
of information that can be routinely provided generally are limited to
the information contained within the NICS database. Justice noted,
however, that NICS personnel can request additional information from a
gun dealer or from a law enforcement agency processing a firearms
permit application, if that information is requested by a
counterterrorism official in the legitimate pursuit of establishing a
match between the prospective gun buyer and a VGTOF record. Most state
personnel told us that--at the request of counterterrorism officials--
the state would contact the gun dealer or refer to the state permit
application to obtain and provide all available information related to
a NICS transaction. FBI counterterrorism officials told us that
receiving all available personal identifying information and other
details from terrorism-related NICS transactions could be useful in
conducting investigations.
FBI NICS Section Procedures and Guidance for Sharing NICS-Related
Information:
As mentioned previously, for all potential or valid matches with
terrorist records in VGTOF, NICS personnel are to begin their research
by contacting TSC to verify the match. According to the procedures used
by the FBI's NICS Section, during the screening process, TSC will ask
NICS staff to provide "all information available in the transaction,"
including the location of the firearms dealer, in the pursuit of
identifying a valid match. If a coordinated effort by TSC and FBI NICS
Section staff determines that the subject of the NICS transaction
appears to match a terrorist record in VGTOF--based on the name and
other descriptors--TSC is to refer the NICS Section staff to the FBI's
Counterterrorism Division for follow-up. Further, the procedures note
that there will be instances when NICS Section staff are contacted
directly by a case agent, who will ask the NICS Section staff to share
"additional information from the transaction or provide necessary
information to complete the transaction."
Justice's Position on Sharing NICS-Related Information:
The Department of Justice's position is that information from the NICS
database is not to be used for general law enforcement
purposes.[Footnote 11] Justice noted, however, that information about a
NICS transaction can be shared with law enforcement agents or other
government agencies in the legitimate pursuit of establishing a match
between the prospective gun buyer and a VGTOF record and in the search
for information that could prohibit the firearm transfer. Justice
explained that the purpose of NICS is to determine the lawfulness of
proposed gun transactions, not to provide law enforcement agents with
intelligence about lawful gun purchases by persons of investigative
interest. Thus, Justice told us that as set forth in NICS procedures,
all information about a transaction hitting on a VGTOF record can be
shared with field personnel in the pursuit of establishing whether the
person seeking to buy the gun is the same person with the terrorist
record in VGTOF. Justice added that this is done during the search for
prohibiting information about the person whose name hit on the VGTOF
record. Further, Justice noted that information about NICS transactions
also can be and routinely is shared by NICS with law enforcement
agencies when the information indicates a violation, or suspected
violation, of law or regulation.[Footnote 12]
According to Justice, the types of information that can be routinely
shared under NICS procedures generally are limited to the information
collected by or contained within the NICS database. Specifically,
Justice noted that--in verifying a match and determining whether
prohibiting information exists--the following information can be
routinely shared with TSC and counterterrorism officials:
* certain biographical data from the ATF Form 4473 collected from a gun
dealer for purposes of running a NICS check (e.g., name, date of birth,
race, sex, and state of residence);
* the specific date and time of the transaction;
* the name, street address, and phone number of the gun dealer; and:
* the type of firearm (e.g., handgun or long gun), if relevant to
helping confirm identity.
Justice told us that additional information contained in the ATF Form
4473, such as residence address or the number and make and model of
guns being sold, is not required or necessary to run a NICS check.
Justice noted, however, that there are times when NICS personnel will
contact a gun dealer and request a residence address on a person who is
determined to be prohibited from purchasing firearms--such as when
there is a hit on a prohibiting arrest warrant record--so that the
information can be supplied to a law enforcement agency to enforce the
warrant. Similarly, Justice told us that NICS procedures do not
prohibit NICS personnel from requesting a residence address from a gun
dealer--or from a law enforcement agency issuing a firearms permit in
the case of a permit check--if that information is requested by a
counterterrorism official in the pursuit of establishing a match
between the gun buyer and the VGTOF record. Justice noted that gun
dealers are not legally obligated under either NICS or ATF regulations
to provide this information to NICS personnel but frequently do
cooperate and provide the residence information when specifically
requested by NICS personnel.
Further, Justice told us that in cases in which a match is established
and the field does not have the residence address or wants the address
or other additional information on the Form 4473 regarding a
"proceeded" transaction, FBI personnel can then coordinate with ATF to
request the information from the gun dealer's records without a
warrant. Specifically, Justice cited provisions in the Gun Control Act
of 1968, as amended, that give the Attorney General the authority to
inspect or examine the records of a gun dealer without a warrant "in
the course of a reasonable inquiry during the course of a criminal
investigation of a person or persons other than the [federal firearms]
licensee."[Footnote 13] Justice explained that unless the person is
prohibited or there is an indication of a violation or potential
violation of law, FBI NICS personnel do not perform this investigative
function for the field. FBI field personnel can, however, get the
investigative information from gun dealers through coordination with
ATF.
We recognize that current procedures allow NICS personnel to share "all
information available in the transaction" with TSC or counterterrorism
officials, in the pursuit of identifying a true match and the discovery
of information that is prohibiting. However, given Justice's
interpretation, we believe that clarifying the procedures would help
ensure that the maximum amount of allowable information from terrorism-
related NICS transactions is consistently shared with counterterrorism
officials. For example, under current procedures, it is not clear if
the types of information that can or should be routinely shared are
limited to the information contained within the NICS database or if
additional information can be requested from the gun dealer or from the
law enforcement agency processing a permit application.
Types of Information Shared by the FBI's NICS Section:
The FBI's NICS Section did not maintain data on the types of
information it shared with TSC or counterterrorism officials to (1)
verify matches between NICS transactions and VGTOF records or (2)
pursue the existence of firearm possession prohibitors. According to
the NICS Section, such data are not maintained because NICS procedures
provide for the sharing of all information available from the
transaction, including the location of the gun dealer, in the pursuit
of identifying a true match. The NICS Section told us that data
required to initiate a NICS check--such as name, date of birth, sex,
race, state of residence, citizenship, and purpose code (e.g., firearm
check or permit check)--are captured in the NICS database and shared on
every NICS transaction. A NICS Section official told us that the
specific or approximate date and time of each transaction also is
consistently shared with TSC.
TSC did maintain data on the types of information shared by the NICS
Section. Specifically, in verifying matches, TSC data showed that NICS
Section staff shared basic identifying information about the
prospective purchasers (e.g., name, date of birth, and Social Security
number). However, TSC data showed that NICS Section staff did not
consistently share the specific location or phone number of the gun
dealer. According to the procedures used by the FBI's NICS Section, in
the pursuit of identifying a valid match, TSC will ask NICS staff to
provide the location of the gun dealer. The NICS Section told us that
this includes the specific location and phone number of the gun dealer.
