Background

The permanent provisions of the Brady Handgun Violence Prevention Act  took effect on November 30, 1998. Under the Brady Act, before a federally  licensed firearms dealer can transfer a firearm to an unlicensed individual,  the dealer must request a background check through NICS to determine  whether the prospective firearm transfer would violate federal or state  law. The Brady Act’s implementing regulations also provide for  conducting NICS checks on individuals seeking to obtain permits to  possess, acquire, or carry firearms. According to the Department of  Justice, under current law, inclusion on a terrorist watch list is not a stand- alone factor that would prohibit a person from receiving or possessing a  firearm. Thus, if no other federal or state prohibitors exist, a known or  suspected terrorist can legally purchase firearms.
Approximately 8.5 million background checks are run through NICS each  year, of which about one-half are processed by the FBI’s NICS Section and  one-half by designated state and local criminal justice agencies. Under  federal and state requirements, prospective firearms purchasers must  provide information that is needed to initiate a NICS background check.  For example, in order to receive a firearm from a licensed dealer, federal  regulations require an individual to complete a Firearms Transaction  Record (ATF Form 4473). Among other things, this form requires  prospective purchasers to provide the following descriptive data: name,  residence address, place of birth, height and weight, sex, date of birth,  race, state of residence, country of citizenship, and alien registration  number (for non-U.S. citizens). A Social Security number is optional.  Firearms dealers use the Form 4473 to record information about the  firearms transaction, including the type of firearm(s) to be transferred  (e.g., handgun or long gun); the response provided by the FBI’s NICS  Section or state agency (e.g., proceed or denied); and information  specifically identifying each firearm to be transferred (e.g., manufacturer,  model, and serial number), which shows whether the transaction involves  the purchase of multiple firearms. Individuals applying for state permits to  possess, acquire, or carry firearms also are required to provide personal  descriptive data on a state permit application. State laws vary in regard to  the types of information required from permit applicants.
The purpose of the NICS background check is to search for the existence  of a prohibitor that would disqualify a potential buyer from purchasing a  firearm pursuant to federal or state law. During the NICS check,  descriptive data provided by an individual—such as name and date of  birth—are used to search databases containing criminal history and other  records supplied by federal, state, and local agencies. One of the  databases searched by NICS is the FBI’s National Crime Information  Center database, which contains criminal justice information (e.g., names  of persons who have outstanding warrants) and also includes records on  persons identified as known or suspected members of terrorist  organizations. The terrorist-related records are maintained in the National  Crime Information Center’s Violent Gang and Terrorist Organization File  (VGTOF), which was designed to provide law enforcement personnel with  the means to exchange information on members of violent gangs and  terrorist organizations.
Although NICS checks have included searches of terrorist records in  VGTOF, NICS personnel at the FBI and state agencies historically did not  receive notice when there were hits on these records. The FBI blocked the  VGTOF responses (i.e., the responses were not provided to NICS  personnel) under the reasoning that VGTOF records contain no  information that would legally prohibit the transfer of a firearm under  federal or state law. However, in November 2002, the FBI began an audit  of NICS transactions where information indicated the individual was an  alien, including transactions involving VGTOF records. In one instance  involving a VGTOF record, the audit revealed that an FBI field agent had  knowledge of prohibiting information not yet entered into the automated  databases checked by NICS. As a result, in November 2003, the  Department of Justice—citing Brady Act authorities—directed the FBI to  revise NICS procedures to better ensure that subjects of VGTOF records  who have disqualifying factors do not receive firearms in violation of  applicable federal or state law. Specifically, the Brady Act authority cited  allows the FBI up to 3 business days to check for information  demonstrating that a prospective buyer is prohibited by law from  possessing or receiving a firearm.
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. For confirmed matches, NICS personnel are to determine  whether federal counterterrorism officials (e.g., FBI field agents) are  aware of any information that would prohibit the individual by law from  receiving or possessing a firearm. For example, FBI field agents could  have information not yet posted to databases checked by NICS showing  the person is an alien illegally or unlawfully in the United States. If  counterterrorism officials do not provide any prohibiting information, and  there are no other records in the databases checked by NICS showing the  individual to be prohibited, NICS personnel are to advise the initiator of  the background check that the transaction may proceed. If the NICS  background check is not completed within 3 business days, the gun dealer  may transfer the firearm (unless state law provides otherwise).
Designated state and local criminal justice agencies are responsible for  conducting background checks in accordance with NICS policies and  procedures. However, the Attorney General and the FBI ultimately are  responsible for managing the overall NICS program. Thus, the FBI’s  Criminal Justice Information Services Division conducts audits of the  states’ compliance with federally established NICS regulations and  guidelines. Also, the FBI is a lead U.S. law enforcement agency responsible  for investigating terrorism-related matters.

	NICS Searches Terrorist Watch List Records Generated by Numerous Federal Agencies

During presale screening of prospective firearms purchasers, NICS  searches terrorist watch list records generated by numerous federal  agencies, including components of the Departments of Justice, State, and  Homeland Security. Applicable records are consolidated by TSC, which  then makes them available for certain uses or purposes, such as inclusion  in VGTOF—a database routinely searched during NICS background  checks.

		Numerous Federal Agencies Maintain Terrorist Watch Lists

Terrorist watch lists are maintained by numerous federal agencies. These  lists contain varying types of data, from biographical data—such as a  person’s name and date of birth—to biometric data—such as fingerprints.  Our April 2003 report identified 12 terrorist or criminal watch lists that  were maintained by nine federal agencies. Table 1 shows the 12 watch  lists and the current agencies that maintain them.
At the time we issued our April 2003 report, federal agencies did not have  a consistent and uniform approach to sharing terrorist watch list  information.

