Rep. Jimmy Panetta [D-CA] introduced Rep. Rashida Tlaib, [D-MI] (so you know this is going to be wonderful) co-sponsored H.R.5949, the National Instant Criminal Background Check System (NICS) Data Integrity Act of 2020 back in February. It’s high time we took a look at what’s in this thing.
This bill does two things with regard to NICS background checks. First, we have record retention, something the FBI currently isn’t supposed to be doing. This bill would change 34 USC 40901.
From the bill:
“(h) Record retention.—
“(1) DEADLINE FOR RETENTION.—Notwithstanding any other provision of law, the system may retain records related to a transfer or potential transfer of a firearm to a person who is the subject of a call to the system pursuant to subsections (s) or (t) of section 922 of title 18, United States Code, for as long as necessary to determine whether receipt of a firearm by the person would violate subsections (g) or (n) of such section or State law.
“(2) NOTICE OF RETENTION.—If the system has not determined whether receipt of a firearm by a person would violate subsections (g) or (n) of section 922 of title 18, United States Code, or State law within 30 days after a call to the system with respect the person, the system shall notify the person in writing (or by electronic mail if the person has consented to the use of electronic mail) that—
“(A) the system may retain records relating to the person and the transfer of a firearm until the system determines that receipt of such firearm by the person does not violate subsections (g) or (n) of section 922 of title 18, United States Code, or State law; and
“(B) the person may submit to the Attorney General information to correct, clarify, or supplement records (with respect to the person) retained by the system in accordance with this section and any regulation established by the Attorney General.”.
This change allows the federal government to hold records indefinitely once they’ve delayed a purchase, until the government can find the problem or the buyer can prove to their bureaucratic satisfaction that they are worthy of gun ownership.
The bill will also make it more likely that your firearm purchase will be delayed by the NICS system.
If they then deny you, they can retain the records until such time as you prove to them that you are innocent. That’s bad, because the bill also adds this to the law:
“(L) SEARCH OF NATIONAL DATA EXCHANGE DATABASE.—The system established under this section shall search the database of the National Data Exchange when conducting a background check under this section.”.
You may know that a NICS check actually involves checking multiple databases for things like convictions, active warrants, or protective orders, etc. Should this bill pass, the National Data Exchange (N-DEx) System will also be checked. If you aren’t familiar with it, it’s an investigative tool, not a database of known criminals.
N-DEx contains incident, arrest, and booking reports; pretrial investigations; supervised released reports; calls for service; photos; and field contact/identification records.
When you see a TV cop radioing for a check on someone during a traffic stop, N-Dex is where they look. Record-keeping is bad enough, but adding the N-Dex investigation tool to the background check is far worse.
You could appear in N-Dex as nothing but an interviewed witness, and it would be up to you to prove that. Just having your name appear in the database, for perfectly innocent reasons, is all the excuse NICS would need to “delay” your purchase and force you to prove a lack of guilt before buying a firearm.
Imagine a hypthetical N-Dex search that turns up multiple hits on a buyer simply because he lives in a rough neighborhood and was a witness in multiple gang-related incidents. Maybe that’s exactly why he thinks he needs a gun now; for protection from those criminals.
But the NICS gnomes could claim, “Hmm. He keeps turning up in gang shootouts. Maybe he’s actually involved. We better put a hold on him while we check this out more carefully.” It would be up to the poor sap to try to prove that he was filing complaints about crimes, not participating in them.
Should HR 5717 leave us any guns to buy, HR 5949 will ensure we still can’t take them home.