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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Checking Names of Prohibited Persons Against Records in the NICS Audit Log
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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Checking Names of Prohibited Persons Against Records in the NICS Audit Log Concerning Allowed Transfers
Combined Opinion