FBI Director Kash Patel has now confirmed what AmmoLand News first exposed five years ago: the federal government uses the National Instant Criminal Background Check System to monitor firearm purchases by Americans who are legally eligible to buy guns.
That program is not merely troubling, overbroad, or vulnerable to abuse. It violates the law as Congress wrote it.
The Brady Handgun Violence Prevention Act authorized NICS to answer a limited question for a federally licensed firearm dealer: Is this prospective buyer legally prohibited from receiving a firearm? Congress simultaneously prohibited federal officials from turning that system into a registry of firearms, firearm owners, or firearm transactions involving non-prohibited Americans.
The FBI nevertheless turned NICS into a warrantless investigative tripwire. Federal agents can select an American for surveillance, monitor that person’s future background checks, and receive an alert when he attempts to exercise his Second Amendment rights. No conviction, charge, or warrant is required. The government’s suspicion becomes enough to transform a lawful firearm purchase into an investigative event.
The FBI is using the machinery of the Brady Act to violate the Brady Act—and to monitor Americans for exercising a constitutional right.
The FBI Finally Admitted NICS Monitoring Exists
During the Senate Judiciary Committee’s September 15, 2026, oversight hearing on the FBI, Sen. Ted Cruz asked Patel a direct question.
“GOA discovered a secret FBI program called NICS Monitoring, used to track firearm purchases of Americans who were legally eligible to buy a gun but were suspected of a crime. Is that right?” Cruz asked.
“Yes,” Patel answered.
The answer lasted one word, but it confirmed the central finding of an investigation the federal government had spent years obscuring through redactions, litigation, and carefully worded policy changes.
Cruz credited Gun Owners of America, whose Freedom of Information Act work and litigation forced additional records into public view. That work deserves credit. But the original disclosure came from AmmoLand investigative journalist John Crump.
On April 26, 2021, Crump published “Leaked Document Shows ATF Spying on Gun Buyers Through NICS,” based on an internal ATF document leaked to AmmoLand. AmmoLand provided the document to GOA, which pursued the paper trail.
The people targeted by the program were not prohibited persons. ATF could ask the FBI to monitor someone suspected of possible firearms trafficking, straw purchasing, or another potential violation. If approved, FBI personnel would watch for subsequent NICS activity and alert ATF when the person attempted another firearm transaction.
The buyer would not be notified. The purchase could be approved. The subject could remain entirely eligible to possess firearms.
That is not a background check. It is surveillance.
The Brady Act Does Not Authorize This Program
The Brady Act directed the attorney general to establish NICS so firearm dealers could determine whether transferring a gun to a prospective buyer “would violate” federal or state law. That is the system’s assigned function: determining legal eligibility for a particular transaction.
Congress also understood the danger of giving the federal government real-time information about Americans purchasing firearms. Section 103(i) therefore imposed an explicit limitation:
No department, agency, officer, or employee of the United States may use the system to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited from receiving a firearm.
The limiting language is not ambiguous. The exception applies to prohibited persons. NICS Monitoring targets people who are not prohibited.
The program creates an individualized federal system for watching firearm owners and reporting their future firearm transactions. Calling that process an “alert” instead of registration does not change what it does. The government selects a citizen, associates his identity with NICS surveillance, and uses the system to learn when he initiates another firearm purchase.
That is precisely the abuse Congress prohibited in the Brady Act’s enacted text.
Enforcing Brady’s Limits Is Not Defending the Brady Act
None of this should be mistaken for a defense of the Brady Act. The law was anti-gun when Congress passed it in 1993, and it remains anti-gun today.
Brady imposed a federal permission system between a citizen and the lawful acquisition of a firearm. It forces an American exercising an enumerated constitutional right to submit identifying information to the FBI and wait for the government to approve the transaction. A right that depends on a federal database returning the correct answer is being treated as a privilege—and the government has repeatedly proven that its databases produce delays, false matches, and erroneous denials.
Nothing in the Second Amendment’s text or the Nation’s historical tradition supports requiring a peaceable American to obtain federal preclearance before purchasing a commonly owned firearm from a dealer. There was no nationwide background-check bureaucracy in 1791, no federal waiting period, and no centralized government checkpoint recording the exercise of the right to keep and bear arms.