		TSC Was Established to Consolidate Terrorist Watch Lists

TSC was established in September 2003 to consolidate the government’s  approach to terrorism screening and provide for the appropriate and  lawful use of terrorism information. In addition to consolidating terrorist  watch list records, TSC serves as a single point of contact for law  enforcement authorities requesting assistance in the identification of  subjects with possible ties to terrorism. TSC has access to supporting  information behind terrorist records and can help resolve issues regarding  identification. TSC also coordinates with the FBI’s Counterterrorism  Division to help ensure appropriate follow-up actions are taken.
TSC receives the vast majority of its information about known or  suspected terrorists from the Terrorist Threat Integration Center, which  assembles and analyzes information from a wide range of sources. In  addition, the FBI provides TSC with information about purely domestic  terrorism (i.e., activities having no connection to international terrorism).  According to TSC officials, from December 1, 2003—the day TSC achieved  an initial operating capability—to March 12, 2004, TSC consolidated  information from 10 of the 12 watch lists shown in table 1 into a terrorist- screening database. The officials noted that the database has routinely  been updated to add new information. Further, TSC officials told us that  information from the remaining 2 watch lists—the U.S. Immigration and  Customs Enforcement’s Automated Biometric Identification System and  the FBI’s Integrated Automated Fingerprint Identification System—will be  added to the consolidated database at a future date not yet determined.
A provision in the Intelligence Authorization Act for Fiscal Year 2004  required the President to submit a report to Congress by September 16,  2004, on the operations of TSC. Among other things, this report was to  include    a determination of whether the data from all the watch lists  enumerated in our April 2003 report have been incorporated into the  consolidated terrorist-screening database;    a determination of whether there remain any relevant databases not yet  part of the consolidated database; and    a schedule setting out the dates by which identified databases—not yet  part of the consolidated database—would be integrated.
As of November 2004, the report on TSC operations had not been  submitted to Congress.
TSC, through the participation of the Departments of Homeland Security,  Justice, and State and intelligence community representatives, determines  what information in the terrorist-screening database will be made  available for which types of screening purposes.

		Eligible TSC Records Are Added to VGTOF and Searched by NICS

In November 2003, the Department of Justice directed the FBI’s NICS  Section to develop appropriate procedures for NICS searches of TSC  records when the center and its consolidated watch list database were  established and operational. In accordance with this directive, the FBI and  TSC have implemented procedures that allow all eligible records in the  center’s consolidated terrorist-screening database to be added to VGTOF  and searched during NICS background checks. According to FBI and TSC  officials, since December 2003, eligible records from the terrorist- screening database have been added to VGTOF and searched during NICS  background checks.

	NICS Transactions Resulted in 44 Valid Matches with Terrorist Records in VGTOF

For the period February 3 through June 30, 2004, FBI data and our  interviews with state agency officials indicated that 44 NICS transactions  resulted in valid matches with terrorist records in VGTOF. Of this total, 35  transactions were allowed to proceed because the background checks  found no prohibiting information, such as felony convictions or illegal  immigrant status, as shown in table 2.
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. Our  work indicated that the multiple transactions could have, for example,  been run for administrative purposes (e.g., rechecks).
The FBI’s revised procedures for handling NICS transactions with valid  matches to terrorist watch list records—i.e., to delay the transactions to  give NICS personnel the chance to further research for prohibitors—have  successfully resulted in the denial of firearms transactions involving  known or suspected terrorists who have disqualifying factors. Specifically,  two of the six denied transactions shown in table 2 were based on  prohibiting information provided by FBI field agents that had not yet been  entered in automated databases checked by NICS. According to agency  officials in the two states that handled the transactions, FBI field agents  provided information showing that one of the individuals was judged to be  mentally defective and the other individual was an alien illegally or  unlawfully in the United States. Based on this information, both firearm  transfers were denied.
The vast majority of NICS transactions that generated initial hits on  terrorist records in VGTOF did not result in valid matches. Specifically,  during the period in which the 44 valid matches were identified—February  3 through June 30, 2004—officials from the FBI’s NICS Section estimated  that approximately 650 NICS transactions generated initial hits on terrorist  records in VGTOF. The high rate of potential matches returned—i.e.,  VGTOF records returned as potential matches based upon the data  provided by the prospective purchaser—is due to the expanded search  parameters used to compare the subject of a background check with a  VGTOF record. An FBI NICS Section official told us that by comparing  data from the NICS transaction (e.g., name, date of birth, and Social  Security number) with data from the VGTOF record, it generally is easy to  determine if there is a potential or valid match. The official told us that  NICS personnel drop the false hits from further consideration and follow  up only on transactions considered to be potential or valid matches. A  false hit, for example, could occur when the subject of a NICS transaction  and the subject of a VGTOF record have the same or a similar name but a  different date of birth and Social Security number.
As table 2 shows, the 44 NICS transactions with valid matches to terrorist  records in VGTOF were processed by the FBI’s NICS Section and 11 states  during the period February 3 through June 30, 2004. In December 2004,  FBI officials told us that during the 4 months following June 2004—that is,  during July through October 2004—the FBI’s NICS Section handled an  additional 14 transactions with valid matches to terrorist records in  VGTOF. Of the 14 transactions with valid matches, FBI officials told us  that 12 were allowed to proceed because the background checks found no  prohibiting information, and 2 were denied based on prohibiting  information. It was beyond the scope of our work to assess the reliability  or accuracy of the additional data.