According to TSC officials, once the FBI's NICS Section has shared
information on an identity match and TSC verifies the match, the
information provided by the NICS Section is forwarded to the FBI's
Counterterrorism Division. The Counterterrorism Division is to then
contact the NICS Section to follow up on the match. If the NICS Section
does not receive a response from the Counterterrorism Division, the
NICS Section is to aggressively pursue contacting the division to
resolve the transaction. Counterterrorism Division officials told us
the information provided by the NICS Section is routinely shared with
field agents familiar with the terrorist records in VGTOF.
NICS Section officials also told us that for each transaction with a
valid match to a VGTOF record, NICS Section staff talked directly to a
field agent to pursue prohibiting information.[Footnote 14] The NICS
Section did not maintain data on what, if any, additional information
from the NICS transactions was shared during these discussions.
However, NICS Section officials told us that in no cases did NICS staff
contact the gun dealer to obtain--and provide to counterterrorism
officials--additional information about the firearm transaction (e.g.,
information such as the prospective purchaser's residence address) that
was not submitted as part of the initial NICS check or already
contained within NICS. The NICS Section was aware of one instance in
which NICS staff was asked by a counterterrorism official to obtain
address information to assist in determining whether a VGTOF hit was a
valid match. In that case--involving a firearm permit check--the NICS
staff was able to get residence address information from the law
enforcement agency processing the permit application and provide it to
the counterterrorism official.
State Agency Procedures and Guidance for Sharing NICS-Related
Information:
According to the FBI-disseminated procedures used by state agencies, in
the process of contacting TSC, state staff are to share "all
information available in the transaction," including the location of
the firearms dealer, in the pursuit of identifying a true match and
determining the existence of prohibiting information. If TSC and state
staff make an identity match, TSC is to refer the state staff to the
FBI's Counterterrorism Division for follow-up. Unlike the procedures
used by the FBI's NICS Section, the state agency procedures do not
address whether there will be instances when state staff are to be
contacted directly by a case agent, or what additional information from
the NICS transaction could be shared during such contacts.
Most state agency officials we contacted told us they interpreted the
procedures as allowing them to share all available information related
to a NICS transaction requested by counterterrorism officials,
including any information contained on the forms used to purchase
firearms or apply for firearms permits. Also, most state agency
officials told us they were not aware of any restrictions or specific
FBI guidance on the types of information that could or could not be
shared with counterterrorism officials. According to the FBI's NICS
Section, the procedures used by state agencies note that in the process
of contacting TSC, state staff will share all information available in
the transaction in the pursuit of identifying a true match and the
discovery of information that is prohibiting. As mentioned previously,
we believe that clarifying the procedures would help ensure that the
maximum amount of allowable information from terrorism-related NICS
transactions is consistently shared with counterterrorism officials.
The state agencies we contacted did not maintain data on the types of
information they shared with TSC or counterterrorism officials to
verify matches between NICS transactions and VGTOF records or pursue
prohibiting information. However, in verifying matches, TSC data showed
that state agency staff shared basic identifying information about the
prospective purchasers (e.g., name, date of birth, and Social Security
number). TSC data also showed that state agency staff did not
consistently share the specific location or phone number of the gun
dealer. TSC officials told us they basically can identify the date and
time of a firearm transaction because TSC records the date and time
NICS staff call TSC, which occurs very shortly after the gun dealer
initiates the NICS check. TSC and FBI Counterterrorism Division
officials told us they handle state agency referrals the same way as
they handle referrals from the FBI's NICS Section.
Most of the state agency officials we contacted told us that if
requested by counterterrorism officials (e.g., FBI field agents), state
agency staff would either call the gun dealer or refer to the state
permit application to obtain and provide all available information
related to a NICS transaction. This information could include the
prospective purchaser's residence address and the type and number of
firearms involved in the transaction. Officials in three states told us
that state staff had shared the prospective purchaser's residence
address with FBI field agents. In one of the three cases, the field
agent was interested in the residence address because the individual
was in the country illegally and was wanted for deportation.
In its written comments on a draft of this report, Justice noted that
in the case of the individual who was in the country illegally, because
the individual was a prohibited person, there was no restriction on
obtaining and providing the additional information about the denied
transaction to a law enforcement agency after the identity was already
established. Justice also noted that regarding the sharing of
information from state firearm permit applications, there is no Brady
Act limitation on the state supplying transaction information to field
agents for investigative purposes after identity is established, as the
use and dissemination of state firearm permit information is governed
by state law.
NICS-Related Information Could Be Useful to Counterterrorism Officials:
According to officials from the FBI's Counterterrorism Division,
personal identifying information and other details about NICS
transactions with valid matches to terrorist records in VGTOF could be
useful to FBI field agents in conducting terrorism investigations.
Specifically, the officials noted the potential usefulness of locator
information, such as the prospective purchaser's residence address, the
date and time of the transaction, and the specific location of the gun
dealer at which the transaction took place. The officials also told us
that information on the type of firearm(s) involved in the transaction
and whether the transaction involved the purchase of multiple firearms
could also be useful to field agents. According to one official, in
general, agents would want as much information as possible that could
assist investigations. The FBI's NICS Section noted, however, that NICS
procedures provide for sharing information only when it is relevant to
determining a true match between a NICS transaction and a terrorist
record in VGTOF.
The FBI Has Not Routinely Monitored the States' Handling of Terrorism-
Related NICS Transactions; States Have Encountered Issues:
Although the Attorney General and the FBI ultimately are responsible
for managing NICS, the FBI has not routinely monitored the states'
handling of terrorism-related background checks. For example, the FBI
does not know the number and results of terrorism-related NICS
transactions handled by state agencies since June 30, 2004. Also, the
FBI has not routinely assessed the extent to which applicable state
agencies have implemented and followed procedures for handling NICS
transactions involving terrorist records in VGTOF. The FBI's plans call
for conducting audits of the states' compliance with the procedures
every 3 years. Our work revealed several issues state agencies have
encountered in handling NICS transactions involving terrorist records
in VGTOF, including delays in implementing procedures and a mishandled
transaction.
