Was DOJ Hiding a Section 215 Gun Registry from Congress?

Among other documents, ODNI released  on Monday all the Attorney General Reports on Section 215 use from 2005 to 2011 (2006200720082009201020112012).

This is the classified version of a report that also gets released in unclassified form as part of a larger report to Congress on FISA numbers (20052006200720082009201020112012; ODNI did not release the report covering 2012 because it lay outside the scope of ACLU’s FOIA). And the paragraph of each of these reports that lays out the following information remains redacted in all of them.

(3) the number of such orders either granted, modified, or denied for the production of each of the following:

(A) Library circulation records, library patron lists, book sales records, or book customer lists.

(B) Firearms sales records.

(C) Tax return records.

(D) Educational records.

(E) Medical records containing information that would identify a person.

Nevertheless, the reports show us two new things.

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First, while we knew the number of modifications has gone up significantly in the last three years (we now know that many of the modifications in 2009 had to do with phone dragnet violations), the latest reports ODNI released say this:

The FISC modified the proposed orders submitted with forty-three such applications in 2010 (primarily requiring the Government to submit reports describing implementation of applicable minimization procedures).

The FISC modified the proposed orders submitted with 176 such applications in 2011 (requiring the Government to submit reports describing implementation of applicable minimization procedures).

Julian Sanchez had speculated that’s what was going on in a post (I can’t find the link right now) noting that NSL use had halved while Section 215 use had gone up. Remember, too, the government has not released a 2010 opinion on Section 215 that may explain why the FISC got much more involved in policing the government’s minimization.

Still, it is almost certain that the need to double check government minimization stems from bulk collections. If those bulk collections were also on a 90-day renewal cycle, then we might be looking at 44 bulk collection programs in 2011.

One more thing. As was reflected in the ACLU Vaughn Index, it appears DOJ never provided these reports to Congress starting with the report covering 2008. It did do so for the report covering 2011, but the report isn’t dated, so it’s not clear it was done in April 2012, when it should have been provided to Congress. Furthermore, that production was cc’ed to John Bates, which the tardy August 16, 2010 production of FISC opinions also was, which makes me wonder whether Bates had to force the Executive to fulfill the requirements in the PATRIOT Reauthorization (both these reports and the pre-2008 “significant constructions of law” requirement stems from the 2006 reauthorization). [4/19/14 correction: The “significant constructions of law” stems from the FISA Amendments Act]

Now, maybe DOJ was just being lazy in not fulfilling the clear legal requirement. But given that it seems to have had no problem fulfilling the requirement for unclassified numbers during the same period, I wonder whether DOJ just didn’t want to reveal that it was collecting on one or more of the specified categories, such as firearms sales records (though I’ve long wondered whether DOJ was also collecting DNA records).

As I noted in June, when Ron Wyden and 25 other Senators asked James Clapper for more details about how Section 215 is used, they emphasized gun records.

It can be used to collect information on credit card purchases, pharmacy records, library records, firearm sales records, financial information, and a range of other sensitive subjects. And the bulk collection authority could potentially be used to supersede bans on maintaining gun owner databases, or laws protecting the privacy of medical records, financial records, and records of book and movie purchases. [my emphasis]

And in September — when he started taking a more active role in legislatively defeating Section 215 — Jim Sensenbrenner joined the NRA in raising concerns about using the law to create a gun registry.

Congressman Jim Sensenbrenner (R-WI) sent a letter today to Attorney General Eric Holder regarding the National Security Agency’s (NSA) bulk collection of data and the Administration’s misinterpretation of Section 215 of the Patriot Act.

On Wednesday, Congressman Sensenbrenner and the National Rifle Association (NRA) filed separate amicus briefs in the American Civil Liberties Union’s (ACLU) lawsuit against administration officials.
A Federal Bureau of Investigation’s (FBI) training manual specifically lists gun sales as records the FBI can obtain under Section 215, the so-called business records provision.

Congressman Sensenbrenner:  “The flawed logic the Obama administration relied on to support bulk collection of Americans’ phone data would also support bulk collection of other personal data. Does the administration believe it has the authority to indiscriminately collect records of firearms sales?

“The FBI, for example, could conclude that it is interested in firearms sales – not only in the type of firearms being purchased, but also in who is selling firearms to whom – thereby ascribing importance to the connections between the buyers and sellers.  These connections would make firearms sales indistinguishable from phone records under the administration’s analysis.

“The administration’s legal view of Section 215 could potentially support building a national gun registry despite Congress’s expressed disapproval and the Second Amendment. This view is beyond anything Congress ever intended and must be reined in.”

Clearly, the people read into this program seem to have reason to be concerned about a gun registry created in defiance of Congressional refusal to create one.

