[Congressional Record Volume 154, Number 69 (Tuesday, April 29, 2008)]
[Senate]
[Pages S3512-S3513]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LAUTENBERG (for himself, Mr. Menendez, Mrs. Feinstein, Mr. 
        Levin, Mr. Lieberman, Mr. Whitehouse, Mr. Reed, and Mr. 
        Schumer):
  S. 2935. A bill to prevent the destruction of terrorist and criminal 
national instant criminal background check system records; to the 
Committee on the Judiciary.
  Mr. LAUTENBERG. Mr. President, I rise to introduce the Preserving 
Records of Terrorist and Criminal Transactions, or PROTECT Act of 2008. 
I am proud to be joined by cosponsors Senators Feinstein, Levin, 
Lieberman, Menendez, Reed, Schumer, and Whitehouse.
  In 1994, we passed the Brady Law, which requires criminal background 
checks for all guns sold by licensed firearm dealers. In the 14 years 
since it was enacted, the Brady law has prevented more than 1.5 million 
felons and other dangerous individuals from buying guns. I am proud to 
say that more than 150,000 of those denials have been to convicted 
domestic abusers because of a law I wrote in 1996.
  Every time a Brady background check is conducted, the FBI's National 
Instant Criminal Background Check System--or NICS--creates an audit 
log. The audit log includes information about the purchaser, the 
weapon, and the seller.
  The information could be extremely valuable to the FBI. The agency 
could use it to help determine whether gun dealers are complying with 
the background check requirements, to help law enforcement fight crime 
by figuring out whether a criminal has been able to buy a gun, or even 
to help prevent terrorist attacks.
  Yet, despite this information's value in fighting crime and 
terrorism, the FBI destroys the background check data.
  In most cases, the audit log is destroyed within 24 hours after the 
sale is allowed to go through. That's because every year since 2004, a 
rider has been attached to appropriations bills mandating that the FBI 
destroy the background check record within 24 hours of allowing the gun 
sale to proceed. That means that the purchaser's name, social security 
number, and all other personally identifying information are purged 
from the system within 24 hours.
  Once this information is destroyed, the FBI can no longer run 
searches using a person's name. So if a local law enforcement agency 
were to call the FBI to see if a criminal on the loose had purchased 
any guns recently, the FBI would not be able to search its database 
using the suspect's name if the gun was purchased two months, two 
weeks, or even two days earlier.
  This destruction requirement hinders the FBI's ability to help the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives verify that gun 
dealers are conducting background checks properly.

[[Page S3513]]

Before the destruction requirement, ATF could compare the NICS records 
to the paper records that gun dealers are required to keep on file to 
determine whether the dealers were submitting all the required 
information.

  The destruction requirement also prevents the FBI from determining 
whether a felon, fugitive, or other person who is prohibited from 
having a gun was able to purchase one in violation of the law, and to 
retrieve guns from people who are prohibited from having them. The FBI 
has only three days to conduct background checks, and sometimes 
receives information after already approving a sale that the purchaser 
was legally prohibited from having a firearm. But without the 
background check information at hand, the FBI has no way of retrieving 
guns from these dangerous people who never should have been allowed to 
purchase them in the first place.
  Prior to the 24-hour destruction requirement, the Government 
Accountability Office found that over a 6-month period the FBI used 
retained Brady background check records to initiate 235 actions to 
retrieve illegally possessed guns. According to GAO, 228--97 percent--
of those retrieval actions would not have been possible under a 24-hour 
destruction policy. Those are hundreds of guns in the hands of felons, 
fugitives and other dangerous people. We have the power to stop them, 
and we should use it.
  Up until now, I have been talking about dangerous people who are 
prohibited from having guns under current federal law, such as felons, 
fugitives, and convicted domestic abusers. But there is one category of 
very dangerous people who are allowed to purchase firearms under 
current federal law-known and suspected terrorists. It is hard to 
believe, but nothing in our federal gun laws prevents known and 
suspected terrorists from purchasing guns.
  And we know that terrorists exploit this Terror Gap in our gun laws. 
In a 2005 report that Senator Biden and I requested, GAO found that 
during a four-month period in 2004, a total of 44 firearm purchase 
attempts were made by known or suspected terrorists. In 35 of those 
cases, the FBI authorized the transactions to proceed because FBI field 
agents were unable to find any disqualifying information within the 
federally prescribed three-day background check period. I have 
introduced another bill--the Denying Firearms and Explosives to 
Dangerous Terrorists Act S. 1237--to close this Terror Gap, and I urge 
my colleagues to support that bill as well.
  Not only do our current laws allow terrorists to buy guns, but the 
FBI also destroys the background check records from terrorist gun 
purchases within 90 days. That means that a joint terrorism task force 
conducting a terror investigation over the course of months or even 
years cannot call the FBI to find out if the target of the 
investigation--someone who is on the terror watch list--purchased 
firearms last year.
  The PROTECT Act would address both of these record retention problems 
by preserving records that are critical to effective background checks, 
law enforcement, and terrorism prevention. Specifically, it would:
  (1) require the FBI to retain for 10 years all background check 
records involving a valid match to a terror watch list; and
  (2) require the FBI to retain for at least 180 days all other 
background check records.
  This is a common-sense public safety measure. At a time when 32 
people are murdered as a result of gun violence every day in the United 
States and we are fighting against terrorism, the last thing we should 
be doing is prematurely destroying a valuable anti-crime and anti-
terrorism tool that we have at our fingertips.
  At a Commerce, Justice, Science and Related Agencies Appropriations 
Subcommittee hearing last year, I asked FBI Director Robert Mueller if 
he thought that background check records should be retained for more 
than 24 hours. He replied, ``[T]here is a substantial argument in my 
mind for retaining records for a substantial period of time.'' That's 
what this bill would do, and I hope my Senate colleagues will join me 
in passing it swiftly.
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