	NICS Procedures Contain General Guidelines for Sharing Information with Counterterrorism Officials

Federal and state procedures—developed and disseminated under the  Department of Justice’s direction—contain general guidelines that allow  FBI and state personnel to share information from NICS transactions with  federal counterterrorism officials, in the pursuit of potentially prohibiting  information about a prospective gun buyer. However, the procedures do  not address the specific types of information that can or should be  provided or the sources from which such information can be obtained.  Justice’s position is that the types of information that can be routinely  provided generally are limited to the information contained within the  NICS database. Justice noted, however, that NICS personnel can request  additional information from a gun dealer or from a law enforcement  agency processing a firearms permit application, if that information is  requested by a counterterrorism official in the legitimate pursuit of  establishing a match between the prospective gun buyer and a VGTOF  record. Most state personnel told us that—at the request of  counterterrorism officials—the state would contact the gun dealer or refer  to the state permit application to obtain and provide all available  information related to a NICS transaction. FBI counterterrorism officials  told us that receiving all available personal identifying information and  other details from terrorism-related NICS transactions could be useful in  conducting investigations.

		FBI NICS Section Procedures and Guidance for Sharing NICS-Related Information

As mentioned previously, for all potential or valid matches with terrorist  records in VGTOF, NICS personnel are to begin their research by  contacting TSC to verify the match. According to the procedures used by  the FBI’s NICS Section, during the screening process, TSC will ask NICS  staff to provide “all information available in the transaction,” including the  location of the firearms dealer, in the pursuit of identifying a valid match.  If a coordinated effort by TSC and FBI NICS Section staff determines that  the subject of the NICS transaction appears to match a terrorist record in  VGTOF—based on the name and other descriptors—TSC is to refer the  NICS Section staff to the FBI’s Counterterrorism Division for follow-up.  Further, the procedures note that there will be instances when NICS  Section staff are contacted directly by a case agent, who will ask the NICS  Section staff to share “additional information from the transaction or  provide necessary information to complete the transaction.”

			Justice’s Position on Sharing NICS-Related Information

The Department of Justice’s position is that information from the NICS  database is not to be used for general law enforcement purposes. 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.
According to Justice, the types of information that can be routinely shared  under NICS procedures generally are limited to the information collected  by or contained within the NICS database. Specifically, Justice noted  that—in verifying a match and determining whether prohibiting  information exists—the following information can be routinely shared  with TSC and counterterrorism officials:    certain biographical data from the ATF Form 4473 collected from a gun  dealer for purposes of running a NICS check (e.g., name, date of birth,  race, sex, and state of residence);  the specific date and time of the transaction;  the name, street address, and phone number of the gun dealer; and  the type of firearm (e.g., handgun or long gun), if relevant to helping  confirm identity.
Justice told us that additional information contained in the ATF Form  4473, such as residence address or the number and make and model of  guns being sold, is not required or necessary to run a NICS check. Justice  noted, however, that there are times when NICS personnel will contact a  gun dealer and request a residence address on a person who is determined  to be prohibited from purchasing firearms—such as when there is a hit on  a prohibiting arrest warrant record—so that the information can be  supplied to a law enforcement agency to enforce the warrant. Similarly,  Justice told us that NICS procedures do not prohibit NICS personnel from  requesting a residence address from a gun dealer—or from a law  enforcement agency issuing a firearms permit in the case of a permit  check—if that information is requested by a counterterrorism official in  the pursuit of establishing a match between the gun buyer and the VGTOF  record. Justice noted that gun dealers are not legally obligated under  either NICS or ATF regulations to provide this information to NICS  personnel but frequently do cooperate and provide the residence  information when specifically requested by NICS personnel.
Further, Justice told us that in cases in which a match is established and  the field does not have the residence address or wants the address or  other additional information on the Form 4473 regarding a “proceeded”  transaction, FBI personnel can then coordinate with ATF to request the  information from the gun dealer’s records without a warrant. Specifically,  Justice cited provisions in the Gun Control Act of 1968, as amended, that  give the Attorney General the authority to inspect or examine the records  of a gun dealer without a warrant “in the course of a reasonable inquiry  during the course of a criminal investigation of a person or persons other  than the  licensee.” Justice explained that unless the  person is prohibited or there is an indication of a violation or potential  violation of law, FBI NICS personnel do not perform this investigative  function for the field. FBI field personnel can, however, get the  investigative information from gun dealers through coordination with ATF.
We recognize that current procedures allow NICS personnel to share “all  information available in the transaction” with TSC or counterterrorism  officials, in the pursuit of identifying a true match and the discovery of  information that is prohibiting. However, given Justice’s interpretation, we  believe that clarifying the procedures would help ensure that the  maximum amount of allowable information from terrorism-related NICS  transactions is consistently shared with counterterrorism officials. For  example, under current procedures, it is not clear if the types of  information that can or should be routinely shared are limited to the  information contained within the NICS database or if additional  information can be requested from the gun dealer or from the law  enforcement agency processing a permit application.

