In September, Senators Dianne Feinstein (D-Calif.), Richard Blumenthal (D-Conn.) and Sheldon Whitehouse (D-R.I.) introduced a bill to close an alleged “cyber loophole” allowing prohibited people to purchase guns online. Titled the “Accountability for Online Firearms Marketplaces Act of 2021” (S. 2725), the bill seeks to amend the Communications Decency Act (CDA) to remove immunity for online firearms marketplaces.
Passed in 1996, the CDA was the first attempt by Congress to regulate pornographic material on the internet but would be ruled unconstitutional by the Supreme Court in Reno v. ACLU just one year later. However, Section 230 of the CDA, which grants operators and providers of internet services immunity from liability for content published by users, would remain as law. Two decades later, the Wisconsin Supreme Court would use Section 230 in Daniel v. Armslist (2019) to bar claims against online firearms marketplaces, even overturning a lower court appeal.
“Section 230 was never intended to provide a sweeping free pass to such illicit lethal gun trafficking,” said Blumenthal in a release. “Bestowing blanket immunity on websites for illegal gun sales mocks common sense and public safety.”
Of specific concern to Blumenthal and the bill’s co-sponsors are intrastate firearms transfers between two unlicensed individuals – also known as private party transfers – initiated online using sites like Armslist. To back their claims, the bill cites two specific findings:
“Every year, unlicensed sellers post more than 1,000,000 advertisements on online firearms marketplaces in states that do not legally require a background check. … One study found that nearly 1 in 9 prospective gun buyers who respond to advertisements from unlicensed sellers on a major online firearms marketplace would not pass a background check, which is a rate that is 7 times higher than the denial rate in contexts where background checks are required.”
No source is provided for the findings in the bill text, but the same statistics were published in a 2021 research report by Everytown for Gun Safety, who analyzed over 9 million Armslist posts from 2018-2020. Among their findings, the gun control organization found 78% of 1.6 million ads from unlicensed sellers were from sellers in states that do not legally require a background check.
While federal law requires all licensed gun dealers to perform background checks on prospective buyers for interstate firearm transfers, not every state regulates private sales and transfers of firearms. As of this writing, 16 states (CA, CO, CT, DE, HI, IL, MA, NV, NJ, NM, NY, OR, RI, VT, VA, WA) and Washington, D.C. require a background check for all unlicensed sellers, while six additional states (IA, MD, MI, NE, NC, PA) only require background checks for handguns or specific firearms, leaving 27 states with no such laws on the books. However, the ATF states a person may only transfer a firearm to an unlicensed resident of their state provided they do not know or have reasonable cause to believe the transferee is prohibited from receiving or possessing firearms under federal law.
Still, Whitehouse believes “there is no reason why a retailer should be allowed to evade responsibility simply because they operate online,” willing to punish licensed dealers adhering to federal and state law and operators of online firearms marketplaces for the potential actions of independent sellers and buyers.
The bill also seeks to exaggerate the pervasiveness of private sales and transfers. While it’s unknown how many private sales or transfers take place in states that do not require background checks each year, identified private sales made up 0.001% of more than 39.2 million NICS background checks in 2020 – a record-setting year – according to FBI NICS data.
S. 2725 was introduced in the Senate on September 13 and has been referred to the Senate Commerce, Science, and Transportation committee.