I'll take on your question WildAlaska, as I think what the ATF is doing here is completely illegal for a number of reasons.
ATF 2010 Budget - Hit CTRL-F and use "trace" as your search term.
ATF Firearm Trace Reports - State by state reports on firearms trace information.
ATF Trace Request Form
Those links should provide sufficient proof that the ATF does in fact do data mining on firearms, and traces them from manufacturer, to dealer, to original purchaser using trace data.
The Misuse of BATF Firearms Tracing Data - For those still confused on what an ATF Trace is, or how it works, here is an excellent and very well sourced article explaining what, how, and why it is. The topic addressed by that article is different than what I am addressing here, but it still explains what firearm trace data is, very well.
Now, all of the above seems perfectly above board, business as usual, and doesn't seem to be against any law. In order to trace a firearm using the above process, the ATF has to have a firearm (used in a crime) in hand in order to use its serial number to conduct the trace.
This isn't the problem though, nor is it why people are up in arms. People are hopping mad because of the fact that the ATF has started using a trace process similar to the above, but in a different way, and in violation of law in order to trace firearms, without actually having a physical firearm in hand to begin the trace. Instead of tracing guns that have been recovered from crimes, the ATF has launched an effort to witch hunt individuals that have bought guns that the ATF has deemed "gangster friendly" or "Mexico Desired." That is their focus through "Project Gunrunner" and it is something they did many years back in a program called "Operation Forward Trace" under the Clinton Administration. I believe they are going about this in a highly suspect, and I believe; completely illegal manner. First, let me point out 3 things that the ATF is doing that I believe are illegal.
1) Violating the FOPA by recording private buyer information from form 4473 from FFL holders.
2) Violating the Tiahrt Amendment by using the illegally obtained data to conduct baseless investigations into private citizens who legally purchased the guns they've decided to target in their witch hunt.
3) Are threatening FFL holders who refuse to assist them in breaking the law with legal action, and threatening to revoke their license.
Let's talk about the "Tiahrt Amendment" for a minute, so I can lay out why what the ATF is doing is illegal. President Obama singled out this piece of law in his campaign, and its still on the White House Website as a goal to get repealed. He wants it gone, as do other gun control proponents, specifically because it limits what the ATF and other agencies can do with firearm trace data. Specifically, the "Tiahrt Amendment" does the following:
1) Prohibits the ATF from using trace data or releasing it to federal, state, and local agencies, unless in connection with and for use in a bona fide criminal investigation or prosecution.
In other words, you cannot use the trace data unless it is part of a legitimate criminal investigation into a crime that you already know has occurred. It does not allow using the data for a witch hunt to try and create an investigation.
2) Requires the FBI to destroy any record of a NICS background check within 24 hours of the check being conducted, and prohibits retention of any of this information in any kind of a government database.
The US Government has been
sued by the NRA for failure to destroy this information in accordance with law before, but clearly it still remains a problem as the ATF has found a new way to get around it.
3) Prohibits the ATF from releasing "firearm trace data" on the basis that it serves no useful purpose. The Congressional Research Service has repeatedly said "firearm trace data may be biased" and "cannot be used to test for statistical significance between firearm traces in general and the wider population of firearms available to criminals or the wider American public."(Congressional Research Service, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports 3 (June 30, 2006).) These limitations exist because the "tracing system is an operational system designed to help law enforcement agencies identify the ownership path of individual firearms. It was not designed to collect statistics."(Congressional Research Service, Assault Weapons@: Military-Style Semiautomatic Firearms Facts and Issues (May 13, 1992).)
Regardless of that prohibition, the ATF is farming this data out to the GAO, elected reps, and the media to use as a statistical reference in pushing the garbage about US guns in Mexico. The same body that said the data was statistically useless (Congress) has been gleefully using it for statistics to drum up support for new gun regulations. Here's some glaring proof of that in an
ATF Testimony before Congress by numerous ATF Agents. These agents used the "firearm trace data" as statistical proof of the guns from the US to Mexico "problem." Nevermind, Congress has already told the ATF such as use is illegal and that the data is effectively useless for this purpose.