			Types of Information Shared by the FBI’s NICS Section

The FBI’s NICS Section did not maintain data on the types of information  it shared with TSC or counterterrorism officials to (1) verify matches  between NICS transactions and VGTOF records or (2) pursue the  existence of firearm possession prohibitors. According to the NICS  Section, such data are not maintained because NICS procedures provide  for the sharing of all information available from the transaction, including  the location of the gun dealer, in the pursuit of identifying a true match.  The NICS Section told us that data required to initiate a NICS check—such  as name, date of birth, sex, race, state of residence, citizenship, and  purpose code (e.g., firearm check or permit check)—are captured in the  NICS database and shared on every NICS transaction. A NICS Section  official told us that the specific or approximate date and time of each  transaction also is consistently shared with TSC.
TSC did maintain data on the types of information shared by the NICS  Section. Specifically, in verifying matches, TSC data showed that NICS  Section staff shared basic identifying information about the prospective  purchasers (e.g., name, date of birth, and Social Security number).  However, TSC data showed that NICS Section staff did not consistently  share the specific location or phone number of the gun dealer. According  to the procedures used by the FBI’s NICS Section, in the pursuit of  identifying a valid match, TSC will ask NICS staff to provide the location  of the gun dealer. The NICS Section told us that this includes the specific  location and phone number of the gun dealer.
According to TSC officials, once the FBI’s NICS Section has shared  information on an identity match and TSC verifies the match, the  information provided by the NICS Section is forwarded to the FBI’s  Counterterrorism Division. The Counterterrorism Division is to then  contact the NICS Section to follow up on the match. If the NICS Section  does not receive a response from the Counterterrorism Division, the NICS  Section is to aggressively pursue contacting the division to resolve the  transaction. Counterterrorism Division officials told us the information  provided by the NICS Section is routinely shared with field agents familiar  with the terrorist records in VGTOF.
NICS Section officials also told us that for each transaction with a valid  match to a VGTOF record, NICS Section staff talked directly to a field  agent to pursue prohibiting information. The NICS Section did not  maintain data on what, if any, additional information from the NICS  transactions was shared during these discussions. However, NICS Section  officials told us that in no cases did NICS staff contact the gun dealer to  obtain—and provide to counterterrorism officials—additional information  about the firearm transaction (e.g., information such as the prospective  purchaser’s residence address) that was not submitted as part of the initial  NICS check or already contained within NICS. The NICS Section was  aware of one instance in which NICS staff was asked by a  counterterrorism official to obtain address information to assist in  determining whether a VGTOF hit was a valid match. In that case— involving a firearm permit check—the NICS staff was able to get residence  address information from the law enforcement agency processing the  permit application and provide it to the counterterrorism official.

		State Agency Procedures and Guidance for Sharing NICS-Related Information

According to the FBI-disseminated procedures used by state agencies, in  the process of contacting TSC, state staff are to share “all information  available in the transaction,” including the location of the firearms dealer,  in the pursuit of identifying a true match and determining the existence of  prohibiting information. If TSC and state staff make an identity match,  TSC is to refer the state staff to the FBI’s Counterterrorism Division for  follow-up. Unlike the procedures used by the FBI’s NICS Section, the state  agency procedures do not address whether there will be instances when  state staff are to be contacted directly by a case agent, or what additional  information from the NICS transaction could be shared during such  contacts.
Most state agency officials we contacted told us they interpreted the  procedures as allowing them to share all available information related to a  NICS transaction requested by counterterrorism officials, including any  information contained on the forms used to purchase firearms or apply for  firearms permits. Also, most state agency officials told us they were not  aware of any restrictions or specific FBI guidance on the types of  information that could or could not be shared with counterterrorism  officials. According to the FBI’s NICS Section, the procedures used by  state agencies note that in the process of contacting TSC, state staff will  share all information available in the transaction in the pursuit of  identifying a true match and the discovery of information that is  prohibiting. As mentioned previously, we believe that clarifying the  procedures would help ensure that the maximum amount of allowable  information from terrorism-related NICS transactions is consistently  shared with counterterrorism officials.
The state agencies we contacted did not maintain data on the types of  information they shared with TSC or counterterrorism officials to verify  matches between NICS transactions and VGTOF records or pursue  prohibiting information. However, in verifying matches, TSC data showed  that state agency staff shared basic identifying information about the  prospective purchasers (e.g., name, date of birth, and Social Security  number). TSC data also showed that state agency staff did not consistently  share the specific location or phone number of the gun dealer. TSC  officials told us they basically can identify the date and time of a firearm  transaction because TSC records the date and time NICS staff call TSC,  which occurs very shortly after the gun dealer initiates the NICS check.  TSC and FBI Counterterrorism Division officials told us they handle state  agency referrals the same way as they handle referrals from the FBI’s  NICS Section.
Most of the state agency officials we contacted told us that if requested by  counterterrorism officials (e.g., FBI field agents), state agency staff would  either call the gun dealer or refer to the state permit application to obtain  and provide all available information related to a NICS transaction. This  information could include the prospective purchaser’s residence address  and the type and number of firearms involved in the transaction. Officials  in three states told us that state staff had shared the prospective  purchaser’s residence address with FBI field agents. In one of the three  cases, the field agent was interested in the residence address because the  individual was in the country illegally and was wanted for deportation.
In its written comments on a draft of this report, Justice noted that in the  case of the individual who was in the country illegally, because the  individual was a prohibited person, there was no restriction on obtaining  and providing the additional information about the denied transaction to a  law enforcement agency after the identity was already established.  Justice  also noted that regarding the sharing of information from state firearm  permit applications, there is no Brady Act limitation on the state supplying  transaction information to field agents for investigative purposes after  identity is established, as the use and dissemination of state firearm permit  information is governed by state law.

		NICS-Related Information Could Be Useful to Counterterrorism Officials

According to officials from the FBI’s Counterterrorism Division, personal  identifying information and other details about NICS transactions with  valid matches to terrorist records in VGTOF could be useful to FBI field  agents in conducting terrorism investigations. Specifically, the officials  noted the potential usefulness of locator information, such as the  prospective purchaser’s residence address, the date and time of the  transaction, and the specific location of the gun dealer at which the  transaction took place. The officials also told us that information on the  type of firearm(s) involved in the transaction and whether the transaction  involved the purchase of multiple firearms could also be useful to field  agents. According to one official, in general, agents would want as much  information as possible that could assist investigations. The FBI’s NICS  Section noted, however, that NICS procedures provide for sharing  information only when it is relevant to determining a true match between  a NICS transaction and a terrorist record in VGTOF.

	The FBI Has Not Routinely Monitored the States’ Handling of Terrorism-Related NICS Transactions; States Have Encountered Issues

Although the Attorney General and the FBI ultimately are responsible for  managing NICS, the FBI has not routinely monitored the states’ handling  of terrorism-related background checks. For example, the FBI does not  know the number and results of terrorism-related NICS transactions  handled by state agencies since June 30, 2004. Also, the FBI has not  routinely assessed the extent to which applicable state agencies have  implemented and followed procedures for handling NICS transactions  involving terrorist records in VGTOF. The FBI’s plans call for conducting  audits of the states’ compliance with the procedures every 3 years. Our  work revealed several issues state agencies have encountered in handling  NICS transactions involving terrorist records in VGTOF, including delays  in implementing procedures and a mishandled transaction.