FBI Has Not Routinely Monitored the States' Handling of NICS
Transactions Involving VGTOF Records:
The FBI has not routinely monitored the states' handling of NICS
transactions involving terrorist records in VGTOF. For example, in
response to our request for information--covering February 3 through
June 30, 2004--the FBI's NICS Section reviewed all state NICS
transactions that hit on VGTOF records during this period to identify
potential matches. We used this information to follow up with state
agencies and create table 2 in this report. However, since June 30,
2004, the FBI's NICS Section has not tracked or otherwise attempted to
collect information on the number of NICS transactions handled by state
agencies that have resulted in valid matches with terrorist records in
VGTOF or whether such transactions were approved or denied. NICS
Section officials told us that while the NICS Section does not have
aggregate data, FBI officials at TSC and the FBI's Counterterrorism
Division are aware of valid-match transactions that state agencies
handle. Given the significance of valid matches, we believe it would be
useful for the FBI's NICS Section to have aggregate data on the number
and results of terrorism-related NICS transactions handled by state
agencies, particularly if the data indicate that known or suspected
terrorists may be receiving firearms. In response to our inquiries, in
October 2004, Justice and FBI NICS Section officials told us they plan
to study the need for information on state NICS transactions with valid
matches to terrorist records in VGTOF and the means by which such
information could be obtained.
Also, while the FBI has taken steps to notify state agencies about the
revised procedures for handling NICS transactions involving VGTOF
records--including periodic teleconferences and presentations at a May
2004 NICS User Conference[Footnote 15]--the FBI has not routinely
assessed the extent to which states have implemented and followed the
procedures. According to the FBI, the NICS Section performed an
assessment of all NICS transactions involving VGTOF records from
February 3, 2004 (the day the block on VGTOF records was removed) to
March 22, 2004, in order to assess the extent to which the states
implemented and followed procedures. For example, a NICS Section
official told us that NICS personnel called state agencies to make sure
they contacted TSC to verify matches and also contacted
counterterrorism officials to pursue prohibiting information. However,
according to the NICS Section, the assessment concluded on March 23,
2004, because NICS Section personnel could not fully assess the
reliability or accuracy of the information provided by the states.
Officials from two states told us that additional FBI oversight could
help ensure that applicable procedures are followed. One of the state
officials told us that such FBI oversight could be particularly
important since NICS transactions with valid matches to VGTOF records
are rare and there could be turnover of state personnel who process the
transactions.
As part of routine state audits the FBI conducts every 3 years, the FBI
plans to assess the states' handling of terrorism-related NICS
transactions. Specifically, every 3 years, the FBI plans to audit
whether designated state and local criminal justice agencies are
utilizing the written procedures for processing NICS transactions
involving VGTOF records. Moreover, for states with a decentralized
structure for processing NICS transactions--i.e., states with multiple
local law enforcement entities that conduct background checks (rather
than one central agency)--the goal of the audit is to determine if
local law enforcement agencies conducting the checks have in fact
received the written procedures, and if so, whether the procedures are
being followed.[Footnote 16] However, given that the relevant NICS
transactions involve known or suspected terrorists who could pose
homeland security risks, we believe that a 3-year audit cycle is not
sufficient. Also, under a 3-year audit cycle, information from NICS
transactions with valid matches to terrorist records in VGTOF may have
been destroyed pursuant to federal or state requirements and therefore
may not be available for review.[Footnote 17] Further, a 3-year audit
cycle may not be sufficient help ensure the timely identification and
resolution of issues state agencies may encounter in handling terrorism-
related NICS transactions.
States' Issues in Handling Terrorism-Related NICS Transactions:
State agencies have encountered several issues in handling NICS
transactions involving terrorist records in VGTOF. Specifically, of the
11 states we contacted, 9 states experienced one or more of the
following issues:
* 4 states had delays in implementing procedures,
* 3 states questioned whether state task forces were notified,
* 2 states had problems receiving responses from FBI field agents,
* 1 state mishandled a transaction, and:
* 3 states raised concerns about notifications.
Four States Had Delays in Implementing Procedures:
Four of the 11 states we contacted had delays of 3 months or more in
implementing NICS procedures for processing transactions that hit on
VGTOF records--procedures that were to have been effective on February
3, 2004. Each of the 4 states processed one NICS transaction with a
valid match to terrorist records in VGTOF before becoming aware of and
implementing the new procedures. In processing the transactions, our
work indicated that at least 3 of the 4 states did not contact TSC, as
required by the procedures. The fourth state did not have information
on how the transaction was processed. Although our work indicated that
the FBI provided the new procedures to state agencies in January 2004,
1 of the 4 states did not implement the procedures until after a state
official attended the May 2004 NICS User Conference. Officials in the
other 3 states were not aware of the new procedures at the time we made
our initial contacts with them in June 2004 (2 states) and August 2004
(1 state). Subsequent discussions with officials in 2 of the 3 states
indicated the new procedures have been implemented. In November 2004,
an official in the third state told us the procedures had not yet been
implemented.
Three States Questioned whether State Task Forces Were Notified:
Officials in 3 of the 11 states told us they believed their respective
state's homeland security or terrorism task forces should be notified
when a suspected terrorist attempts to purchase a firearm in their
state, but the officials said they did not know if TSC or the FBI
provided such notices. Officials from the FBI's Counterterrorism
Division did not know the extent to which FBI field agents notified
state and local task forces about terrorism-related NICS transactions,
but the officials told us that such notifications likely are made on a
need-to-know basis.[Footnote 18] Justice and FBI officials acknowledged
that this issue warrants further consideration.
Two States Had Problems Receiving Responses from FBI Field Agents:
Officials in 2 of the 11 states told us that in the pursuit of
prohibiting information, their respective states had problems receiving
responses from FBI field agents. These problems led to delays in each
state's ability to resolve one NICS transaction with a valid match to a
terrorist record in VGTOF. According to state officials, under the
respective state's laws, the two transactions were not allowed to
proceed during the delays, even though prohibiting information had not
been identified. The two transactions were resolved as follows:
* In response to our inquiries, in November 2004, an analyst in one of
the states contacted an FBI field agent, who told the analyst that the
subject of the background check had been removed from VGTOF. A state
official told us the NICS transaction was in a delay status for nearly
10 months.
* Regarding the other state, the NICS transaction was in an unresolved
status for a period of time specified by state law, after which it was
automatically denied. According to state officials, a state analyst
made initial contact with an FBI field agent, who said he would call
the analyst back. The state officials told us that the analyst made
several follow-up calls to the agent without receiving a response.
As of November 2004, the FBI had not responded to our request for
information regarding the issues or circumstances as to why the FBI
field agents had not contacted the two states' analysts.
One State Mishandled a Transaction:
One of the 11 states mishandled a NICS transaction with a valid match
to a terrorist record in VGTOF. Specifically, although the state
received notification of the VGTOF hit, the information was not relayed
to state staff responsible for processing NICS transactions.
Consequently, the transaction was approved without contacting TSC or
FBI counterterrorism officials. We informed the state that the FBI's
NICS Section had identified the transaction as matching a VGTOF record.