The fact that the FBI violated Brady’s statutory limits does not make the underlying law constitutional. It makes the government’s conduct even more indefensible.
Federal officials took an anti-gun law that already burdened lawful firearm acquisition and expanded it beyond what Congress authorized. Turning the resulting database into a surveillance tool against people who successfully passed the government’s own test.
Gun owners do not have to support the Brady Act to demand that the FBI obey its restrictions. In fact, NICS Monitoring proves why Second Amendment advocates opposed creating a centralized federal gun-purchase checkpoint in the first place. Once the government built the machinery, federal agents found a way to use it for more than Congress publicly promised.
The answer is not merely to administer Brady more carefully. NICS Monitoring must be abolished, and the constitutionality of the federal permission system itself must be confronted.
The FBI Cannot Rewrite the Law Through Regulation
The FBI will undoubtedly point to language in 28 C.F.R. §25.9. The regulation permits information in the NICS Audit Log that indicates a violation or potential violation of law to be shared with appropriate authorities.
But that exception does not authorize the government to choose an investigative target first and then prospectively search for every approved transaction connected to that person.
There is an enormous difference between encountering evidence of a crime during an authorized NICS operation and using NICS to monitor someone because an investigator hopes a future lawful purchase might become useful. Under NICS Monitoring, the transaction does not generate the suspicion. The government’s prior suspicion causes agents to watch the transaction.
The regulation itself says identifying information from an allowed transaction must be destroyed within 24 hours. It also says allowed-transfer information may be accessed directly only by the FBI for auditing the use and performance of NICS, subject to limited exceptions. Most importantly, it repeats the statutory prohibition against using NICS to register firearms, firearm owners, or firearm transactions involving non-prohibited people.
No FBI regulation can enlarge the authority Congress granted. The executive branch cannot write itself a surveillance power that the statute expressly denies.
Buying a Gun Is Not Probable Cause
GOA’s federal court filing over the records states that the FBI and ATF were monitoring more than 1,000 people. It describes monitoring requests based on anonymous tips, financial information, concern that a man might use a shotgun during riots, and even the lawful habit of purchasing firearms, tinkering with them, and later reselling them at a loss.
Those examples expose the constitutional outrage at the center of the program.
Buying several firearms is not probable cause. Spending thousands of dollars at a gun store is not probable cause. Owning the same model of firearm as another person is not probable cause. Traveling, associating with other gun owners, or selling guns from a personal collection is not probable cause. Most importantly, buying a firearm is not probable cause.
These are lawful activities protected by the Second Amendment. An agent’s suspicion is not a warrant, a criminal charge, or a judicial finding. Yet NICS Monitoring allows that suspicion to turn the exercise of a constitutional right into a secret federal alert.
Americans would never tolerate a federal system that notified investigators whenever a disfavored person bought a Bible, attended a political meeting, or visited an attorney. The Second Amendment is not a second-class right, and purchasing a firearm cannot constitutionally be treated as evidence of criminality.
Congress Must End NICS Monitoring
ATF restricted the program in 2025, requiring higher-level approval, written justification, and monitoring periods of 30, 60, 90, or 180 days. It also said alerts should concern suspected federal firearms violations rather than primarily enforcing state gun laws. Those changes did not make NICS Monitoring lawful. They formalized it.
Requiring more signatures before violating a statute does not cure the violation. Limiting unlawful surveillance to 180 days does not make it constitutional. Calling the program a “valuable investigative technique” cannot overcome the text enacted by Congress.
Congress should abolish NICS Monitoring. Then identify every American subjected to it, determine which agencies received alerts, and disclose how approved transactions were used. Records must be preserved for congressional and criminal investigation—not destroyed to conceal who authorized the program. Officials who knowingly violated the statutory restrictions should face consequences.
The history matters because it demolishes the government’s excuses. Congress did not forget to address firearm-owner surveillance when it passed the Brady Act. It expressly prohibited that infringement. The FBI ignored that command and turned a supposedly limited eligibility check into a tool for watching lawful Americans.
Patel’s admission settles the factual question. The remaining question is whether Congress will enforce the law against the agency that violated it.
The law-abiding gun owner will not tolerate federal law enforcement’s unlawful claim of authority to infringe on the Second Amendment right.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
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