		FBI Has Not Routinely Monitored the States’ Handling of NICS Transactions Involving VGTOF Records

The FBI has not routinely monitored the states’ handling of NICS  transactions involving terrorist records in VGTOF. For example, in  response to our request for information—covering February 3 through  June 30, 2004—the FBI’s NICS Section reviewed all state NICS  transactions that hit on VGTOF records during this period to identify  potential matches. We used this information to follow up with state  agencies and create table 2 in this report. However, since June 30, 2004,  the FBI’s NICS Section has not tracked or otherwise attempted to collect  information on the number of NICS transactions handled by state agencies  that have resulted in valid matches with terrorist records in VGTOF or  whether such transactions were approved or denied. NICS Section  officials told us that while the NICS Section does not have aggregate data,  FBI officials at TSC and the FBI’s Counterterrorism Division are aware of  valid-match transactions that state agencies handle. Given the significance  of valid matches, we believe it would be useful for the FBI’s NICS Section  to have aggregate data on the number and results of terrorism-related  NICS transactions handled by state agencies, particularly if the data  indicate that known or suspected terrorists may be receiving firearms. In  response to our inquiries, in October 2004, Justice and FBI NICS Section  officials told us they plan to study the need for information on state NICS  transactions with valid matches to terrorist records in VGTOF and the  means by which such information could be obtained.
Also, while the FBI has taken steps to notify state agencies about the  revised procedures for handling NICS transactions involving VGTOF  records—including periodic teleconferences and presentations at a May  2004 NICS User Conference—the FBI has not routinely assessed the  extent to which states have implemented and followed the procedures.  According to the FBI, the NICS Section performed an assessment of all  NICS transactions involving VGTOF records from February 3, 2004 (the  day the block on VGTOF records was removed) to March 22, 2004, in order  to assess the extent to which the states implemented and followed  procedures. For example, a NICS Section official told us that NICS  personnel called state agencies to make sure they contacted TSC to verify  matches and also contacted counterterrorism officials to pursue  prohibiting information. However, according to the NICS Section, the  assessment concluded on March 23, 2004, because NICS Section personnel  could not fully assess the reliability or accuracy of the information  provided by the states. Officials from two states told us that additional FBI  oversight could help ensure that applicable procedures are followed. One  of the state officials told us that such FBI oversight could be particularly  important since NICS transactions with valid matches to VGTOF records  are rare and there could be turnover of state personnel who process the  transactions.
As part of routine state audits the FBI conducts every 3 years, the FBI  plans to assess the states’ handling of terrorism-related NICS transactions.  Specifically, every 3 years, the FBI plans to audit whether designated state  and local criminal justice agencies are utilizing the written procedures for  processing NICS transactions involving VGTOF records. Moreover, for  states with a decentralized structure for processing NICS transactions— i.e., states with multiple local law enforcement entities that conduct  background checks (rather than one central agency)—the goal of the audit  is to determine if local law enforcement agencies conducting the checks  have in fact received the written procedures, and if so, whether the  procedures are being followed. 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. Further, a 3-year audit cycle may not be  sufficient help ensure the timely identification and resolution of issues  state agencies may encounter in handling terrorism-related NICS  transactions.

		States’ Issues in Handling Terrorism-Related NICS Transactions

State agencies have encountered several issues in handling NICS  transactions involving terrorist records in VGTOF. Specifically, of the 11  states we contacted, 9 states experienced one or more of the following  issues:    4 states had delays in implementing procedures,    3 states questioned whether state task forces were notified,    2 states had problems receiving responses from FBI field agents,    1 state mishandled a transaction, and    3 states raised concerns about notifications.

			Four States Had Delays in Implementing Procedures

Four of the 11 states we contacted had delays of 3 months or more in  implementing NICS procedures for processing transactions that hit on  VGTOF records—procedures that were to have been effective on February  3, 2004. Each of the 4 states processed one NICS transaction with a valid  match to terrorist records in VGTOF before becoming aware of and  implementing the new procedures. In processing the transactions, our  work indicated that at least 3 of the 4 states did not contact TSC, as  required by the procedures. The fourth state did not have information on  how the transaction was processed. Although our work indicated that the  FBI provided the new procedures to state agencies in January 2004, 1 of  the 4 states did not implement the procedures until after a state official  attended the May 2004 NICS User Conference. Officials in the other 3  states were not aware of the new procedures at the time we made our  initial contacts with them in June 2004 (2 states) and August 2004 (1 state).  Subsequent discussions with officials in 2 of the 3 states indicated the new  procedures have been implemented. In November 2004, an official in the  third state told us the procedures had not yet been implemented.

			Three States Questioned whether State Task Forces Were Notified

Officials in 3 of the 11 states told us they believed their respective state’s  homeland security or terrorism task forces should be notified when a  suspected terrorist attempts to purchase a firearm in their state, but the  officials said they did not know if TSC or the FBI provided such notices.  Officials from the FBI’s Counterterrorism Division did not know the extent  to which FBI field agents notified state and local task forces about  terrorism-related NICS transactions, but the officials told us that such  notifications likely are made on a need-to-know basis. Justice and FBI  officials acknowledged that this issue warrants further consideration.