Subsequently, state personnel contacted TSC and an FBI field agent, who
determined that prohibiting information did not exist. State officials
told us that to help prevent future oversights, the state has revised
its internal procedures for handling NICS transactions that hit on
VGTOF records.
Three States Raised Concerns about Notifications:
Officials in 3 of the 11 states told us that the automatic (computer-
generated) notification of NICS transactions that hit on a certain
(sensitive) category of terrorist records in VGTOF is not adequately
visible to system users and could be missed by state personnel
processing NICS transactions. The FBI has taken steps to address this
issue and plans to implement computer system enhancements in June 2005.
Conclusions:
Under revised procedures effective February 3, 2004, all NICS
transactions with potential or valid matches to terrorist watch list
records in VGTOF are automatically delayed to give NICS personnel at
the FBI and applicable state agencies an opportunity to further
research the transactions for prohibiting information. The primary
purpose of the revised procedures is to better ensure that known or
suspected members of terrorist organizations who have disqualifying
factors do not receive firearms in violation of federal or state law.
An additional benefit has been to support the nation's war against
terrorism. Thus, it is important that the maximum amount of allowable
information from these background checks be consistently shared with
counterterrorism officials. However, our work revealed that federal and
state procedures for handling terrorism-related NICS transactions do
not clearly address the specific types of information that can or
should be routinely provided to counterterrorism officials or the
sources from which such information can be obtained. For example, under
current procedures, it is not clear if certain types of potentially
useful information, such as the residence address of the prospective
purchaser, can or should be routinely shared. Also, under current
procedures, it is not clear if FBI and state personnel can routinely
call a gun dealer or a law enforcement agency processing a permit
application to obtain and provide counterterrorism officials with
information not submitted as part of the initial NICS check. Further,
some types of information--such as the specific location of the dealer
from which the prospective purchaser attempted to obtain the firearm--
have not consistently been shared with counterterrorism officials.
Consistently sharing the maximum amount of allowable information could
provide counterterrorism officials with valuable new information about
individuals on terrorist watch lists.
The FBI has plans that call for conducting audits every 3 years of the
states' handling of terrorism-related NICS transactions. However, given
that these NICS background checks involve known or suspected terrorists
who could pose homeland security risks, more frequent FBI oversight or
centralized management is needed. The Attorney General and the FBI
ultimately are responsible for managing NICS, and the FBI is a lead law
enforcement agency responsible for combating terrorism. However, the
FBI does not have aggregate data on the number of NICS transactions
involving known or suspected members of terrorist organizations that
have been approved or denied by state agencies to date. Also, the FBI
has not assessed the extent to which the states have implemented and
followed applicable procedures for handling terrorism-related NICS
transactions. Moreover, under a 3-year audit cycle, relevant
information from the background checks may have been destroyed pursuant
to federal or state laws and therefore may not be available for review.
Further, more frequent FBI oversight or centralized management would
help address other types of issues we identified--such as several
states' delays in implementing procedures and one state's mishandling
of a terrorism-related NICS transaction.
Recommendations for Executive Action:
Proper management of NICS transactions with valid matches to terrorist
watch list records is important. Thus, we recommend that the Attorney
General (1) clarify procedures to ensure that the maximum amount of
allowable information from these background checks is consistently
shared with counterterrorism officials and (2) either implement more
frequent monitoring by the FBI of applicable state agencies or have the
FBI centrally manage all terrorism-related NICS background checks.
Agency Comments and Our Evaluation:
We requested comments on a draft of this report from the Department of
Justice. Also, we provided a draft of sections of this report for
comment to applicable agencies in the 11 states we contacted.
On January 7, 2005, Justice provided us written comments, which were
signed by the Acting Assistant Director of the FBI's Criminal Justice
Information Services Division. According to Justice and FBI officials,
the draft report was provided for review to Justice's Office of Legal
Policy, the FBI's NICS Section (within the Criminal Justice Information
Services Division), the FBI's Counterterrorism Division, and the
Terrorist Screening Center.
Justice agreed with our two recommendations. Specifically, regarding
our recommendation to clarify NICS procedures for sharing information
from NICS transactions with counterterrorism officials, Justice stated
that (1) the written procedures used by the FBI's NICS Section will be
revised and (2) additional written guidance should be provided to
applicable state agencies. Regarding our recommendation for more
frequent FBI oversight or centralized management of terrorism-related
NICS background checks, Justice has requested that the FBI report to
the department by the end of January 2005 on the feasibility of having
the FBI's NICS Section process all NICS transactions involving VGTOF
records.
In its written comments, Justice also provided (1) a detailed
discussion of the Brady Act's provisions relating to the retention and
use of NICS information and (2) clarifications on the states' handling
of terrorism-related NICS transactions. These comments have been
incorporated in this report where appropriate. The full text of
Justice's written comments is reprinted in appendix III.
Officials from 7 of the 11 states we contacted told us they did not
have any comments. Officials from the remaining 4 states did not
respond to our request for comments.
As arranged with your offices, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after its issue date. At that time, we will send copies of this
report to interested congressional committees and subcommittees. We
will also make copies available to others upon request. In addition,
the report will be available at no charge on GAO's Web site at http://
www.gao.gov.
If you or your staff have any questions about this report or wish to
discuss the matter further, please contact me at (202) 512-8777 or
ekstrandl@gao.gov, or my Assistant Director, Danny R. Burton, at (214)
777-5600 or burtond@gao.gov. Other key contributors to this report were
Eric Erdman, Lindy Coe-Juell, David Alexander, Katherine Davis, and
Geoffrey Hamilton.
Signed by:
Laurie E. Ekstrand:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Our overall objective was to review how the Federal Bureau of
Investigation's (FBI) National Instant Criminal Background Check System
(NICS) handles checks of prospective firearms purchasers that hit on
and are confirmed to match terrorist watch list records. The FBI and
designated state and local criminal justice agencies use NICS to
determine whether or not individuals seeking to purchase firearms or
apply for firearms permits are prohibited by law from receiving or
possessing firearms. Specifically, we addressed the following questions:
* What terrorist watch lists are searched during NICS background checks?
* How many NICS transactions have resulted in valid matches with
terrorist watch list records?
* For valid matches, what are federal and state procedures for sharing
NICS-related information with federal counterterrorism officials?
* To what extent does the FBI monitor the states' handling of NICS
transactions with valid matches to terrorist watch list records? What
issues, if any, have state agencies encountered in handling such
transactions?
Also, we obtained summary information on federal and state requirements
for retaining information related to NICS transactions with valid
matches to terrorist watch list records (see app. II).
