Hearing Wrap Up: Second Amendment Must be Safeguarded Against Overreach

WASHINGTON-Today, the Subcommittee on Federal Law Enforcement held a hearing on "Privacy Protections & the Second Amendment: Examining ATF's Relationship to the Tiahrt Amendment " During the hearing, members discussed the history and purpose of the Tiahrt Amendment and the consequences of the Bureau of Alcohol, Tobacco, Firearms and Explosives' prior failures to abide by it. The hearing also examined the ATF's track record protecting Second Amendment rights.

Key Takeaways:

ATF has been working to rebuild trust after having a long history of failing to consistently uphold the Second Amendment and Americans' liberties.

• Robert Cekada, Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, testified that "[Effective] law enforcement and respect for civil liberties are inseparable obligations, and that is why ATF has entered a new era of reform to rebuild trust with the industry, the federal firearms licensees, lawful gun owners and the public while still prioritizing our efforts on public safety. Some of the specific actions I have taken include establishing a senior industry partnership advisor position to address industry concerns and foster proactive engagement with the regulated community, revoking the enhanced regulatory enforcement policy, sometimes referred to as a zero tolerance policy, and replacing it with a new policy that emphasizes fairness and transparency while recognizing that FFLs are often the first line of defense against gun crime. And I also implemented regulations reforms last month, where ATF issued 34 notices of final and proposed rulemaking following the comprehensive review that was conducted in compliance with the executive order on protecting the second amendment rights, the aim is simpler, clearer regulations that do not compromise public safety."

In recent years, ATF has violated the Tiahrt Amendment - which prevents ATF from sharing firearms trace data - by releasing protected data as part of Freedom of Information Act (FOIA) disclosures.

• Subcommittee on Federal Law Enforcement Chairman Clay Higgins (R-La.) noted in his opening statement that "Despite Tiahrt's obvious importance to police and public safety, recent history has shown that ATF has flagrantly disregarded the law. Some violations of Tiahrt have seemed unintentional, associated with accidental data disclosures while responding to FOIA requests. However, other violations clearly stem from the political and ideological opposition some ATF unelected bureaucrats have for the law. There are several glaring recent examples, particularly during the Biden Administration. To begin, the Biden ATF assisted gun control groups in creating a map of gun shops, including those owned by Members of Congress, by providing Tiahrt-protected data as part of a FOIA request. ATF's release of this data was a clear violation of federal law and intended to help anti-Second Amendment groups."
• ATF under the Biden Administration undermined the Tiahrt Amendment by assisting gun control groups in creating a map of gun shops using trace data.
• ATF also inadvertently released Tiahrt-protected data as part of an unrelated 2022 FOIA request.

Congress must examine ways to rein in ATF's erroneous and inconsistent application of law to prevent infringement of the Second Amendment right to keep and bear arms and to ensure safety, privacy, and fairness for all Americans.

Member Highlights:

Subcommittee Chairman Higgins inquired into the culture of accountability ATF has to the Tiahrt Amendment.

Subcommittee Chairman Higgins: "So, you feel confident that based upon the, the existing culture of compliance with Tiahrt and the examples that, under your leadership, ATF accepts responsibility for and intends to learn from moving forward. But you've been dealing with Tiahrt as an appropriations rider, unknown. If it be renewed year by year, it's expected to be renewed. But until it's done, it's not done. So for 20 years, that's been the culture you've had to deal with. And we intend to pass permanent Tiahrt legislation, standalone legislation. Would that help? Like within the procedures and policies and cultures of the ATF to be more solid in compliance with Tiahrt?"

Director Cekada: "If I may, sir, I think ATF has, I can tell you for certain during my time and under my watch, ATF completely respects Tiahrt. We will make sure there were no releases where there's a challenge. And I look forward to working with this Committee to help give Tiahrt the tool, the strength it needs to protect the trace data that we use in particular, because that data, as you stated, is used to protect our communities. That's how our law enforcement officers, our undercover operations use that information to identify and target violent criminals for our criminal investigations. That data is misused at times, through different leadership in the local communities who compel our state and local partners to turn over that data. The only mechanism ATF has to hold them accountable is to cut a particular law enforcement off of trace. That is not a good solution for us. It's, it's tough for us when that's the only option. Because if I cut that law enforcement agency off of trace, I'm also thereby putting public safety at risk because that same police department is now not able to conduct their investigation."

Rep. Andy Biggs (R-Ariz.) asked about ATF's electronic recordkeeping on federal firearms licensees (FFLs) and how that has improved their operational efficiency.

Rep. Biggs: "The firearms, electronic record keeping, and rulemaking proposal. Why is it better to store records that way?"

Director Cekada: "First of all it's much easier for us when we work with the for the FFLs. If they're using an electronic form, the number of errors that they make are greatly reduced, because the system helps them check through the processing of the 4473 years past the handwritten 4473… So for us and for the consumer and the public, that was the best way to proceed and would allow people to do so."

Rep. Biggs: "[What] safeguards and protections of data privacy, protecting, protecting from intrusion by both the government and private citizens does this system have in place? What do you or what you hope to envision being in place?"

Director Cekada: "So again, to be clear, we have zero connection to the system that the federal firearms licensees use. It does make it much more efficient for a federal firearms licensee. In receiving a phone call from ATF regarding following up on a criminal investigation instead of sorting through hundreds or thousands of paper records, they can go through an electronic system, allow them to retrieve what they need, and provide ATF with a specific answer to our questions."
Rep. Michael Cloud (R-Texas) questioned if anyone at ATF was disciplined for the Tiahrt-protected data leak.

Rep. Cloud: "I wanted to ask you; a lot's been covered on the gag order that's come down and the leak that happened. I just wanted to ask if any disciplinary action has been taken for the person who had leaked the information."

Rep. Cloud: "You're talking about the GOA?"

Director Cekada: "No. So again sir, no one was disciplined. We looked into it. And if there was an intentional leak of any of that information, we would have submitted that to our internal affairs division for review."

Rep. Cloud: "How would you determine if it was intentional?"

Director Cekada: "It wasn't intentional because we actually had, sadly, a significant reduction in folks in the FOIA staff, but also the software we used was a horrible honky software that, like many of our systems, was outdated. It was not an intentional leak. I have to own the mistake for the agency and for our employees, but we've taken steps to ensure that doesn't happen by buying a new software to improve that system."

Rep. Brian Jack (R-Ga.) asked about the impact that firearm trace data has on the firearms community.

Rep. Jack: "I just want to note for the record to under your point, the Biden Administration's, the Biden ATF release, firearm trace data naming over 1,300 firearm businesses across the country in response to a FOIA request, something that Chairman Higgins's bill, which I'm proud to support, would address as the regulator of the firearm industry. Can you please speak to the impact that publicly releasing firearm trace data has on law abiding members of the firearm and second amendment community?"

Director Cekada: "Yeah, I think trace data is critical to law enforcement operations, state, and local and federal law enforcement every day, but at the same note, I think it's equally critical that we maintain the integrity of that information and keep it for law enforcement purposes… There's no-it's very easy to identify an FFL that has a very large business and say, well, 'you're responsible for violent crime in a community.' That's just not the case. When we go into these FFLs, their inventories are in order. Their books are in order. They're always cooperative with us. As a matter of fact, without naming any of them, more often than not, if there's anything suspicious that comes to their attention, they are calling one of our local agents because of the relationship that they've developed over the years."

Click here to watch the hearing.