And unless there’s a specific FISC opinion addressing the issue, and unless it got shared with the oversight committees, then the Executive may well have done that in secret, hiding the fact by failing to fulfill a very basic reporting requirement.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

14 replies
  1. phred says:

    I envy the NRA. They have managed to convince a large fraction of the public to care deeply about the 2nd amendment. I wish the 4th amendment got that kind of attention.

    Note, to my 2nd amendment chums, the 4th protects a lot more than your guns. Give it some love, will ya?

  2. Saltinwound says:

    The “Executive” was primarily Obama in 2009 but not exclusively. Is that why we have this awkward word “Executive?”

  3. emptywheel says:

    @Saltinwound: I’ve been trying to use it in cases where the program — or cover-up — spans both the Bush and Obama Admin. This seems to have started in 2008, or maybe 2007, with the 11 applications they found a full year later.

  4. What Constitution? says:

    Gee, what part of “collect everything” is unclear? Now to wait for DiFi to step to a microphone to announce that she and all her Senate colleagues have been “fully aware” of this each time they have voted to enact or renew the programs being used for the maintenance of a gun sales registry. Or Clapper and Alexander to testify that they were being “least untruthful” by keeping this information secret. Bet those events will go over well. It may even be this is the very best use of these technologies, in the grand scheme of things — but like a bank being gored by disclosure of illegally collected evidence kept and shared as reflecting “other criminal conduct”, the idea of the NRA learning that the Second Amendment might have its privacy compromised sure presents a “gambling at Rick’s” moment that could prove interesting.

  5. C says:

    (though I’ve long wondered whether DOJ was also collecting DNA records).

    The FBI has had a stated interest in biometrics for some time and has long argued that we need to keep everyone’s DNA on file. Homeland Security (terrible name) also does require biometric data from visa holders and does retain that for “security reasons.” Just as they have always had a public interest in tracking guns. I believe that they do retain DNA when it is used in a case even if said person is found innocent. We also know that they used such a program to good effect in locating Bin Laden (minus the horrific cost of undermining polio eradication efforts and putting actual medical practitioners at risk).

    Therefore I suspect that they were doing both. I agree that the pointed questions suggest that the gun program is live but given their stated interests and known behavior it is probably safe to assume that they are hoarding everything.

  6. jerryy says:

    …”(though I’ve long wondered whether DOJ was also collecting DNA records).”

    This may set your mind at ease, or not as the case may be…

    In Texas:
    http://www.rawstory.com/rs/2013/11/20/texas-cops-force-drivers-off-the-road-to-give-dna-to-federal-contractors/

    In Alabama:
    http://www.naturalnews.com/040726_DNA_swabs_roadblocks_police_state.html

    There is this from Maryland:
    https://www.eff.org/deeplinks/2013/06/junk-decision-warrantless-dna-collection

  7. masaccio says:

    So the NRA and the gun nuts actually have reason to feel that tremor of knowledge that someone knows what they are doing. Think what that will do for their sense of victimhood.

  8. bloodypitchfork says:

    Ummm..Speaking of the 2nd amendment.. something else has come to light…I believe you need to read this. The article is from Foreign Policy magazine and you have to register to read the entire article. It was linked from SipseyStreetIrregulars, which is the foremost gun-rights site on the net, for reasons I won’t go into here.

    http://sipseystreetirregulars.blogspot.com/2013/11/are-you-d2-or-do-you-just-know-them.html

    ah yes..the FBI/NSA connection. whudda thunk.

  9. bloodypitchfork says:

    @masaccio: quote”So the NRA and the gun nuts actually have reason to feel that tremor of knowledge that someone knows what they are doing. Think what that will do for their sense of victimhood.”unquote

    Speaking of victims, give this whole Surveillance/Militarized Police State 5 years and you’ll be the first to scream if and when the UN Small Arms Treaty gives the power to the state to go door to door in a gun-confiscation orgy by virtue of UN troops kicking your door in. On the other hand, the “gun nuts” as you call them will be protecting themselves..vs you.

    In fact, I’d submit you would have hid under Benedict Arnold’s bed when the 3% of American patriots were giving their lives to secure YOUR liberty. Fuck off asshole.

  10. emptywheel says:

    @masaccio: I’m no fan of the NRA, but if they do have a gun registry it’s all the more egregious bc:

    1) It clearly ignores the will of Congress, for better or worse
    2) While the special needs cases on these dragnets must be crazy in any case, this one is particularly crazy bc only 2 terrorists have used guns, that I can think of, and both were military
    3) This has such an obvious means of being abused (bc there are no real terrorist suspects it would find), which will lead to all of them being abused

    So I’m not losing sleep over the gun registry per se (assuming it exists), but over what it means for separation of powers and the ever expanding terror glob.

  11. klynn says:

    @bloodypitchfork:

    Masachio has been a long time commentor at EW. Masachio’s response was addressing the lobbying tone of the NRA, at least that was my take. You have had some great contributions to the comments with the exception of your last sentence.

Comments are closed.