Scope and Methodology:
In performing our work, we reviewed applicable federal laws and
regulations, FBI policies and procedures, and relevant statistics. We
interviewed federal officials at and reviewed documentation obtained
from the Department of Justice's Office of Legal Policy; the FBI's
Counterterrorism Division; the FBI's NICS Section and Criminal Justice
Information Services Division at Clarksburg, West Virginia; and the
Terrorist Screening Center (TSC), which is the multiagency center
responsible for consolidating federal terrorist watch lists. Generally,
our analyses focused on background checks processed by the FBI's NICS
Section and 11 states during the period February 3, 2004 (when the
FBI's procedures for handling terrorism-related NICS transactions
became effective), through June 30, 2004. The 11 states we contacted
(California, Colorado, Florida, Hawaii, Illinois, Massachusetts, North
Carolina, Pennsylvania, Tennessee, Texas, and Virginia) were those that
FBI data indicated--and the states subsequently confirmed--had
processed NICS checks (during the period February 3 through June 30,
2004) that resulted in one or more valid matches with terrorist watch
list records.
Terrorist Watch List Records Searched during NICS Background Checks:
To determine what terrorist watch list records are searched during NICS
background checks, we interviewed officials from the FBI's NICS Section
and the Criminal Justice Information Services Division--the FBI
division responsible for maintaining the Violent Gang and Terrorist
Organization File (VGTOF)--and obtained relevant documentation. Also,
we interviewed TSC officials and obtained documentation and other
relevant information on TSC's efforts to consolidate federal terrorist
watch list records into a single database. Eligible records from TSC's
consolidated database are shared with VGTOF and searched during NICS
background checks.
Number of NICS Transactions with Valid Matches to Terrorist Watch List
Records:
To determine the number of NICS transactions that resulted in valid
matches with terrorist records in VGTOF--during the period February 3
through June 30, 2004--we interviewed officials from the FBI's NICS
Section and reviewed FBI data. The FBI did not have comprehensive or
conclusive information on transactions handled by state agencies, but
FBI data indicated that 12 states (California, Colorado, Florida,
Georgia, Hawaii, Illinois, Massachusetts, North Carolina, Pennsylvania,
Tennessee, Texas, and Virginia) likely had processed one or more NICS
transactions with a valid match to terrorist records in VGTOF during
this period. We interviewed agency officials in the 12 states to
corroborate the FBI data and to obtain additional information about the
related background checks (e.g., whether the transactions were allowed
to proceed or were denied). We also worked with officials from the
FBI's NICS Section and state agencies to resolve any inconsistencies.
For example, our work revealed that 1 of the 12 states (Georgia) had
not processed a terrorism-related NICS transaction during the period we
reviewed. As such, our subsequent interviews and analysis focused on
background checks processed by the FBI's NICS Section and the remaining
11 states.
Procedures for Sharing NICS-Related Information with Counterterrorism
Officials:
To determine federal and state procedures for sharing NICS-related
information with federal counterterrorism officials, we reviewed
applicable federal laws and regulations, including the Brady Handgun
Violence Prevention Act[Footnote 19] and NICS regulations. We also
reviewed FBI and state procedures for handling NICS transactions
involving terrorist records in VGTOF--procedures that were developed
and disseminated under the Department of Justice's direction. We
interviewed officials from the Department of Justice's Office of Legal
Policy, the FBI's NICS Section, and the 11 states to determine the
scope and types of NICS-related information that could be shared with
federal counterterrorism officials under applicable procedures.
Further, for NICS transactions with valid matches to terrorist records
in VGTOF--during the period February 3 through June 30, 2004--we
interviewed officials from the FBI's NICS Section and Counterterrorism
Division, TSC, and the 11 states to determine the types of NICS-related
information that were shared with counterterrorism officials.
FBI Monitoring of the States' Handling of NICS Transactions and Issues
Encountered by State Agencies:
To determine the extent to which the FBI has monitored the states'
handling of NICS transactions involving VGTOF records, we interviewed
officials from the Department of Justice's Office of Legal Policy, the
FBI's NICS Section, and state agencies. We reviewed documents the FBI
used to notify state agencies about the procedures for handling
terrorism-related NICS transactions. We also reviewed data and other
information the FBI maintained on transactions handled by the states.
Further, we obtained information on the FBI's plans to periodically
audit whether designated state and local criminal justice agencies are
utilizing the written procedures for processing NICS transactions
involving VGTOF records. To identify issues state agencies have
encountered in handling terrorism-related NICS transactions, we
interviewed officials from the 11 states. For identified issues, we
interviewed officials from the Department of Justice and the FBI's NICS
Section and Counterterrorism Division to discuss the states' issues and
obtain related information.
Federal and State Requirements for Retaining Information from Terrorism-
Related NICS Transactions:
To determine federal and state requirements for retaining information
from terrorism-related NICS transactions, we interviewed officials from
the FBI's NICS Section and state agencies and reviewed applicable
federal laws and regulations. We also reviewed a Department of Justice
report that addressed the length of time the FBI and applicable state
agencies retain information related to firearm background
checks.[Footnote 20] Further, we interviewed officials from the FBI and
reviewed relevant FBI documents to determine how the federal 24-hour
destruction requirement for NICS records of allowed firearms transfers
would affect the FBI's NICS Section and state policies and procedures.
Data Reliability:
We performed our work from April through December 2004 in accordance
with generally accepted government auditing standards. We were unable
to fully assess the reliability or accuracy of the data regarding valid
matches with terrorist records in VGTOF because the data related to
ongoing terrorism investigations. However, we discussed the sources of
data with FBI, TSC, and state agency officials and worked with them to
resolve any inconsistencies. We determined that the data were
sufficiently reliable for the purposes of this review. The results of
our interviews with officials in the 11 states may not be
representative of the views and opinions of others nationwide.
[End of section]
Appendix II: Federal and State Requirements for Retaining Information
from Terrorism-Related NICS Transactions:
Federal Records Retention Requirements: Next-Day Destruction:
On July 21, 2004, the FBI's NICS Section implemented a provision in
federal law that requires any personal identifying information in the
NICS database related to allowed firearms transfers to be destroyed
within 24 hours after the FBI advises the gun dealer that the transfer
may proceed.[Footnote 21] The law does not provide an exception for
retaining information from NICS transactions with valid matches to
terrorist records in VGTOF. Thus, information in the NICS database from
such transactions also is subject to the federal 24-hour destruction
provision. Before the 24-hour destruction provision took effect,
federal regulations permitted the retention of all information related
to allowed firearms transfers for up to 90 days.[Footnote 22] The
federal 24-hour retention statute does not specifically address whether
identifying information in the NICS database related to permit checks-
-which do not involve gun dealers--is subject to 24-hour destruction.
According to the FBI's NICS Section, the 24-hour destruction
requirement does not apply to permit checks. Rather, information
related to permit checks is maintained in the NICS database for up to
90 days after the background check is initiated.