			Two States Had Problems Receiving Responses from FBI Field Agents

Officials in 2 of the 11 states told us that in the pursuit of prohibiting  information, their respective states had problems receiving responses  from FBI field agents. These problems led to delays in each state’s ability  to resolve one NICS transaction with a valid match to a terrorist record in  VGTOF. According to state officials, under the respective state’s laws, the  two transactions were not allowed to proceed during the delays, even  though prohibiting information had not been identified. The two  transactions were resolved as follows:  In response to our inquiries, in November 2004, an analyst in one of the  states contacted an FBI field agent, who told the analyst that the  subject of the background check had been removed from VGTOF. A  state official told us the NICS transaction was in a delay status for  nearly 10 months.
Regarding the other state, the NICS transaction was in an unresolved  status for a period of time specified by state law, after which it was  automatically denied. According to state officials, a state analyst made  initial contact with an FBI field agent, who said he would call the  analyst back. The state officials told us that the analyst made several  follow-up calls to the agent without receiving a response.
As of November 2004, the FBI had not responded to our request for  information regarding the issues or circumstances as to why the FBI field  agents had not contacted the two states’ analysts.

			One State Mishandled a Transaction

One of the 11 states mishandled a NICS transaction with a valid match to a  terrorist record in VGTOF. Specifically, although the state received  notification of the VGTOF hit, the information was not relayed to state  staff responsible for processing NICS transactions. Consequently, the  transaction was approved without contacting TSC or FBI counterterrorism  officials. We informed the state that the FBI’s NICS Section had identified  the transaction as matching a VGTOF record. Subsequently, state  personnel contacted TSC and an FBI field agent, who determined that  prohibiting information did not exist. State officials told us that to help  prevent future oversights, the state has revised its internal procedures for  handling NICS transactions that hit on VGTOF records.

			Three States Raised Concerns about Notifications

Officials in 3 of the 11 states told us that the automatic (computer- generated) notification of NICS transactions that hit on a certain  (sensitive) category of terrorist records in VGTOF is not adequately visible  to system users and could be missed by state personnel processing NICS  transactions. The FBI has taken steps to address this issue and plans to  implement computer system enhancements in June 2005.

	Conclusions

Under revised procedures effective February 3, 2004, all NICS transactions  with potential or valid matches to terrorist watch list records in VGTOF  are automatically delayed to give NICS personnel at the FBI and applicable  state agencies an opportunity to further research the transactions for  prohibiting information. The primary purpose of the revised procedures is  to better ensure that known or suspected members of terrorist  organizations who have disqualifying factors do not receive firearms in  violation of federal or state law. An additional benefit has been to support  the nation’s war against terrorism. Thus, it is important that the maximum  amount of allowable information from these background checks be  consistently shared with counterterrorism officials. However, our work  revealed that federal and state procedures for handling terrorism-related  NICS transactions do not clearly address the specific types of information  that can or should be routinely provided to counterterrorism officials or  the sources from which such information can be obtained. For example,  under current procedures, it is not clear if certain types of potentially  useful information, such as the residence address of the prospective  purchaser, can or should be routinely shared. Also, under current  procedures, it is not clear if FBI and state personnel can routinely call a  gun dealer or a law enforcement agency processing a permit application to  obtain and provide counterterrorism officials with information not  submitted as part of the initial NICS check. Further, some types of  information—such as the specific location of the dealer from which the  prospective purchaser attempted to obtain the firearm—have not  consistently been shared with counterterrorism officials. Consistently  sharing the maximum amount of allowable information could provide  counterterrorism officials with valuable new information about individuals  on terrorist watch lists.
The FBI has plans that call for conducting audits every 3 years of the  states’ handling of terrorism-related NICS transactions. However, given  that these NICS background checks involve known or suspected terrorists  who could pose homeland security risks, more frequent FBI oversight or  centralized management is needed. The Attorney General and the FBI  ultimately are responsible for managing NICS, and the FBI is a lead law  enforcement agency responsible for combating terrorism. However, the  FBI does not have aggregate data on the number of NICS transactions  involving known or suspected members of terrorist organizations that  have been approved or denied by state agencies to date. Also, the FBI has  not assessed the extent to which the states have implemented and  followed applicable procedures for handling terrorism-related NICS  transactions. Moreover, under a 3-year audit cycle, relevant information  from the background checks may have been destroyed pursuant to federal  or state laws and therefore may not be available for review. Further, more  frequent FBI oversight or centralized management would help address  other types of issues we identified—such as several states’ delays in  implementing procedures and one state’s mishandling of a terrorism- related NICS transaction.

	Recommendations for Executive Action

Proper management of NICS transactions with valid matches to terrorist  watch list records is important. Thus, we recommend that the Attorney  General (1) clarify procedures to ensure that the maximum amount of  allowable information from these background checks is consistently  shared with counterterrorism officials and (2) either implement more  frequent monitoring by the FBI of applicable state agencies or have the  FBI centrally manage all terrorism-related NICS background checks.

	Agency Comments and Our Evaluation

We requested comments on a draft of this report from the Department of  Justice.  Also, we provided a draft of sections of this report for comment  to applicable agencies in the 11 states we contacted.
On January 7, 2005, Justice provided us written comments, which were  signed by the Acting Assistant Director of the FBI’s Criminal Justice  Information Services Division.  According to Justice and FBI officials, the  draft report was provided for review to Justice’s Office of Legal Policy, the  FBI’s NICS Section (within the Criminal Justice Information Services  Division), the FBI’s Counterterrorism Division, and the Terrorist Screening  Center.
Justice agreed with our two recommendations.  Specifically, regarding our  recommendation to clarify NICS procedures for sharing information from  NICS transactions with counterterrorism officials, Justice stated that (1)  the written procedures used by the FBI’s NICS Section will be revised and  (2) additional written guidance should be provided to applicable state  agencies.  Regarding our recommendation for more frequent FBI oversight  or centralized management of terrorism-related NICS background checks,  Justice has requested that the FBI report to the department by the end of  January 2005 on the feasibility of having the FBI’s NICS Section process all  NICS transactions involving VGTOF records.
In its written comments, Justice also provided (1) a detailed discussion of  the Brady Act’s provisions relating to the retention and use of NICS  information and (2) clarifications on the states’ handling of terrorism- related NICS transactions.  These comments have been incorporated in  this report where appropriate.  The full text of Justice’s written comments  is reprinted in appendix III.
Officials from 7 of the 11 states we contacted told us they did not have any  comments. Officials from the remaining 4 states did not respond to our  request for comments.
As arranged with your offices, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 30 days after its  issue date. At that time, we will send copies of this report to interested  congressional committees and subcommittees. We will also make copies  available to others upon request. In addition, the report will be available at  no charge on GAO’s Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to discuss  the matter further, please contact me at (202) 512-8777 or  ekstrandl@gao.gov, or my Assistant Director, Danny R. Burton, at (214)  777-5600 or burtond@gao.gov. Other key contributors to this report were  Eric Erdman, Lindy Coe-Juell, David Alexander, Katherine Davis, and  Geoffrey Hamilton.

