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REPORT: ATF Can Use NICS to Monitor People It Suspects Could Eventually Commit a Crime

By: Peter Suciu

The Philip K. Dick short story, The Minority Report, which later served as the basis for the Steven Spielberg-directed film starring Tom Cruise, told the story of mutants who could foresee all crime before it occurs.

While the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) doesn't have any special individuals or a great machine that is able to foretell the future, it has been reported that that the government agency could be using background checks in a similar method.

According to a report from Ammoland.com last month (full article here), ATF can legally obtain information from the National Instant Criminal Background Check System (NICS) for civil and criminal enforcement. NICS, which is run by the FBI, was created in 1998 to provide a system for firearms retailers to determine if an individual can legally purchase or transfer a firearm.

NICS wasn't designed to be a database of firearms owners, however, and the FBI typically destroys personal information from any still open request – as in no denied/approved reports – within 90 days. Ammoland.com reported that most of the data is deleted on day 88.

If the sale is approved, the information is typically destroyed within 24 hours of the NICS request being returned, but if the sale is denied, the FBI can maintain the record in perpetuity. The ATF is also notified of every denied sale, and the records are kept in the ATF NICS Referral (ANR) database, so the agency can follow up at a later point.

It is also worth noting that crime prevention researcher John Lott reported for the New York Daily News:

In 2010, the last year the Bureau of Justice Statistics released a full annual report on the operation NICS system (the Obama administration stopped releasing annual reports after that), there were 72,659 denials, but only 44 federal prosecutions and just 13 convictions.
Of those 13 convictions, only six were for possession of a firearm by a felon. There were an equally small number of state prosecutions. The reason for the big gap between the 72,659 and the 44 federal prosecutions is that these aren't real cases. It is one thing to stop a criminal from buying a gun. It is something entirely different to stop someone because they have a name similar to criminal.
Over time these "false positives" have added up to several million people. The reason for these mistakes is simple: using roughly phonetically similar names and birthdates just doesn't allow for much accuracy.

What is worth noting now is that ATF could use the system to monitor individuals who are run through the system in case they commit a crime at a later date. This includes if someone is buying multiple firearms, which might indicate they could be committing straw purchases or similar crimes.

The person being monitored would not be notified of the surveillance.

What is ATF Monitoring?

ATF is also maintaining a NICS Audit Log Request, which lists all legal violations they suspect an individual is committing, and also provide "detailed information about why" someone would be under investigation. As Ammoland.com reports, though, the form is not an affidavit, but ATF employees must write it as if it were an affidavit.

The form is then sent to an ATF NICS Representative, who can review the request and decide to approve or deny the monitoring of NICS information. It could then be forwarded to an NICS Section Liaison Specialist, whose only job is to forward the request to the NICS Legal Analysis Team (LAT) for review.

As reported, the requestor can be a "Special Agent, Industry Operations Investigator (IOI), Intelligence Research Specialist, Intelligence Analyst, etc." Now this monitoring is only supposed to be used for civil or criminal enforcement, and IOIs are strictly prohibited from doing either enforcement activity. If an IOI thus suspects a criminal or civil violation, he must fill out a "Suspicious Activities Report," and notify the ATF's Gun Crime Intelligence Center or state/local law enforcement.

But it was noted that IOI does not investigate crimes, so the question is why is NICS doing the monitoring, as it falls outside of their area of enforcement? ATF is also prohibited from using the annual inspection as a cover for a criminal or civil investigation.

ATF Using Big Data?

What else could this data could be used for?

While one expert in the world of computer science who spoke to GPM said it wouldn't be exactly like a pre-crime operation, he suggested that certain data could draw stronger scrutiny from officials:

"A lot of the patterns are understandable in the abstract, and if anything the big data techniques are about how to pull out signals that were otherwise tough to have found inside the noise," the source explained. "I could easily envision that someone skilled in the ways of data could want to run at least the experiment. Gun info alone does not make for 'predictive analytics' in such things, but if one blends in text mining from social media, social networking contacts/features, possibly other features derived from criminal justice system – records even if not disabling history – then yeah, it would not surprise me that some low-hanging fruit could be picked.

"Civil libertarians might get bent about how someone comes under suspicious without yet having done a crime," the expert added. “In practice, these things happen daily, but then police indulge in an exercise called ‘parallel construction,’ which is to find other innocuous ways to have ostensibly exposed a crime, but without revealing the surveillance which brought them to the person in reality."

Peter Suciu is a freelance writer based in Michigan. Contact him at petersuciu@gmail.com.

 
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