Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information

SEARCH The National Consortium for Justice Information and Statistics This report was prepared by SEARCH, The National Consortium for Justice Information and Statistics, Francis X. Aumand III, Chairman, and Ronald P. Hawley, Executive Director.

This report was produced as a product of a project funded by the Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice, under Cooperative Agreement No. 96-BJ-CX-K010, awarded to SEARCH Group, Incorporated, 7311 Greenhaven Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily reflect the views or policies of the Bureau of Justice Statistics or the U.S. Department of Justice.

Copyright © SEARCH Group, Incorporated, dba SEARCH, The National Consortium for Justice Information and Statistics, 2005. Contents Executive summary ...... vi Introduction...... 1 A. Background checks post-September 11 ...... 1 B. Role of the National Task Force ...... 2 1. Structure of the commercial information industry...... 2 2. Laws, regulations, policies, and practices that impact commercial vendors and end-users of criminal justice information...... 3 3. Broader public policy issues associated with criminal background checks...... 3 Part I. The commercial criminal justice record information industry ...... 5 A. Types of personal information sold by commercial vendors...... 5 1. Criminal justice record information...... 5 2. Other information...... 6 B. Industry size and scope ...... 7 1. Key industry members...... 7 2. Number of records ...... 9 C. Commercial vendor business models...... 9 1. Compilation of reports...... 9 a. “Runners”...... 9 b. Bulk data purchases ...... 10 2. More on bulk purchases of criminal justice information...... 11 3. Compiler versus reseller ...... 12 4. Customer base ...... 12 5. Prices...... 12 a. Factors impacting vendor pricing ...... 12 b. Vendor pricing examples...... 14 c. Point of comparison: Report pricing from State criminal history repositories...... 14 6. Identification/Record matching...... 15 a. Establishing identity ...... 15 b. Identity in the criminal justice context ...... 17 c. Vendor practices with respect to name-plus-identifier checks ...... 18 d. Vendors and fingerprint-based checks...... 18 D. End-uses of criminal justice record information obtained from commercial vendors ...... 19 1. Employment screening ...... 19 2. Volunteer screening ...... 19 3. Tenant screening ...... 20 4. Media ...... 20 5. Immigration-related checks...... 20 6. Fraud investigation or prevention ...... 21 7. Licensing ...... 21 8. Due diligence...... 21 9. Prenuptial analysis ...... 21 10. Marketing ...... 21 11. Accountability ...... 21

12. Litigation research ...... 21 13. Opposition research ...... 22 14. Voter eligibility ...... 22 15. Curiosity ...... 22 16. Registered traveler programs ...... 22 E. Sources of criminal justice record information for commercial vendors ...... 22 1. The courts ...... 23 2. Corrections departments ...... 24 3. State criminal history repositories...... 25 4. Relative “value” of data from repositories, courts, and corrections departments...... 27 a. Repository data...... 27 b. Court and corrections data...... 28 F. Factors in the growing sale of criminal justice information by commercial vendors ...... 28 1. Automation of criminal justice records ...... 29 2. Technology revolution...... 29 a. Computing power ...... 29 b. The Internet...... 29 3. The response to September 11 ...... 31 4. Marketplace demands ...... 33 5. Risk/loss mitigation ...... 35 6. Legal framework/authorization provided by the Fair Credit Reporting Act and State law ...... 35 7. Unavailability of State and Federal checks in some jurisdictions ...... 35 8. The “bandwagon” effect...... 36 Part II. Regulation of access to and use of criminal justice record information ...... 37 A. Regulation of access to criminal justice record information held by governmental sources ...... 37 1. State repositories and the FBI ...... 37 a. Federal criminal history record legislation and regulation ...... 37 b. National Crime Prevention and Privacy Compact...... 39 c. State statutes governing the receipt and maintenance of criminal history record information by State repositories ...... 39 d. State statutes governing dissemination of criminal justice record information by State repositories ...... 40 — Access to criminal justice record information in an “open records” State, such as Florida...... 41 — Access to criminal justice record information in an “intermediate records” State, such as Washington ...... 42 — Access to criminal justice record information in a “closed records” State, such as Massachusetts...... 42 e. Federal and State statutes authorizing or requiring criminal background checks...... 43 f. Sex offender registry information...... 44 2. Access to criminal history information maintained by courts...... 45 a. Presumption of open public access to court records ...... 45 b. General description of court procedures concerning record access ...... 46 — Chief justices/State court administrators guidelines for public access to court records...... 47 — Example: New rules governing access to electronic records in California trial courts...... 50 — Example: Access to court records in Washington State...... 51 — Access to court records in the Federal courts...... 53

