                    Checking Names of Prohibited Persons Against Records
                     in the NICS Audit Log Concerning Allowed Transfers
             The Federal Bureau of Investigation may check whether names of individuals known to be prohibited
               from purchasing a firearm under 18 U.S.C. § 922(g)(5) appear in records concerning allowed
               transfers in the audit log of the National Instant Criminal Background Check System in the course of
               auditing the performance of the NICS, and may share the results of such searches with the Bureau of
               Alcohol, Tobacco, and Firearms.

                                                                                                   October 1, 2001

                                          MEMORANDUM OPINION FOR THE
                                       DEPUTY ASSISTANT ATTORNEY GENERAL
                                             OFFICE OF LEGAL POLICY

                 This memorandum records and explains oral advice our Office gave you recent-
             ly. You asked whether it is permissible for the Federal Bureau of Investigation
             (“FBI”) to check whether the names of individuals known to be prohibited from
             purchasing a firearm under 18 U.S.C. § 922(g)(5) appear in records concerning
             allowed transfers in the audit log of the National Instant Criminal Background
             Check System (“NICS”) and, if so, whether the FBI may share the results of its
             searches with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”). For the
             reasons set forth more fully below, we answered both parts of your question in the
             affirmative.
                 Section 922 of title 18 sets out the categories of persons prohibited from pur-
             chasing a firearm. Section 922(g)(5) provides that among those prohibited from
             doing so is anyone

                      who, being an alien—

                      (A) is illegally or unlawfully in the United States; or

                      (B) except as provided in subsection (y)(2), has been admitted to the
                      United States under a nonimmigrant visa (as that term is defined in
                      section 101(a)(26) of the Immigration and Nationality Act).

             18 U.S.C. § 922(g)(5). 1

                  1
                    Subsection (y)(2) carves out certain narrow exceptions to the prohibition in section 922(g)(5)(B).
             It provides:
                      Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who
                      has been lawfully admitted to the United States under a nonimmigrant visa, if that
                      alien is—
                      (A) admitted to the United States for lawful hunting or sporting purposes or is in pos-
                      session of a hunting license or permit lawfully issued in the United States;




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             Section 102(b) of the Brady Act provides:

                  If receipt of a firearm would not violate section 922(g) or (n) [of title
                  18] or State law, the [NICS] shall—

                  (A) assign a unique identification number to the transfer,

                  (B) provide the licensee with the number; and

                  (C) destroy all records of the system with respect to the call (other
                  than the identifying number and the date the number was assigned)
                  and all records of the system relating to the person or the transfer.

         18 U.S.C. § 922(t)(2) (emphasis added). The regulations governing the NICS
         provide:

                     The NICS Audit Log will be used to analyze system performance,
                  assist users in resolving operational problems, support the appeals
                  process, or support audits of the use of the system. Searches may be
                  conducted on the Audit Log by time frame, i.e., by day or month, or
                  by a particular state or agency. Information in the NICS Audit Log
                  pertaining to allowed transfers may be accessed directly only by the
                  FBI for the purpose of conducting audits of the use and performance
                  of the NICS. Permissible uses include extracting and providing
                  information from the NICS Audit Log to ATF in connection with
                  ATF’s inspections of FFL [Federal Firearms Licensee] records, pro-
                  vided that ATF destroys the information about allowed transfers
                  within the retention period for such information set forth in para-
                  graph (b)(1) of this section and maintains a written record certifying
                  the destruction. Such information, however, may be retained as long
                  as needed to pursue cases of identified misuse of the system.




                  (B) an official representative of a foreign government who is—
                      (i) accredited to the United States Government or the Government’s mission to an
                      international organization having its headquarters in the United States; or
                      (ii) en route to or from another country to which that alien is accredited;
                  (C) an official of a foreign government or distinguished foreign visitor who has been
                  so designated by the Department of State; or
                  (D) a foreign law enforcement officer of a friendly foreign government entering the
                  United States on official law enforcement business.
         18 U.S.C. § 922(y)(2).




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                     Checking Names of Prohibited Persons Against Records in the NICS Audit Log


             28 C.F.R. § 25.9(b)(2) (2001) (emphasis added); see 66 Fed. Reg. 6470 (Jan. 22,
             2001). The accompanying Privacy Act notice establishes a number of “routine
             uses” that permit the FBI to share information from the NICS audit log in ways
             that are compatible with the requirements of the NICS regulations. Routine use
             “C” provides:

                      If, during the course of any activity or operation of the system au-
                      thorized by the regulations governing the system (28 CFR, part 25,
                      subpart A), any record is found by the system which indicates, either
                      on its face or in conjunction with other information, a violation or
                      potential violation of law (whether criminal or civil) and/or regula-
                      tion, the pertinent record may be disclosed to the appropriate agen-
                      cy/organization/task force (whether Federal, State, local, joint, or
                      tribal) and/or to the appropriate foreign or international agen-
                      cy/organization charged with the responsibility of investigating,
                      prosecuting, and/or enforcing such law or regulation, e.g., disclosure
                      of information from the system to the ATF, United States Depart-
                      ment of Treasury, regarding violations or potential violations of 18
                      U.S.C. 922(a)(6). (This routine use does not apply to the NICS
                      Index.)