In implementing the 24-hour destruction provision, the FBI's NICS
Section revised its policies and procedures to allow for the retention
of nonidentifying information related to each proceeded background
check for up to 90 days (e.g., information about the gun dealer).
According to the FBI, by retaining the nonidentifying information, the
FBI's NICS Section can initiate firearm retrieval actions when new
information reveals that an individual who was approved to purchase a
firearm should not have been. The nonidentifying information is
retained for all NICS transactions that are allowed to proceed,
including transactions involving subjects of terrorist watch lists.
Also, in implementing the 24-hour destruction provision, the FBI's NICS
Section created a new internal classification system for transactions
that are "open." Specifically, if NICS staff cannot make a final
determination (i.e., proceed or denied) on a transaction within 3
business days, the NICS Section is to automatically change the status
to open. The NICS Section maintains personal identifying information
and other details related to open transactions until either (1) a final
determination on the transaction is reached or (2) the expiration of
the retention period for open transactions, which is a period of no
more than 90 days. Regarding terrorism-related NICS transactions, the
open designation would be used, for example, if NICS Section staff did
not receive responses from FBI field agents within 3 business days.
The 24-hour destruction provision did not affect federal policies for
retaining NICS records related to denied firearms transactions. Under
provisions in NICS regulations, personal identifying information and
other details related to denied firearms transactions are retained
indefinitely. Also, according to Justice and FBI officials, there are
no limitations on the retention of NICS information by TSC or
counterterrorism officials, who received the information to verify
identities and determine whether firearm-possession prohibitors exist.
State Records Retention Requirements Vary:
Among the states, requirements vary for retaining records of allowed
transfers of firearms.[Footnote 23] Some states purge a firearm
transaction record almost immediately after the firearm sale is
approved, while other states retain such records for longer periods of
time. Under NICS regulations, state records are not subject to the
federal 24-hour destruction requirement if the records are part of a
system created and maintained pursuant to independent state law. Thus,
states with their own state law provisions may retain records of
allowed firearms transfers for longer than 24 hours. The retention of
state records related to denied firearms transactions varies.
[End of section]
Appendix III: Comments from the Department of Justice:
U.S. Department of Justice:
Federal Bureau of Investigation:
Clarksburg, WV 26306:
January 7, 2005:
Ms. Laurie Ekstrand:
Director, Homeland Security and Justice Issues:
United States Government Accountability Office:
Washington, DC 20548:
Re: GAO-05-127:
Dear. Ms. Ekstrand:
Thank you for the opportunity to review the Government Accountability
Office (GAO) draft report entitled "GUN CONTROL AND TERRORISM: FBI
Could Better Manage Firearm-Related Background Checks Involving
Terrorist Watch List Records." The draft report has been reviewed by
various components of the Department of Justice (DOJ), including the
FBI Criminal Justice Information Services (CJIS) Division, National
Instant Criminal Background Check System (NICS) Section. This letter
constitutes the formal Department of Justice comments to the draft
report and it is requested that it be included in GAO's final report.
The report reviews the experience of the NICS in implementing new
procedures under which the NICS delays checks on firearms transactions
that hit on a terrorist watch list record in the National Crime
Information Center's (NCIC) Violent Gang and Terrorist Organization
File (VGTOF). The new procedures began in February 2004, pursuant to a
November 2003 DOJ directive, and required the NICS to delay such
transactions so that NICS personnel can coordinate with FBI field
agents to determine whether the agents have prohibiting information
about a prospective purchaser on the watch list that is not yet
available in the automated databases checked by the NICS. Because
persons placed on a terrorist watch list are not prohibited from
possessing or receiving firearms [NOTE 1], before the February 2004
change in procedures, such transactions had not been delayed unless the
NICS check hit upon another prohibiting record. As the report notes,
the new procedures have been successful in enabling the NICS to deny
two gun transactions during the five-month period reviewed based on
prohibiting information provided by the FBI field agents that had not
yet been entered in the automated databases checked by NICS.
One of the main points made in the report is that the existing
procedures are not clear enough as to what information can be shared
with FBI field agents when processing a NICS checks hitting on an NCIC
VGTOF record. In particular, the report suggests that the procedures
be more explicit with respect to when a prospective purchaser's
residence address can and should be obtained and shared by NICS with
FBI field agents. The FBI's NICS VGTOF Standard Operating Procedures
(SOP) explicitly provide that all information about a transaction that
is obtained in the course of processing a NICS check, including the
name and address of the gun dealer, will be shared by the NICS with law
enforcement agents or other government agencies to establish whether
the person seeking to buy the gun is the same person with the record in
the NCIC VGTOF. This information sharing is done in legitimate pursuit
of prohibiting information about the person whose name hit on the NCIC
VGTOF record. In addition, although not explicitly stated in the FBI's
NICS VGTOF SOP, it is understood by the NICS personnel that if
requested by an FBI field agent for purposes of establishing the
identity of the purchaser with the NCIC VGTOF record, the NICS will
contact a gun dealer or a firearms licensing authority to request the
residence address of the prospective purchaser, information that is not
required for running a NICS check. We agree, however, that this
procedure concerning a follow-up call to obtain a residence address at
the request of an FBI field agent should be made a part of the written
FBI's NICS VGTOF SOP, and the FBI will so revise its written procedures.
A discussion of the Brady Handgun Violence Prevention Act's (Brady Act)
provisions relating to the retention and use of NICS information is
helpful in understanding the information sharing provisions of FBI's
NICS VGTOF procedures. The Brady Act restricts the use of identifying
information in the NICS about "proceeded" gun transactions, prohibiting
the use of such information to establish a national registry of firearm
owners and requiring its destruction to protect the privacy of lawful
gun purchasers. Congress has recently imposed a new legal requirement,
set forth in the 2004 and 2005 Omnibus Appropriations bills, that such
identifying information is destroyed by the NICS within 24 hours of
advising a gun dealer that a transaction can proceed. Thus, since the
establishment of the NICS in November 1998, the DOJ has taken the
position that information from the NICS about lawful gun transactions
is not to be used for general law enforcement purposes. However,
because the purpose of the NICS is to determine the lawfulness of
proposed gun transactions, identifying information about a transaction
that has not been "proceeded" can be shared by the NICS with law
enforcement agents or other government agencies in legitimate pursuit
of potentially prohibiting information about a proposed firearm
transferee. Thus, as set forth in the FBI's NICS VGTOF procedures, all
NICS information about a transaction hitting on an NCIC VGTOF record
can be shared with field personnel in pursuit of establishing whether
the person seeking to buy the gun is the same as the person with the
record in the NCIC VGTOF.
