GAO Finds Faults With FBI`s NICS Operation

Results of a recently released General Accounting Office (GAO) investigation into the FBI`s implementation and operation of the National Instant Check System (NICS)--the national database containing records of persons who are disqualified from receiving firearms--indicate that several significant failures of the Clinton-Gore Administration have prevented the system from performing as Congress intended.

GAO performed the study at the request of U.S. Sen. Craig Thomas (R-Wyo.). In a March 8, 2000, press release, Sen. Thomas said: "The report paints a sobering picture of a failure by federal agencies to enforce existing gun laws as Congress intended. The result is that the Second Amendment rights of law-abiding citizens are being infringed upon while too often criminals seep through without consequence."

In 1993 Congress passed the Brady Handgun Violence Prevention Act that called for the FBI to create the National Instant Check System. The system was to be designed to screen criminal history records instantly--without any waiting period--on all customers attempting to make firearms purchases from federally licensed firearms dealers. Since 1995, Congress has allocated more than 300 million of taxpayer dollars to upgrade those records in order that the "instant check" system live up to its name.

The GAO report (www.gao.gov/new.items/g100064.pdf) shows that the system failed to provide "instant" checks 28% of the time, adversely affecting the rights of nearly 1.2 million law-abiding citizens. Nearly one-quarter of the citizens who appealed had their denials reversed. Those wrongful denials, GAO reports, were caused by FBI examiner error in 42% of the cases.

Congress has exhaustively debated waiting periods and has made clear its will. When it established the permanent instant check provision in the Brady Act, it made no provision for a "delayed" response. The "delayed" response concept was invented only later in Department of Justice-created regulations--regulations that fail to acknowledge the statutory mandate that the Attorney General establish an "instant" check with information "to be supplied immediately."

During first 13 months of NICS operation, the FBI notified the Bureau of Alcohol, Tobacco and Firearms (BATF) that 3,353 prohibited persons had received guns. GAO`s audit shows, however, that BATF is investigating only 3% of those cases of illegal firearms possession. As of the end of last September, 31,292 NICS denials had been referred to BATF field offices, but BATF officials told GAO that almost half of those cases were closed without prosecution or even investigation.

In preparing their report, GAO investigators visited U.S. Attorneys Offices in four cities--Atlanta, Dallas, Denver and Seattle--during the Fall of 1999 to examine prosecutions of Brady Act-related cases. In Atlanta, they found the U.S. Attorney had received three cases and "declined them because of lack of jury appeal." In Denver, two cases had been received and declined. The U.S. Attorney in Seattle had received not one Brady case for prosecution." In Dallas, 14 Brady cases were received by the U.S. Attorney, who accepted 13 for prosecution. The Clinton-Gore Administration continues to hold up the Brady Act as an effective crime-fighting tool, but it can`t explain why the felons, drug dealers, stalkers and fugitives who committed multiple felonies in attempting to buy guns from federally licensed dealers simply are not being sent to prison.

"Although NICS has been operational for 15 months, it has yet to be authorized as secure in accordance with Justice`s own requirements, and attempts to do so have been delayed," GAO says. According to Justice Department officials, "the completion of security testing was overshadowed by more urgent issues directly impacting the system`s ability to function; therefore, security testing was delayed."

Security testing still hasn`t been conducted. GAO investigators note: "In light of the system vulnerabilities that were identified before the system went operational and the delays experienced to date in authorizing the system, the FBI continues to lack an adequate basis for knowing whether NICS assets (hardware, software, and data) are sufficiently secure and are not vulnerable to corruption and unauthorized access."

GAO`s investigators conclude that: "Further delays in authorizing NICS will expose the system and the data it processes about individuals to unnecessary risk. Therefore, it is extremely important that the FBI fulfill its commitment to authorize NICS by March 31, 2000."

This lack of security is doubly troubling since the Department of Justice has exempted the FBI`s NICS operation from certain provisions of the Privacy Act of 1974. The Privacy Act sets rules that federal agencies must follow regarding records containing personally identifiable information. When asked for "estimated costs of adhering to the Privacy Act," Bureau officials refused to provide an estimate, saying only that such costs--costs to ensure citizens` privacy--"would be considerable."

The FBI has specified a system availability--defined as the time that the system is operating satisfactorily--requirement of 98%, but during its first year of operation, NICS failed to meet that standard in eight out of 12 months.

Through September 1999, the FBI identified more than 360 unscheduled outages associated with NICS. During its first year of operation, more than 215 hours of downtime occurred. No estimate was provided on how many millions of dollars small firearms retailers may have suffered in lost sales due to NICS "crashes."