Appendix I: Objectives, Scope, and Methodology

	Objectives

Our overall objective was to review how the Federal Bureau of  Investigation’s (FBI) National Instant Criminal Background Check System  (NICS) handles checks of prospective firearms purchasers that hit on and  are confirmed to match terrorist watch list records. The FBI and  designated state and local criminal justice agencies use NICS to determine  whether or not individuals seeking to purchase firearms or apply for  firearms permits are prohibited by law from receiving or possessing  firearms. Specifically, we addressed the following questions:    What terrorist watch lists are searched during NICS background  checks?
How many NICS transactions have resulted in valid matches with  terrorist watch list records?
For valid matches, what are federal and state procedures for sharing  NICS-related information with federal counterterrorism officials?    To what extent does the FBI monitor the states’ handling of NICS  transactions with valid matches to terrorist watch list records? What  issues, if any, have state agencies encountered in handling such  transactions?
Also, we obtained summary information on federal and state requirements  for retaining information related to NICS transactions with valid matches  to terrorist watch list records (see app. II).

	Scope and Methodology

In performing our work, we reviewed applicable federal laws and  regulations, FBI policies and procedures, and relevant statistics. We  interviewed federal officials at and reviewed documentation obtained  from the Department of Justice’s Office of Legal Policy; the FBI’s  Counterterrorism Division; the FBI’s NICS Section and Criminal Justice  Information Services Division at Clarksburg, West Virginia; and the  Terrorist Screening Center (TSC), which is the multiagency center  responsible for consolidating federal terrorist watch lists. Generally, our  analyses focused on background checks processed by the FBI’s NICS  Section and 11 states during the period February 3, 2004 (when the FBI’s  procedures for handling terrorism-related NICS transactions became  effective), through June 30, 2004. The 11 states we contacted (California,  Colorado, Florida, Hawaii, Illinois, Massachusetts, North Carolina,  Pennsylvania, Tennessee, Texas, and Virginia) were those that FBI data  indicated—and the states subsequently confirmed—had processed NICS  checks (during the period February 3 through June 30, 2004) that resulted  in one or more valid matches with terrorist watch list records.

		Terrorist Watch List Records Searched during NICS Background Checks

To determine what terrorist watch list records are searched during NICS  background checks, we interviewed officials from the FBI’s NICS Section  and the Criminal Justice Information Services Division—the FBI division  responsible for maintaining the Violent Gang and Terrorist Organization  File (VGTOF)—and obtained relevant documentation. Also, we  interviewed TSC officials and obtained documentation and other relevant  information on TSC’s efforts to consolidate federal terrorist watch list  records into a single database. Eligible records from TSC’s consolidated  database are shared with VGTOF and searched during NICS background  checks.

		Number of NICS Transactions with Valid Matches to Terrorist Watch List Records

To determine the number of NICS transactions that resulted in valid  matches with terrorist records in VGTOF—during the period February 3  through June 30, 2004—we interviewed officials from the FBI’s NICS  Section and reviewed FBI data. The FBI did not have comprehensive or  conclusive information on transactions handled by state agencies, but FBI  data indicated that 12 states (California, Colorado, Florida, Georgia,  Hawaii, Illinois, Massachusetts, North Carolina, Pennsylvania, Tennessee,  Texas, and Virginia) likely had processed one or more NICS transactions  with a valid match to terrorist records in VGTOF during this period. We  interviewed agency officials in the 12 states to corroborate the FBI data  and to obtain additional information about the related background checks  (e.g., whether the transactions were allowed to proceed or were denied).  We also worked with officials from the FBI’s NICS Section and state  agencies to resolve any inconsistencies. For example, our work revealed  that 1 of the 12 states (Georgia) had not processed a terrorism-related  NICS transaction during the period we reviewed. As such, our subsequent  interviews and analysis focused on background checks processed by the  FBI’s NICS Section and the remaining 11 states.

		Procedures for Sharing NICS-Related Information with Counterterrorism Officials

To determine federal and state procedures for sharing NICS-related  information with federal counterterrorism officials, we reviewed  applicable federal laws and regulations, including the Brady Handgun  Violence Prevention Act and NICS regulations. We also reviewed FBI and  state procedures for handling NICS transactions involving terrorist  records in VGTOF—procedures that were developed and disseminated  under the Department of Justice’s direction. We interviewed officials from  the Department of Justice’s Office of Legal Policy, the FBI’s NICS Section,  and the 11 states to determine the scope and types of NICS-related  information that could be shared with federal counterterrorism officials  under applicable procedures. Further, for NICS transactions with valid  matches to terrorist records in VGTOF—during the period February 3  through June 30, 2004—we interviewed officials from the FBI’s NICS  Section and Counterterrorism Division, TSC, and the 11 states to  determine the types of NICS-related information that were shared with  counterterrorism officials.