Now let's talk about how the ATF is violating FOPA. The ATF is in violation of the FOPA (Firearm Owner Protection Act) by conducting audits of gun dealers Form 4473 (Firearm Transfer Form) and collecting the names of the buyers off of those forms.
THE FIREARMS OWNERS' PROTECTION ACT:
A HISTORICAL AND LEGAL PERSPECTIVE - This is a incredibly comprehensive study of the FOPA and it demonstrates the following abuses by the ATF:
1) Gathering the names of buyers off of Form 4473.
The FOPA states the following in regard to inspection of licensee information:
Quote:
1. Inspection and Acquisition of Licensee Records
The Gun Control Act required licensees to maintain records of firearm acquisitions, dispositions, and inventories. Furthermore, it permitted warrantless inspection of these "at all reasonable times," and broadly authorized the Secretary to require submission of reports on the records' content. FOPA establishes significant restrictions on the two latter powers. In general, administrative inspections of licensee records now require a magistrate's warrant, based on a showing of reasonable cause to believe evidence of a violation may be found. Three exceptions, however, nearly swallow this rule. Neither warrant nor reasonable cause is needed for (1) a reasonable inquiry in the course of a criminal investigation of a person other than the licensee; (2) an annual inspection for ensuring compliance with recordkeeping requirements; or (3) tracing a firearm in the course of a bona fide criminal investigation. While (p.655)these sizably reduce application of the warrant and cause requirement, it remains effective for its primary purpose in any event: to prevent inspections undertaken without immediate law enforcement need, or abused for the purpose of harassment.
FOPA also institutes some measures designed to minimize the harassment potential of an otherwise authorized inspection or search. Only records material to a violation of law may be seized and even as to these, copies must be furnished the licensee within a reasonable time. The unusual appearance of the last protection vanishes upon reflection; because a licensee is legally bound to buy and sell only upon recordation, removal of his records is more than an inconvenience.
The power of the Secretary to acquire licensee records is likewise limited by FOPA. Requirements to (1) submit records upon going out of business, (2) submit a report upon sale of more than one handgun to the same person during the same week and (3) submit reports of sales when ordered to do so by the Secretary, are enacted into law. Conversely, the Secretary is forbidden to require submission of reports "except as expressly required by this section." Paralleling this prohibition is the proviso that no (p.656)future regulation may require that any records required by the Act "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."
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In other words, keep your hands off of the private data records from legal firearms transactions, unless you have a legal, protected, legitimate reason to obtain it in the course of an investigation into a known crime.
The ATF is violating this prohibition by searching through the records of border state FFL holders, and pulling the names and addresses of buyers of certain types of guns, in order to go investigate them and ask them why they bought the guns, what they did with them, and to physically inspect them. Granted, since they don't have a warrant, they are only asking, but they got to this point by illegally obtaining privately protected information.
They should never legally have had access to this information in the first place, PERIOD! Because most people are intimidated by questioning from a Federal Agent, and because they typically don't know their own rights, they are volunteering information to the ATF that the ATF has no legal justification for knowing, much less even asking about at all. It is a witch hunt clearly intended to find evidence of possible crimes.
Evidence of such investigations occurring:
100 Agents sent to Texas - These agents will be solely devoted to "Project Gunrunner" and developing leads to try and find people who may be selling guns to Mexican gun smugglers.
Federal agents hunt for guns, one house at a time - This article has a few references that indicate the ATF is getting their information through dealer records, and not because they have any crime guns in hand. It specifically states that because "the government can’t compile databases on gun owners under federal law, Agents instead review firearms dealers’ records in person."