There is no similar limitation under the Brady Act on sharing NICS
information with law enforcement agencies about persons determined to
be prohibited from possessing or receiving a firearm, and NICS
information on "denied" transactions can be and routinely is provided
to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
In addition, although NICS information about "proceeded" transactions
cannot, because of these legal restrictions, be shared with law
enforcement officials just to provide notice of lawful gun purchases by
persons of investigative interest, information about NICS transactions,
including transactions that are eventually "proceeded," can be and
routinely is shared by the NICS with law enforcement agencies when the
information indicates a violation, or suspected violation, of law or
regulation. Thus, Routine Use C of the NICS Privacy Act Notice provides:
If, during the course of any activity or operation of the system
authorized by the regulations governing the system (28 CFR, part 25,
subpart A), any record is found by the system which indicates, either
on its face or in conjunction with other information, a violation or
potential violation of law (whether criminal or civil) and/or
regulation, the pertinent record may be disclosed to the appropriate
agency/organization/task force (whether Federal, State, local, joint,
or tribal) and/or to the appropriate foreign or international agency/
organization charged with the responsibility of investigating,
prosecuting, and/or enforcing such law or regulation ...
63 FR 65226-27 (Nov. 25, 1998).
In general, the FBI NICS Section only collects certain biographical
data on a prospective gun purchaser for purposes of running a NICS
check (e.g., name, date of birth, sex, race, state of residence).
Additional information contained in the ATF Form 4473 maintained by the
gun dealer, such as a residence address or the number and make and
model of guns being sold, is not required or necessary to run a NICS
check. There are, however, times when the NICS will contact a gun
dealer and request a residence address on a person that is determined
to be prohibited, such as when there is a hit on a prohibiting arrest
warrant record, so that the information can be supplied, pursuant to
Routine Use C, to a law enforcement agency that can enforce the
warrant. Gun dealers are not legally obligated under the NICS or the
ATF regulations to provide this information to the NICS, but frequently
do cooperate and provide the residence information when specifically
requested by the NICS.
Similarly, when requested by a counterterrorism official for the
purpose of establishing identity, additional information about the
transaction can and is sought by the FBI NICS Section. The FBI's NICS
VGTOF SOP states: "There will be instances when the VGTOF Examiners
[NICS personnel specially assigned to handle transaction VGTOF hits]
are contacted directly by the case agent. The case agent will ask the
VGTOF Examiner to share additional information from the transaction or
provide necessary information to determine true identity and complete
the transaction." The VGTOF Examiners will provide any additional
information available on the transaction requested by the
counterterrorism officials in order to resolve the identity issue. The
additional information can include the residence address of the
prospective gun buyer or firearms permit applicant obtained through a
special request to the gun dealer or firearms permitting authority that
initiated the check. If the information is provided in response to the
request, the NICS will share that information with the counterterrorism
official for the purpose of establishing true identity of the
prospective purchaser. In addition, FBI field personnel can obtain
additional information on proceeded transactions from gun dealers for
investigative purposes through coordination with ATF. Thus, if identity
is already established and the person is a lawful purchaser,
counterterrorism official, if they do not already know the subject's
residence address or wish to see address or other additional
information recorded on the ATF Form 4473, can coordinate with the ATF
to obtain from the gun dealer additional information on the ATF Form
4473. If identity is established and the subject is a prohibited
person, the NICS will attempt to obtain the residence address from the
gun dealer if requested by the counterterrorism official. As noted
above, the FBI plans to make these procedures an explicit part of the
written FBI's NICS VGTOF SOP used by VGTOF Examiners.
A special request for additional information was made by the FBI NICS
Section in one instance when a counterterrorism official requested the
residence address of a subject while coordinating with FBI NICS
personnel in the pursuit of determining a true match on a terrorism
related NCIC VGTOF record. That case involved a firearm permit
application, and the FBI NICS Examiner was able to obtain the subject's
residence address from the law enforcement agency processing the permit
application and provide it to the counterterrorism official in pursuit
of determining a true match. In the rest of the cases involving NCIC
VGTOF hits processed by the FBI NICS Section to date, the FBI field
personnel have been able to determine whether a match exists from the
information the NICS received from the gun dealer when initiating a
NICS check and without a special call to the gun dealer or firearm
permitting authority requesting a residence address.
The report also makes the following observation about the practice of
state personnel in seeking and providing additional information to FBI
field personnel when processing transactions hitting on VGTOF records
in Point-of-Contact (POC) states:
Most of the state agency officials we contacted told us that if
requested by counterterrorism officials (e.g., FBI field agents), state
agency staff would either call the gun dealer or refer to the state
permit application to obtain and provide all available information
related to a NICS transaction. This information could include the
prospective purchaser's residence address and the type and number of
firearms involved in the transaction. Officials in three states told us
that state staff had shared the prospective purchaser's residence
address with FBI field agents. In one of the three cases, the field
agent was interested in the residence address because the individual
was in the country illegally and was wanted for deportation.
We note that, contrary to the report's implication, in the case
involving the illegal alien, because the individual was a prohibited
person, there was no restriction on obtaining and providing the
additional information about the denied transaction to a law
enforcement agency after identity was already established. In addition,
in the case of information from state firearm permit applications,
there is no Brady Act limitation on the state supplying transaction
information to the FBI field agents for investigative purposes after
identity is established, as the use and dissemination of state firearm
permit information is governed by state law. It is not clear from the
report whether in other instances the state sought the information from
a gun dealer after identity was already established or was requested by
the field as part of the effort to establish identity. Written guidance
provided to the POC states makes it clear that all information
concerning a transaction may be provided in pursuit of establishing a
true match. We agree, however, that additional written guidance should
be provided to the POC states clarifying when additional information
may be sought from a gun dealer and shared with FBI field personnel.
Finally, in discussing how POC states are implementing the procedures
for processing NICS checks that hit on NCIC VGTOF records, the report
notes that: (1) there are inconsistencies in how state agency staff
have implemented the procedures and how successful they have been in
getting responses from FBI field agents; (2) despite an initial effort
by the FBI to obtain information about NCIC VGTOF transactions
processed by the POC states, the FBI has been unable to obtain complete
aggregate information concerning the number of POC transactions with
confirmed matches to the NCIC VGTOF (i.e., although the Terroist
Screening Center and FBI field agents know when there is a confirmed
match, the FBI NICS Section does not have aggregate match data for POC
state NCIC VGTOF hits in the same way that it has that data for NCIC
VGTOF hits that it processes); and (3) there is a need for more
oversight of how the POC states are implementing the NCIC VGTOF hit
procedures to ensure there is consistency in how the NICS checks for
prohibiting information on these transactions.
