The FBI's Illegal Privacy-Breaching Activities

The FBI and Justice Department have routinely been engaged in illegal practices regarding lawful gun purchases for over a decade, and now some members of Congress want to reward this criminal behavior with expanded powers and increased secrecy.

As debate and childish hissy fits rage on in D.C. regarding supposed “loopholes” in our nation’s gun laws, particularly the so-called “Terrorist Loophole,” Americans need to understand that these limits in the laws are not “loopholes,” but specifically negotiated limits to government power. The National Instant Check System, or NICS, was offered up by the NRA as an alternative to the Brady waiting period. It was designed to be very limited and specific in scope to provide some reassurance that purchasers of guns from federally licensed dealers were not criminals or mentally ill “prohibited persons” under the Gun Control Act, while also protecting the privacy of lawful gun purchasers. The law was intentionally written to address only the nine specific factors that make a person ineligible to legally possess guns, and nothing else. This was not an oversight. It was recognized that firearm purchaser information could easily be abused, so strict limits and safeguards were included. But even with these clearly spelled out limits and safeguards, the FBI and the Justice Department have been routinely going well beyond their lawful authority to use firearm purchaser data in illegal ways.

The presumption of innocence is a cornerstone of our system of justice, and that presumption cannot be waived just because some bureaucrat or law enforcement official has a suspicion that a person might be up to no good. Nor is it legal for law enforcement to dig through personal data looking for signs of suspicious activity, yet that is exactly what has been going on at the FBI since 2004.

The law is very clear: NICS may only be used to determine whether a prospective firearm purchaser is prohibited from legal possession of firearms. If a criminal and mental health records check shows that the buyer is a “prohibited person” under the law, they have committed a crime by attempting the purchase and lying on the purchase forms. In that case, they can be arrested and prosecuted, and the forms can be retained as evidence of this crime. If, on the other hand, it is determined that the person is not prohibited from possessing firearms, NICS is required to issue a “Proceed” notification to the gun dealer to indicate that there is no legal impediment to completing the sale. The law requires that all data regarding these “approved” transfers be immediately destroyed to protect the privacy of the gun purchaser, and none of the data related to the transfer can be maintained for any reason.

These limitations were clearly explained by then-Attorney General John Ashcroft during congressional testimony in 2003 when Democrats questioned why “suspected terrorists” couldn’t be prevented from legally purchasing a firearm. He stated that the FBI and Justice Department did not have the legal authority to even question whether a gun purchaser was suspected of terrorist ties, much less deny constitutional protections based on suspicion. But a year later, the new attorney general, Alberto Gonzales, reversed that position and declared that every gun purchaser processed by NICS was being queried against the Terror Screening Database – the so-called Terror Watchlist. It was later revealed that records of “approved” firearm transfers were being maintained for “audit” purposes, that the FBI was reviewing those approved transfers looking for terrorist connections and that they were sharing some of this information with other agencies, including foreign intelligence and law enforcement agencies.

All of this is patently illegal, and is the basis of a federal lawsuit filed in New York (Robinson v. Lynch) and being led by an organization called the S.C.O.P.E. Foundation.

While every American should oppose terrorism and support law enforcement efforts to identify and contain terrorist activity, those efforts must be constrained by the rule of law. The fact that the FBI and Justice Department have been blatantly violating federal law and abridging the privacy rights of gun owners in violation of the Fourth Amendment demonstrates the dangers of expanding the legal authority of these agencies.

Government “experts” are adamant that home-grown “right-wing” extremists are the greatest terrorist threat we face. They have given guidance to law enforcement to be suspicious of veterans, “constitutionalists,” opponents of abortion, supporters of Ron Paul and others. We’ve seen the willingness of this administration, as well as past administrations, to use their bureaucratic power to target political adversaries and groups they disagree with. We see the willingness of the FBI and Justice Department to ignore legal constraints on their authority, and we’ve seen decades of attempts to limit, restrict, constrain and interfere with the rights of gun owners.

With all of that, we cannot begin to consider giving this administration – or any future administration – greater authority to abuse the rights of U.S. citizens.

Can anyone doubt that any process for denying firearm rights based on suspicion would eventually be abused and subverted? Americans tend to think of terrorism as a matter of radical Muslims, but how long would it be until groups like The Firearms Coalition or the Virginia Citizens Defense League would be labeled as “anti-government extremists”? Does it really seem far-fetched that the FBI, under Hillary Clinton, might deny firearm purchases to people like supporters of Donald Trump? You might already be on their watchlist and not even know it. Does that make you feel safer?

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