		FBI Monitoring of the States’ Handling of NICS Transactions and Issues Encountered by State Agencies

To determine the extent to which the FBI has monitored the states’  handling of NICS transactions involving VGTOF records, we interviewed  officials from the Department of Justice’s Office of Legal Policy, the FBI’s  NICS Section, and state agencies. We reviewed documents the FBI used to  notify state agencies about the procedures for handling terrorism-related  NICS transactions. We also reviewed data and other information the FBI  maintained on transactions handled by the states. Further, we obtained  information on the FBI’s plans to periodically audit whether designated  state and local criminal justice agencies are utilizing the written  procedures for processing NICS transactions involving VGTOF records. To  identify issues state agencies have encountered in handling terrorism- related NICS transactions, we interviewed officials from the 11 states. For  identified issues, we interviewed officials from the Department of Justice  and the FBI’s NICS Section and Counterterrorism Division to discuss the  states’ issues and obtain related information.

		Federal and State Requirements for Retaining Information from Terrorism-Related NICS Transactions

To determine federal and state requirements for retaining information  from terrorism-related NICS transactions, we interviewed officials from  the FBI’s NICS Section and state agencies and reviewed applicable federal  laws and regulations. We also reviewed a Department of Justice report  that addressed the length of time the FBI and applicable state agencies  retain information related to firearm background checks. Further, we  interviewed officials from the FBI and reviewed relevant FBI documents  to determine how the federal 24-hour destruction requirement for NICS  records of allowed firearms transfers would affect the FBI’s NICS Section  and state policies and procedures.

	Data Reliability

We performed our work from April through December 2004 in accordance  with generally accepted government auditing standards. We were unable  to fully assess the reliability or accuracy of the data regarding valid  matches with terrorist records in VGTOF because the data related to  ongoing terrorism investigations. However, we discussed the sources of  data with FBI, TSC, and state agency officials and worked with them to  resolve any inconsistencies. We determined that the data were sufficiently  reliable for the purposes of this review. The results of our interviews with  officials in the 11 states may not be representative of the views and  opinions of others nationwide.

Appendix II: Federal and State Requirements for Retaining Information from Terrorism- Related NICS Transactions

	Federal Records Retention Requirements: Next- Day Destruction

On July 21, 2004, the FBI’s NICS Section implemented a provision in  federal law that requires any personal identifying information in the NICS  database related to allowed firearms transfers to be destroyed within 24  hours after the FBI advises the gun dealer that the transfer may proceed.  The law does not provide an exception for retaining information from  NICS transactions with valid matches to terrorist records in VGTOF. Thus,  information in the NICS database from such transactions also is subject to  the federal 24-hour destruction provision. Before the 24-hour destruction  provision took effect, federal regulations permitted the retention of all  information related to allowed firearms transfers for up to 90 days. The  federal 24-hour retention statute does not specifically address whether  identifying information in the NICS database related to permit checks— which do not involve gun dealers—is subject to 24-hour destruction.  According to the FBI’s NICS Section, the 24-hour destruction requirement  does not apply to permit checks. Rather, information related to permit  checks is maintained in the NICS database for up to 90 days after the  background check is initiated.
In implementing the 24-hour destruction provision, the FBI’s NICS Section  revised its policies and procedures to allow for the retention of  nonidentifying information related to each proceeded background check  for up to 90 days (e.g., information about the gun dealer). According to the  FBI, by retaining the nonidentifying information, the FBI’s NICS Section  can initiate firearm retrieval actions when new information reveals that an  individual who was approved to purchase a firearm should not have been.  The nonidentifying information is retained for all NICS transactions that  are allowed to proceed, including transactions involving subjects of  terrorist watch lists.
Also, in implementing the 24-hour destruction provision, the FBI’s NICS  Section created a new internal classification system for transactions that  are “open.” Specifically, if NICS staff cannot make a final determination  (i.e., proceed or denied) on a transaction within 3 business days, the NICS  Section is to automatically change the status to open. The NICS Section  maintains personal identifying information and other details related to  open transactions until either (1) a final determination on the transaction  is reached or (2) the expiration of the retention period for open  transactions, which is a period of no more than 90 days. Regarding  terrorism-related NICS transactions, the open designation would be used,  for example, if NICS Section staff did not receive responses from FBI field  agents within 3 business days.
The 24-hour destruction provision did not affect federal policies for  retaining NICS records related to denied firearms transactions. Under  provisions in NICS regulations, personal identifying information and other  details related to denied firearms transactions are retained indefinitely.  Also, according to Justice and FBI officials, there are no limitations on the  retention of NICS information by TSC or counterterrorism officials, who  received the information to verify identities and determine whether  firearm-possession prohibitors exist.

	State Records Retention Requirements Vary

Among the states, requirements vary for retaining records of allowed  transfers of firearms. 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.

Appendix III: Comments from the Department of Justice

Summary:
Why GAO Did This Study

Membership in a terrorist organization does not prohibit a person from owning a gun under current law. Thus, during presale screening of prospective firearms purchasers, the National Instant Criminal Background Check System historically did not utilize terrorist watch list records. However, for homeland security and other purposes, the Federal Bureau of Investigation (FBI) and applicable state agencies began receiving notices (effective February 3, 2004) when such screening involved watch lists records. GAO determined (1) how many checks have resulted in valid matches with terrorist watch list records, (2) procedures for providing federal counterterrorism officials relevant information from valid-match background checks, and (3) the extent to which the FBI monitors or audits the states' handling of such checks.

What GAO Found

During the period GAO reviewed--February 3 through June 30, 2004--a total of 44 firearm-related background checks handled by the FBI and applicable state agencies resulted in valid matches with terrorist watch list records. Of this total, 35 transactions were allowed to proceed because the background checks found no prohibiting information, such as felony convictions, illegal immigrant status, or other disqualifying factors. 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.