Gun Control and Terrorism: FBI Could Better Manage
Firearm-Related Background Checks Involving Terrorist Watch List
Records (19-JAN-05, GAO-05-127).
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.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-127
ACCNO: A15896
TITLE: Gun Control and Terrorism: FBI Could Better Manage
Firearm-Related Background Checks Involving Terrorist Watch List
Records
DATE: 01/19/2005
SUBJECT: Counterterrorism
Federal/state relations
Firearms
National preparedness
Gun control law
Investigations by federal agencies
Law enforcement agencies
Terrorism
Background checks
Homeland security
Policies and procedures
FBI National Instant Criminal Background
Check System
FBI Violent Gang and Terrorist
Organization File
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GAO-05-127
United States Government Accountability Office
GAO
Report to Congressional Requesters
January 2005
GUN CONTROL AND TERRORISM
FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist
Watch List Records
GAO-05-127
[IMG]
January 2005
GUN CONTROL AND TERRORISM
FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist
Watch List Records
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
Results of background checks
Agency Valid matches
Allowed to proceed Denied
Results pending or records not available
FBI 2119 2 0
State agencies 23 16 4 3
Source: GAO analysis of FBI data and interviews with state agency
officials.
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.
United States Government Accountability Office
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
1
3 5
8
11
14
20 25 26 26
Appendix I Objectives, Scope, and Methodology 28
Objectives 28
Scope and Methodology 28
Data Reliability 31
Appendix II Federal and State Requirements for Retaining
Information from Terrorism-Related NICS
Transactions 32
Federal Records Retention Requirements: Next-Day 32
Destruction
State Records Retention Requirements Vary 33
Appendix III Comments from the Department of Justice
Tables
Table 1: Watch Lists Maintained by Federal Agencies 9 Table 2: NICS
Transactions with Valid Matches to Terrorist Records in VGTOF, February 3
through June 30, 2004 12
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
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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.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
1Brady Handgun Violence Prevention Act, Public Law 103-159, 107 Stat. 1536
(1993).
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:
o What terrorist watch lists are searched during NICS background checks?
o How many NICS transactions have resulted in valid matches with
terrorist watch list records?
o For valid matches, what are federal and state procedures for sharing
NICS-related information with federal counterterrorism officials?
o 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.2
2In 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.
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
validmatch 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
Background
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.
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.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
standalone 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
3Under 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. S:
922(g) and S: 922(n).
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.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
4In 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).
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.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.6 For
confirmed matches, NICS personnel are to determine whether federal
counterterrorism officials (e.g., FBI field agents) are
518 U.S.C. S: 922(t)(1)(B)(ii).
6Pursuant 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.
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 During presale screening of prospective firearms purchasers,
NICS
searches terrorist watch list records generated by numerous federal
Terrorist Watch List agencies, including components of the Departments of
Justice, State, and Records Generated by Homeland Security. Applicable
records are consolidated by TSC, which
then makes them available for certain uses or purposes, such as inclusion
Numerous Federal in VGTOF-a database routinely searched during NICS
background
Agencies checks.
Numerous Federal Terrorist watch lists are maintained by numerous federal
agencies. These Agencies Maintain lists contain varying types of data,
from biographical data-such as a Terrorist Watch Lists 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.7 Table 1 shows the 12 watch
lists and the current agencies that maintain them.
7See GAO, Information Technology: Terrorist Watch Lists Should Be
Consolidated to Promote Better Integration and Sharing, GAO-03-322
(Washington, D.C.: Apr. 15, 2003).
Table 1: Watch Lists Maintained by Federal Agencies Department Agency
Watch list
State Bureau of Consular Affairs Consular Lookout and Support System
Bureau of Intelligence and TIPOFFa Research
Homeland Security U.S. Customs and Border Protection
Interagency Border Inspection System
Transportation Security Administration
No-Fly List Selectee List
U.S. Immigration and Customs Enforcement
National Automated Immigration Lookout System
Automated Biometric (fingerprint) Identification System
Justice U.S. Marshals Service Warrant Information Network
FBI Violent Gang and Terrorist Organization File
Integrated Automated Fingerprint Identification Systemb
U.S. National Central Bureau Interpol Terrorism Watch List
of Interpol
Defense Air Force (Office of Special Top 10 Fugitive List Investigations)
Source: GAO.
aIn 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.
bThe 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.
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 TSC was established in September 2003 to
consolidate the government's Consolidate Terrorist approach to terrorism
screening and provide for the appropriate and Watch Lists 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 terroristscreening
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.8 Among other things, this report was to
include
o 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;
o a determination of whether there remain any relevant databases not yet
part of the consolidated database; and
o 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
8Public Law 108-177, 117 Stat. 2599, 2623, 2624 (2003).
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
NICS Transactions Resulted in 44 Valid Matches with Terrorist Records in VGTOF
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
terroristscreening database have been added to VGTOF and searched during
NICS background checks.