HOUSTONIAN SENTENCED TO PRISON FOR LYING TO BUY GUNS - In this link, the ATF itself admits it began an investigation into Hernandez after a routine regulatory inspection of a local firearms dealer’s records showed the cash purchases of a large number of military-style firearms. Now granted, this guy was a scumbag, and he was breaking the law, but the ATF broke the law in order to find that information out. They used privately protected information to begin an investigation into someone, solely on the basis of information they obtained by violating the Firearm Owner Protection Act. And they didn't discover in the inspection of the forms that these purchases were cash, they would have needed the FFL to disclose that as it isn't something that is recorded on the firearm transfer form. Thus they were collecting private transaction data as well, without cause or a warrant. That's also illegal and is privately protected financial information. The ATF would have caught up with this guy legally, as some of the guns he bought were eventually recovered in Mexico. Upon that legitimate criminal use being discovered, the legitimate use of trace data would have led them to Hernandez.
ATF: Phoenix Gun Dealer Supplied Mexican Drug Cartels - In this article, the ATF again used information obtained from Form 4473, in violation of FOPA, to begin an investigation as a result of "pattern buying that looked suspicious." According to federal and local officials, the investigation began after an ATF review of X Caliber's records showed "an obvious pattern of firearms purchases consistent with firearms trafficking." Again, the ATF busted a scumbag, but they did so using illegally obtained information.
In an effort to ramp up arrests, anecdotal evidence is springing up around the Internet from people who are saying the ATF is showing up at their door to ask them about weapons they purchased legally. These people consistently say they have never sold weapons to anyone, that the weapons are still in their possession, and that the ATF is demanding to see the physical firearm for inspection. Granted, these are anecdotal, but they have been happening consistent with the news stories above, and the description of events in each case is virtually identical in nature. The NRA has actually received enough member complaints of these activities that they have set up a number to call to report the actions, and they are looking into the complaints.
Some links to people currently alleging these events:
Air Force Soldier contacted by ATF about guns bought in Texas. Note, the only way the ATF could know about these guns is by obtaining info on the buyer from the Form 4473, a violation of FOPA & the Tiahrt Amendment.
Contacted by BATFE today!! *Update* - This one is a guy who knew his rights and told the ATF no, he wanted to talk to his lawyer. Upon advice from the lawyer, he told the ATF they'd need a warrant. He alleges the ATF got nasty upon that revelation. He also states he hasn't sold so the only way the ATF could get his info, again, is by violating FOPA and Tiahrt Amendment by stealing it off of a Form 4473.
I'm in SE Texas ( the center of the gravity of Project Gunner- see atf.gov) and had a check last week. - This guy is a dealer and he alleges that the ATF reviewed his records, specifically looking for buyers with unusual numbers purchased of certain models. He states that the only guy the agent was interested in was one that met the "gangster preferred" gun model criteria, and happened to be his cousin. This information was obtained in violation of FOPA & the Tiahrt Amendment. The next post, a dealer from Ft Worth alleges he had an agent in specifically racially profiling for hispanics.
ATF Agents had copies of the Form 4473 - This guy states 2 ATF agents showed up asking about guns he'd bought, and they actually had copies of the Form 4473 he filled out. That is a major no-no and a HUGE violation of multiple sections of the FOPA. To me, it is additional evidence that the ATF is illegally reverse tracing firearms to try and drum up leads to create criminal investigations.
NRA - This article is an alert to NRA members that a substantial number of their members have been approached by ATF Agents regarding legally owned weapons. It also gives info on how to report these events to the NRA, and how to seek legal counsel to protect your privacy. It also states "some of the agents have used heavy-handed tactics. One reportedly demanded that a gun owner return home early from a business trip, while another threatened to "report" an NRA member as "refusing to cooperate."
This is probably insufficient evidence for most of the skeptics here, but for most people, this is understood as business as usual for one of, if not the most corrupt agencies in the United States. This is an agency that has consistently and routinely been known to violate the law and to outright fabricate "evidence" to harrass and intimidate gun owners.
I believe the events I'm relaying are on the front end of this new push, but as the agents settle into a routine, I have a feeling these stories are going to start exploding in frequency.
What the ATF is doing is illegal, and if you care enough about it, you need to raise hell to your congresscritter!
-SS
