When you go to a gun store to buy a new gun, you can expect a few things to happen. First, some paperwork. Second, you can expect to have to pass a background check before leaving with your gun. And third, you can expect that the gun store will keep a record of your purchase for as long as the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) requires. After all, that is how the government traces crime guns back to their original purchasers.
But what you might not expect is an FBI agent receiving a ping that you – yes, you – just successfully bought a gun. And you might be surprised to learn that this agent has been receiving notifications of your purchases for months – or years.
Of course, such a surveillance scheme would be flatly unconstitutional – not to mention a violation of several safeguards already codified in federal law. Yet slowly but surely, the government has been building a record of the private collections of thousands of American citizens, even though federal law expressly prohibits that “any system of registration of firearms, firearms owners, or firearms transactions or dispositions” be established.
Of course, even though they are being monitored, these victims remain law-abiding, meaning the government has no probable cause to justify seeking a warrant authorizing such a search in the first place.
Now, Gun Owners of America has discovered that the FBI has been using its Second Amendment surveillance program not only to enforce federal law, but also to help California target owners of newly banned “assault weapons.”
FBI’s NICS Monitoring Scheme
When news first broke of the FBI and ATF’s joint “NICS Monitoring” surveillance scheme, the public was shocked. As journalist John Crump reported in April of 2021, “monitoring of NICS isn’t for prohibited people,” but rather those who are eligible to purchase firearms but who law enforcement agents nevertheless suspect might commit a crime.
GOA learned that targets of NICS Monitoring – which exploits records in the National Instant Criminal Background Check System (“NICS”) before they are deleted within 24 hours – never receive notice that their firearm transactions are being monitored. Thus, there is no way to challenge the FBI’s surveillance.
In fact, in order to enroll a target for NICS Monitoring, an agent only needs to complete an internal request form. At no point does an agent seeking NICS Monitoring have to convince a judge (or anyone other than himself, really) that this surveillance comports with the Fourth Amendment. Entirely usurpingly, then, the FBI’s abuse of NICS Monitoring is rampant.
Hellbound and Down 