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
Results of valid matches
Agency Transactions
handling Valid allowed to Transactions Transactions Unknown
transactions matches proceed denied unresolveda statusb
FBI 21192 0
State agencies 23c 16 4 1
Total 44d 35 6 1
Source: GAO analysis of data provided by the FBI's NICS Section and
interviews with state agency officials.
aTransactions unresolved refers to open transactions pending a final
proceed or denied determination.
bUnknown status consists of closed transactions for which the final
proceed or denied determination was not available.
cThe 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.).
dOf the 44 total valid matches, 30 were related to prospective gun
purchases and 14 involved applications for permits to possess, carry, or
acquire firearms.
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.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
9Additional information on federal and state requirements for retaining
records related to NICS transactions is presented in appendix II.
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.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
10The 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.
NICS Procedures Contain General Guidelines for Sharing Information with
Counterterrorism Officials
information. It was beyond the scope of our work to assess the reliability
or accuracy of the additional data.
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.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.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:
o 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);
o the specific date and time of the transaction;
o the name, street address, and phone number of the gun dealer; and
o the type of firearm (e.g., handgun or long gun), if relevant to
helping confirm identity.
11As 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.
12See NICS Privacy Act Notice, Routine Use C, 63 Fed. Reg. 65,223, 65,224
(1998).
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."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
13See 18 U.S.C. S: 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. S: 0.130).
Types of Information Shared by the FBI's NICS Section
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.
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.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
14We 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.
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
The FBI Has Not Routinely Monitored the States' Handling of Terrorism-Related
NICS Transactions; States Have Encountered Issues
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.
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 Conference15-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
15Each 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.
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.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.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:
16According to the Department of Justice's Bureau of Justice Statistics,
over 3,000 state and local agencies conduct background checks related to
firearm transfers.
17As 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.
Four States Had Delays in Implementing Procedures
Three States Questioned whether State Task Forces Were Notified
Two States Had Problems Receiving Responses from FBI Field Agents
o 4 states had delays in implementing procedures,
o 3 states questioned whether state task forces were notified,
o 2 states had problems receiving responses from FBI field agents,
o 1 state mishandled a transaction, and
o 3 states raised concerns about notifications.
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.
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.18 Justice and
FBI officials acknowledged that this issue warrants further consideration.
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
18As mentioned previously, we did not contact FBI field agents because the
transactions involved ongoing terrorism investigations.
One State Mishandled a Transaction
Three States Raised Concerns about Notifications
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:
o 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.
o 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 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.
Officials in 3 of the 11 states told us that the automatic
(computergenerated) 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
Recommendations for Executive Action
Agency Comments and Our Evaluation
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 terrorismrelated
NICS transaction.
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.
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
terrorismrelated 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
[email protected], or my Assistant Director, Danny R. Burton, at (214)
777-5600 or [email protected]. Other key contributors to this report were
Eric Erdman, Lindy Coe-Juell, David Alexander, Katherine Davis, and
Geoffrey Hamilton.
Laurie E. Ekstrand
Director, Homeland Security and Justice Issues
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:
o What terrorist watch lists are searched during NICS background checks?
o How many NICS transactions have resulted in valid matches with
terrorist watch list records?
o For valid matches, what are federal and state procedures for sharing
NICS-related information with federal counterterrorism officials?
o 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.
Appendix I: Objectives, Scope, and Methodology
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 To determine federal and state procedures for
sharing NICS-related NICS-Related Information information with federal
counterterrorism officials, we reviewed with Counterterrorism applicable
federal laws and regulations, including the Brady Handgun Officials
Violence Prevention Act1 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
1Brady Handgun Violence Prevention Act, Public Law 103-159, 107 Stat. 1536
(1993).
Appendix I: Objectives, Scope, and Methodology
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
terrorismrelated 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.2 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.
2Department of Justice, Bureau of Justice Statistics, Survey of State
Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701 (Washington,
D.C.: Aug. 2004).
Appendix I: Objectives, Scope, and Methodology
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.
Appendix II: Federal and State Requirements for Retaining Information from
Terrorism-Related NICS Transactions
Federal Records On July 21, 2004, the FBI's NICS Section implemented a
provision in federal law that requires any personal identifying
information in the NICS
Retention database related to allowed firearms transfers to be destroyed
within 24
Requirements: Next-hours after the FBI advises the gun dealer that the
transfer may proceed.1 The law does not provide an exception for retaining
information from
Day Destruction 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.2 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
1See section 617 of Public Law 108-199, 118 Stat. 3, 95 (2004).
2We 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).
Appendix II: Federal and State Requirements for Retaining Information from
Terrorism-Related NICS Transactions
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.3 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.
3See Department of Justice, Bureau of Justice Statistics, Survey of State
Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701 (Washington,
D.C.: Aug. 2004).
Appendix III: Comments from the Department of Justice
Appendix III: Comments from the Department of Justice
Appendix III: Comments from the Department of Justice
Appendix III: Comments from the Department of Justice
Appendix III: Comments from the Department of Justice
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