Your 4473

[Tom Servo]

You are correct Counselor, but I think a cogent argument by an experienced and proficient attorney can be leveled for the FFL acting as an agent of the governmental entity

That's quite a stretch. Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government. Their conduct is regulated, but nothing is authorized.

If such an argument has been successfully made, I have not seen it.

[Frank Ettin]

Originally Posted by Tom Servo

...Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government....

There's an easy way to see that this "agent of the government" notion is a non-starter. Just look at the "Rights, Duties, and Liabilities Between Principal and Agent" (footnotes omitted):

An agency is the creation of a contract entered into by mutual consent between a principal and an agent. By agency, a principal grants authority to an agent to act on behalf of and under the control of the principal. The relation between a principal and an agent is fiduciary and an agent’s actions bind the principal. The law of agency thus governs the legal relationship in which an agent deals with a third party for his/her principal.

An agent owes certain duties towards his/her principal and a principal owes certain duties towards his/her agent. The scope of an agent’s duty to the principal is determined by:

• the terms of the agreement between the parties; and
  
  
• extent of the authority conferred and the obligations of loyalty to the interests of the principal.

An agent’s primary duties are:

• act on behalf of and be subject to the control of the principal;
  
  
• act within the scope of authority or power delegated by the principal;
  
  
• discharge his/her duties with appropriate care and diligence; and
  
  
• avoid conflict between his/her personal interests

Other duties of an agent include:

• not to acquire any material benefit from a third party in connection with transactions conducted or through the use of his/her positions as an agent;
  
  
• to act with the care, competence, and diligence normally exercised by agents in similar circumstances;
  
  
• to take action only within the scope of the his/her actual authority;
  
  
• to comply with all lawful instructions received from the principal and persons designated by the principal concerning agent’s actions on behalf of the principal;
  
  
• to act reasonably and to refrain from conduct that is likely to damage the principal’s enterprise;

An agent is liable to a principal when he/she acts without actual authority, but with apparent authority. An agent is liable to indemnify a principal for loss or damage resulting from his/her act.

A principal owes certain contractual duties to his/her agent. Correlative with the duties of an agent to serve a principal loyally and obediently, a principal’s primary duties to his/her agent include:

• To compensate the agent as agreed; and
  
  
• To indemnify and protect the agent against claims, liabilities, and expenses incurred in discharging the duties assigned by the principal.

Because of the fiduciary relationship, a principal owes his/her agent a duty of good faith and fair dealing. However, a principal can be relieved of contractual obligations by an agent’s prior breach of contract.

A principal has a duty to act in accordance with the express and implied terms of any contract between a principal and an agent.

When an agent acts within the scope of actual authority, the principal is liable to indemnify the agent for payments made during the course of the relationship irrespective of whether the expenditure was expressly authorized or merely necessary in promoting the principal’s business.

Anyone think that accurately describes the relationship between an FFL (or any business requiring a federal license to operate) and the federal government?

[tyme]

Frank, you mentioned SSNs are optional. That may be true, but what practical difference does it make? Some 4473s have them, so does the FFL have to vet their stack of 4473s and hold back the ones with SSNs before deciding to voluntarily hand them over to someone else, and that makes the voluntary disclosure acceptable?

Even the rest of the form including birthdate and name/address can aid identity theft without the SSN. Knowledge that a person bought a gun, or even has a gun, also should be private; that's one of the reasons we all get so upset when some liberal newspaper decides to out CHL/CCW holders based on states' foolish decisions to make CHL lists public records.

Is the FFL at risk of being sued for breach of privacy or some other tort if they release 4473s without a court order?

[4thPoint]

For the "It's a Privacy Act matter" minded folks.... Exactly what information contained on the 4473 is protected under the Privacy Act?

May I suggest reading a 4473 and seeing? (hint, hint, it is by no means every entry on the form.)

The good news, is that every FFL dealer I've spoken to (and there have been quite a few over the years, is quite adamant about keeping your information private, even at the risk of losing potential special deals and discounts (as we see in this case, btw.)

[Frank Ettin]

Originally Posted by tyme

Frank, you mentioned SSNs are optional. That may be true, but what practical difference does it make? ...

Even the rest of the form including birthdate and name/address can aid identity theft without the SSN. Knowledge that a person bought a gun, or even has a gun, also should be private; ...

Is the FFL at risk of being sued for breach of privacy or some other tort if they release 4473s without a court order?

The underlying issue is whether or to what extent the FFL has a legally recognized duty to protect the information in the 4473 against unauthorized disclosure.

A legal duty could arise from a statute expressly prohibiting certain disclosures (perhaps subject to certain conditions or with certain exceptions). So far we've seen statutes from only two States providing limited or unclear protection of the 4473. Absent an applicable statute, the recourse for someone aggrieved by an FFL's allegedly wrongful disclosure of information on a 4473 seems to be pretty much limited to a lawsuit for invasion of privacy.

Whether someone could state a good invasion of privacy claim against an FFL for disclosure of 4473 information will depend on a number of factors, including the information disclosed, the circumstances of, and purposes for, disclosure, and whether any actual injury can be shown to have resulted from such disclosure.

Exactly what happened, how it happened and why it happened will make a difference. So an FFL standing on the street corner distributing photocopies of random 4473s to passersby would be one thing. But allowing a representative of a manufacture to inspect 4473s to audit compliance by the FFL with the terms of a business arrangement between the FFL and manufacturer would be another thing.

Originally Posted by 4thPoint

...For the "It's a Privacy Act matter" minded folks.... Exactly what information contained on the 4473 is protected under the Privacy Act?

A moot point since the FFL is not a government agency and therefore isn't subject to the Privacy Act (see discussion, above).

[Ruger480]

Ok...This quote from Tom Servo

Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government. Their conduct is regulated, but nothing is authorized.

Pretty much refutes anything I had in the last 5 posts.

And this from Frank Ettin pretty much sums up the spirit of this thread.

The underlying issue is whether or to what extent the FFL has a legally recognized duty to protect the information in the 4473 against unauthorized disclosure.

A legal duty could arise from a statute expressly prohibiting certain disclosures (perhaps subject to certain conditions or with certain exceptions). So far we've seen statutes from only two States providing limited or unclear protection of the 4473. Absent an applicable statute, the recourse for someone aggrieved by an FFL's allegedly wrongful disclosure of information on a 4473 seems to be pretty much limited to a lawsuit for invasion of privacy.

Whether someone could state a good invasion of privacy claim against an FFL for disclosure of 4473 information will depend on a number of factors, including the information disclosed, the circumstances of, and purposes for, disclosure, and whether any actual injury can be shown to have resulted from such disclosure.

Exactly what happened, how it happened and why it happened will make a difference. So an FFL standing on the street corner distributing photocopies of random 4473s to passersby would be one thing. But allowing a representative of a manufacture to inspect 4473s to audit compliance by the FFL with the terms of a business arrangement between the FFL and manufacturer would be another thing.

But TimSR has the right of it though when he stated:

If you go back and read the OP's orginal question, he asked how many others had the same impression as himself.

As enlightening as this has debate has been (and it has been) all I really wanted to know was who else did not know that the info on their 4473 is not protected.

So. Even though there might not be much more discussion on this, I'd like to ask the moderators not shut it down for a couple more days, in case any more folks care to participate in the poll.