According to a recent Fox News report, Bank of America secretly turned over hundreds of its customers’ personal data to the federal government following the unrest at the Capitol on January 6. The targeted customers included those who made purchases at “weapons-related merchants” in early January. The report suggested that the nation’s second largest bank turned the private information over voluntarily rather than in response to a subpoena. Bank of America’s willing collaboration with federal law enforcement at the expense of its customers highlights the broad threat posed by those that would commandeer ostensibly private banks and payment processors to undermine Second Amendment rights.
According to Fox, at the behest of federal investigators, Bank of America swept its transaction records for individuals who met the following criteria:
1. Customers confirmed as transacting, either through bank account debit card or credit card purchases in Washington, D.C. between 1/5 and 1/6.
2. Purchases made for Hotel/Airbnb RSVPs in DC, VA, and MD after 1/6.
3. Any purchase of weapons or at a weapons-related merchant between 1/7 and their upcoming suspected stay in D.C. area around Inauguration Day.
4. Airline related purchases since 1/6.
This resulted in the identification of 211 Bank of America customers, whose data was then turned over to the federal government without their knowledge. Fox News noted that at least one of the identified individuals was subsequently interviewed by federal authorities and cleared of any wrongdoing.
This gross abuse of trust reveals how financial service companies collaborating with federal law enforcement can erode gun owners’ rights and statutory protections preventing the federal government’s retention of gun owner data.
Federal law explicitly prohibits the federal government from compiling certain data on gun owners. The Firearms Owners’ Protection Act of 1986 amended the Gun Control Act to protect gun owners from the threat of registration. The legislation added language stating,
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
The Brady Act of 1993, which provided for the establishment of the National Instant Criminal Background Check System, made clear the NICS cannot be used to create a firearms registry. The language states that the NICS must “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.” Further, the Brady Act prohibited any “department, agency, officer, or employee of the United States” from requiring any record generated by the NICS to be retained or to use the system to establish a firearms registry.
The federal government deputizing willing banks to compile and hand over information on law-abiding gun owners that is comparable to data they would be prohibited from compiling themselves is a direct attack on the privacy that these statutory protections were intended to preserve.
This isn’t the first time the federal government has used the acquiescent banking sector to push outcomes gun control advocates could not achieve through legitimate means.
In 2013 the Justice Department and the Federal Deposit Insurance Corporation initiated Operation Choke Point, which sought to deter banks from conducting business with companies that engaged in commerce that the Obama administration viewed as undesirable. To do this, the Obama administration categorized certain types of businesses as being “associated with high-risk activity” in a banking guidance document used by the FDIC. Some of the types of businesses targeted by the operation were engaged in illegal or fraudulent activity, like “On-line Gambling” or “Ponzi Schemes.” However, the operation also targeted legal businesses that engaged in lawful commerce such as “Tobacco Sales,” “Coin Dealers,” “Ammunition Sales,” and “Firearms Sales.”
The Trump administration put an end to the federal government’s organized financial harassment campaign in 2017. However, some lawmakers, including U.S. Rep. Carolyn Maloney (D-N.Y.), have continued to bully banks in an attempt to force them to cut ties with the firearms industry.
This continued assault prompted NRA to support a Trump era rule from the Office of the Comptroller of the Currency (OCC) aimed at ending politically-motivated discrimination in the provision of financial services. Exposing their zeal for political discrimination in banking, on January 28 the Biden administration put a hold on this vital measure.
Moreover, gun control advocates have tried to directly commandeer banks and payment processors in an attempt to attack gun owners.
On December 24, 2019 the gun confiscation supporters at the New York Times ran a thinly-veiled advocacy piece by Andrew Ross Sorkin in the news section, titled, “Devastating Arsenals, Bought With Plastic and Nary a Red Flag.” According to Sorkin, banks and other financial services companies are “uniquely positioned” to monitor gun owner purchasing habits. Under Sorkin’s preferred scenario, credit card companies would require retailers to tag firearms-related purchases with additional data that could be used by the credit card companies to compile information on gun owners. The surveillance data could then be used to flag suspicious purchases for law enforcement.
On April 30, 2018, the Wall Street Journal reported that “[b]anks and credit-card companies are discussing ways to identify purchases of guns in their payment systems.” Elaborating, the paper explained,
The financial companies have explored creating a new credit-card code for firearms dealers, similar to how they code restaurants or department stores, according to people familiar with the matter. Another idea would require merchants to share information about specific firearm products consumers are buying, some of the people said.
Such data could allow banks to restrict purchases at certain businesses or monitor them.
More recently, Moms Demand Action Founder Shannon Watts encouraged the payment processing industry to restrict what gun owners can buy. According to Watts, credit card companies should refuse to process payments for certain firearms parts - preventing law-abiding gun owners from purchasing lawful products.
Given Bank of America and federal law enforcement’s recent conduct, it would be reasonable for gun owners to assume that the federal government would have unfettered access to any data collected under gun controllers’ proposed banking and payment processing schemes.
NRA-ILA has been at the forefront of confronting governmental and private efforts to attack gun owners and the gun industry through banking and payment processing. NRA-ILA will continue to work with our friends in congress, including members of the Senate Banking Committee, to ensure that gun owners and the gun industry have access to financial services free from privacy abuses and political retribution.