             63 Fed. Reg. 65,223, 65,226-27 (Nov. 25, 1998).
                Thus, the NICS regulations allow the FBI to examine records in the audit log
             pertaining to allowed transfers to “conduct[] audits of the use and performance of
             the NICS.” 2 The question here appears to turn on whether checking the audit log to
             see whether names of particular persons known to be prohibited from buying a gun
             under 18 U.S.C. § 922 appear constitutes “conducting [an] audit[] of the use and
             performance of the NICS” within the meaning of 28 C.F.R. § 25.9(b)(2). We
             believe it is reasonable to interpret the regulations in this way.
                This interpretation fits with the common meaning of the term “audit.” One
             leading dictionary defines an “audit” as “[a] formal or official examination and
             verification of accounts, vouchers, and other records.” Webster’s New Internation-
             al Dictionary of the English Language 180 (2d ed. 1958). Checking names of
             known prohibited persons against the audit log (as well as running them through
             the system) provides one check on the accuracy of the responses being given by

                 2
                   The regulations also allow the FBI to “extract[] and provid[e] information from the NICS Audit
             Log to ATF in connection with ATF’s inspections of FFL records.” 28 C.F.R. § 25.9(b)(2). We
             understand the rationale for the permission to share information with ATF to be that ATF inspections
             of FFLs are designed, among other things, to uncover instances in which FFLs have misused the NICS,
             and thus that those inspections constitute an indirect carrying out of the FBI’s responsibility to conduct
             audits of the use and performance of the NICS. Because the circumstances you have asked us about do
             not involve ATF inspections of FFLs, that portion of the regulation does not appear to be directly
             relevant to question before us.




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         the system and thus constitutes an “examination and verification” of the system’s
         records and the accuracy with which they are being handled. We gather that the
         FBI has been using this method (among others) to audit the NICS since it began,
         though with prohibited persons drawn from several of the classes defined in
         section 922, not just with persons prohibited under section 922(g)(5). This
         consistent administrative interpretation, embodied in practice, also supports the
         reasonableness of the interpretation of the governing regulations approved here.
             We recognize, of course, that mere administrative practice (in the absence of
         legislative ratification) cannot by itself establish the reasonableness of an adminis-
         trative interpretation of a regulation. Nonetheless, we consider that practice of
         particular significance in addressing one possible objection to the interpretation
         approved here. We gather that although the checking of names the FBI has in mind
         will serve the purpose of auditing the NICS, the more immediate purpose is
         assisting the investigation of the September 11, 2001 terrorist attacks. Assisting
         criminal investigations generally is not one of the purposes for which the NICS
         regulations authorize the FBI to use audit log records. Nonetheless, we see nothing
         in the NICS regulations that prohibits the FBI from deriving additional benefits
         from checking audit log records as long as one of the genuine purposes for which
         the checking is carried out is the permitted purpose of auditing the use of the
         system. That the NICS has been using this method of auditing the system all along
         suggests to us that this method is more than simply a cover for using audit log
         records for a purpose other than those authorized by the NICS regulations.
             Because checking the names of prohibited persons constitutes “support[ing]
         audits of the use of the system” within the meaning of 28 C.F.R. § 25.9(b)(2), it
         also constitutes an “activity or operation of the system authorized by the regula-
         tions governing the system” within the meaning of the Privacy Act notice. Thus, if
         the FBI finds a record showing an allowed transfer to a prohibited person, that
         record indicates a potential violation of the law, and the FBI may share it with the
         appropriate law enforcement agency. ATF would be the appropriate law enforce-
         ment agency to attempt to retrieve a gun the prohibited person may have acquired.
             In approving the reasonableness of the interpretation of the NICS regulations
         you have advanced, we made several cautionary points. First, the checking of
         names must genuinely be used to audit the use of the NICS. Second, only the
         names of individuals known to be prohibited may be used. It is not enough to
         suspect or have some reason to believe that an individual is prohibited. Unless the
         government knows that an individual is prohibited, running the individual’s name
         through the NICS and checking the audit log cannot serve as a reliable method of
         auditing the system. Third, the FBI may not use names of individuals who are
         known to have violated the law unless those violations make the individuals
         prohibited from purchasing a firearm. Again, the NICS regulations limit the uses
         which may be made of audit log records. They may not be used simply for general




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             law enforcement. Only when a known violation creates a bar to buying a firearm
             can the individual’s name serve as an effective tool for auditing the NICS.

                                                            SHELDON BRADSHAW
                                                         Deputy Assistant Attorney General
                                                             Office of Legal Counsel




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