We note that the since implementing these procedures in February 2004,
it has become apparent that the volume of affected transactions is low
enough that all of the NCIC VGTOF hits could be processed by the FBI
NICS Section. Given that fact, together with the report's findings
concerning inconsistencies in POC states' handling of the transactions,
and the fact that the effort involved in ensuring consistency in POC
implementation of the procedures would be greater than simply having
the FBI NICS Section process POC transactions with NCIC VGTOF hits, the
FBI has been requested to report to the DOJ by the end of January 2005
on the feasibility of having all NCIC VGTOF hits processed by the FBI
NICS Section.
Thank you for the opportunity to comment on your report.
Sincerely yours,
Signed by:
Jerome M. Pender:
Acting Assistant Director:
Criminal Justice Information Services Division:
NOTES:
[1] As noted in your report, under federal law, persons are prohibited
from receiving or possessing a firearm if they (1) have been convicted
of, or are under indictment for, a felony; (2) are a fugitive from
justice; (3) are unlawful drug users or are addicted to a controlled
substance; (4) have been involuntarily committed to a mental
institution or judged to be mentally defective; (5) are aliens
illegally or unlawfully in the United States, or certain other aliens
admitted under a nonimmigrant visa; (6) have been dishonorably
discharged from the military; (7) have renounced their U.S.
citizenship; (8) are under a qualifying domestic violence restraining
order; or (9) have been convicted of a misdemeanor crime of domestic
violence. See Title 18, United States Code, Sections 922(g) and (n).
[End of section]
FOOTNOTES
[1] Brady Handgun Violence Prevention Act, Public Law 103-159, 107
Stat. 1536 (1993).
[2] In December 2004, FBI officials told us that--during the period
July 1 through October 31, 2004--the FBI handled an additional 14 NICS
transactions with valid matches to terrorist watch list records, of
which 12 were allowed to proceed and 2 were denied. It was beyond the
scope of our work to assess the reliability or accuracy of the
additional data.
[3] Under federal law, persons are prohibited from receiving a firearm
if they (1) have been convicted of, or are under indictment for, a
felony; (2) are a fugitive from justice; (3) are unlawful drug users or
are addicted to a controlled substance; (4) have been involuntarily
committed to a mental institution or judged to be mentally defective;
(5) are aliens illegally or unlawfully in the United States, or certain
other aliens admitted under a nonimmigrant visa; (6) have been
dishonorably discharged from the military; (7) have renounced their
U.S. citizenship; (8) are under a qualifying domestic violence
restraining order; or (9) have been convicted of a misdemeanor crime of
domestic violence. See 18 U.S.C. § 922(g) and § 922(n).
[4] In earlier reports, we provided a detailed overview of NICS
operations. See GAO, Gun Control: Implementation of the National
Instant Criminal Background Check System, GAO/GGD/AIMD-00-64
(Washington, D.C.: Feb. 29, 2000); GAO, Gun Control: Options for
Improving the National Instant Criminal Background Check System, GAO/
GGD-00-56 (Washington, D.C.: Apr. 12, 2000); and GAO, Gun Control:
Opportunities to Close Loopholes in the National Instant Criminal
Background Check System, GAO-02-720 (Washington, D.C.: July 12, 2002).
[5] 18 U.S.C. § 922(t)(1)(B)(ii).
[6] Pursuant to Homeland Security Presidential Directive 6, TSC was
established on September 16, 2003, to consolidate the government's
approach to terrorism screening and provide for the appropriate and
lawful use of terrorist information in screening processes.
[7] See GAO, Information Technology: Terrorist Watch Lists Should Be
Consolidated to Promote Better Integration and Sharing, GAO-03-322
(Washington, D.C.: Apr. 15, 2003).
[8] Public Law 108-177, 117 Stat. 2599, 2623, 2624 (2003).
[9] Additional information on federal and state requirements for
retaining records related to NICS transactions is presented in appendix
II.
[10] The FBI did not have data on the specific number of NICS
transactions that hit on terrorist records in VGTOF. However, for the
period February 3 through June 30, 2004, FBI data showed that a total
of 1,660 NICS transactions hit on either terrorist or violent gang
records in VGTOF. FBI officials estimated that approximately 40 percent
(about 650) of the 1,660 hits were on terrorist records.
[11] As a basis for its position related to proceeded gun transactions,
Justice noted that the Brady Act restricts the use of identifying
information in NICS by prohibiting the use of such information to
establish a national registry of firearm owners and requiring
destruction of the information to protect the privacy of lawful gun
purchasers. In addition, Justice noted that recent appropriations act
provisions require such identifying information in NICS be destroyed
within 24 hours of advising a gun dealer that a transaction may proceed.
[12] See NICS Privacy Act Notice, Routine Use C, 63 Fed. Reg. 65,223,
65,224 (1998).
[13] See 18 U.S.C. § 923(g)(1)(B)(i). In general, the Attorney General
has delegated to the Bureau of Alcohol, Tobacco, Firearms and
Explosives--subject to his and the Deputy Attorney General's direction-
-the authority to investigate, administer, and enforce the laws
relating to firearms, including exercising the function and powers of
the Attorney General under various federal firearms laws (see 28 C.F.R.
§ 0.130).
[14] We did not interview FBI field agents because the NICS
transactions and related VGTOF records involved ongoing terrorism
investigations. Instead, we interviewed officials from the FBI's
Counterterrorism Division who were responsible for coordinating with
field agents to determine whether or not they were aware of prohibiting
information.
[15] Each year, the FBI's NICS Section sponsors a national conference
for designated state and local agencies that conduct background checks,
during which various issues related to the NICS program are addressed.
[16] According to the Department of Justice's Bureau of Justice
Statistics, over 3,000 state and local agencies conduct background
checks related to firearm transfers.
[17] As mentioned previously, appendix II presents information on
federal and state requirements for retaining information related to
NICS transactions with valid matches to terrorist watch list records.
[18] As mentioned previously, we did not contact FBI field agents
because the transactions involved ongoing terrorism investigations.
[19] Brady Handgun Violence Prevention Act, Public Law 103-159, 107
Stat. 1536 (1993).
[20] Department of Justice, Bureau of Justice Statistics, Survey of
State Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701
(Washington, D.C.: Aug. 2004).
[21] See section 617 of Public Law 108-199, 118 Stat. 3, 95 (2004).
[22] We previously reported on Justice's then-proposed next-day
destruction policy. See GAO, Gun Control: Potential Effects of Next-Day
Destruction of NICS Background Check Records, GAO-02-653 (Washington,
D.C.: Jul. 10, 2002).
[23] See Department of Justice, Bureau of Justice Statistics, Survey of
State Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701
(Washington, D.C.: Aug. 2004).
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