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3. Access to corrections department records ...... 54 a. Florida...... 55 b. Kentucky...... 55 c. New York ...... 56 d. Montana ...... 56 4. Access to local police department records ...... 57 B. Regulation of the practices of commercial vendors...... 57 1. The Federal Fair Credit Reporting Act...... 58 a. Obligations of consumer reporting agencies under FCRA...... 58 b. Obligations of end-users under FCRA...... 60 2. State consumer reporting statutes ...... 60 C. Regulation of information that end-users, particularly employers and landlords, can use to make employment and housing decisions ...... 61 1. Regulation of employers’ access to criminal justice information...... 61 2. Regulation of landlords’ access to criminal justice information...... 63 D. Negligence doctrines that encourage employers and landlords to obtain criminal justice record information...... 65 1. Negligent hiring and retention...... 65 2. Negligence theories applicable to claims against landlords...... 68 E. Self-regulatory efforts of commercial information vendors ...... 69 Part III. Criminal justice record information, commercial vendors, and the development of public policy ...... 71 A. Introduction...... 71 B. Should State central repositories, courts, and commercial vendors be subject to the same rules?...... 72 1. Systems emerged to meet different needs ...... 72 2. Vendor systems and regulatory controls ...... 73 3. Is a unified regulatory system desirable or even possible? ...... 73 C. Are there relevancy considerations in the collection, use, and dissemination of criminal justice information? ...... 75 1. What is relevant?: The example of Eli Lilly ...... 76 2. Guidelines for relevancy...... 76 3. Public policy issues...... 78 a. Who determines relevancy? Should public policy pivot on whether the criminal justice record information is conviction or arrest-only information? ...... 78 b. Is criminal justice record information relevant to terrorism-prevention efforts?...... 79 D. Do commercial vendor criminal justice information databases and the increased reliance on criminal background checks frustrate efforts to reintegrate offenders into society? ...... 80 1. Reintegration ...... 80 2. Recidivism...... 82 3. Public policy options ...... 82 a. Sealing and purging ...... 82 b. Restricting end-user access and ability to use criminal justice record information...... 83 c. Expanding end-user access and ability to use criminal justice record information ...... 83

E. Should commercial vendors be permitted/encouraged/required to use a biometric when identifying individuals who are subject to criminal history record checks and when matching criminal history record information with a particular individual? ...... 84 1. Benefits of fingerprint-supported checks ...... 84 2. Benefits of name-plus-identifier checks ...... 85 3. Increasing use of biometrics in the private sector...... 86 4. Efforts to exclude certain descriptors from public records ...... 87 F. Do commercial vendor criminal justice record checks suffer from completeness, accuracy, or timeliness problems and, if so, what types of public policy “fixes” should be employed? ...... 88 1. Data quality challenges...... 88 2. Fair Credit Reporting Act protections ...... 89 G. When commercial vendors combine criminal justice record information with other personal data to create a “profile,” what are the public safety and risk management benefits, and what are the privacy threats? Does there need to be a public policy focus on this issue?...... 90 1. Reasons for profiling ...... 90 2. Profiling and privacy risks...... 90 Conclusion...... 93 Appendix: Task Force members ...... 95

v Executive summary

Today, background checking— they really growing are all arrest-only information. The law for employment purposes, for questions addressed, often for also pivots on the intended use eligibility to serve as a the very first time, in this report. of the criminal history record volunteer, for tenant screening, information, with employers and and for so many other This report also examines the their agents and contractors purposes—has become a very different business models (commercial screeners) necessary, even if not always a that the commercial screening increasingly armed with State welcome, rite of passage for industry employs. Some and Federal authorization to almost every adult American. screeners engage in a obtain criminal history record Like a medical record, a bank customized search for criminal information for particular types record, or a credit record, a history record information each of employment. background check record is and every time they receive a increasingly a part of every background screening However, by far the most salient American’s information assignment. These types of legal consideration affecting footprint. companies customarily send commercial vendor access is not “runners” to appropriate content or use of the criminal But, with tens of millions of courthouses and other history record, but rather, the background checks being repositories that are likely source of the criminal history conducted annually and with sources of relevant information. record. Criminal history data almost all of these checks maintained by the courts, for the requiring a search of criminal Other screeners purchase most part, continue to be history record databases, how automated criminal history publicly available. The very will all of these checks get records from courts and/or same information maintained by done? More and more, the various law enforcement State central repositories or answer is the commercial agencies “in bulk.” Still other State identification bureaus or background screening industry. background screening maintained at the Federal level companies maintain their own, by the Federal Bureau of This report is the first-ever surrogate national criminal Investigation (FBI) is less apt to comprehensive look at the role history record files. Indeed, be available. Even this that commercial background today, several companies traditional dichotomy, however, screening companies play in the compile and manage criminal is changing with new collection, maintenance, sale, history databases with well in background statutes giving and dissemination of criminal excess of 100 million criminal employers, volunteer history record information for history records. organizations, and landlords, as employment screening and other well as their commercial vendor important risk management Part II of this report examines surrogates, a legal basis for purposes. the relevant law. Much of this access. law addresses the circumstances Part I of this report looks at the under which commercial This report’s legal analysis also burgeoning commercial background screeners can obtain focuses on the Federal Fair background screening industry. access to criminal history record Credit Reporting Act (FCRA). The report examines the type of information held by the courts or This comprehensive law applies information, including the type by executive branch agencies. to the communication of most of criminal history information, The law, most of which is State types of personal information, that is collected, compiled, statutory law and implementing including criminal history maintained, and sold by regulations but some of which is information, by commercial commercial screeners. What Federal law, pivots partly on the vendors to authorized users, companies comprise the subject matter of the criminal including employers and background screening industry; history information—conviction landlords. The FCRA is, how big are they; are they information, for example, is perhaps, the least understood publicly traded; and how fast are customarily more available than

and most underrated privacy way in which relevant law is as a tenant; or in other protection statute. implemented and enforced. situations where background checking is The report identifies and Most importantly, however, the being used. analyzes, in some detail, the Task Force analyzed and • The Task Force also FCRA’s numerous privacy debated the key public policy recommended that the protections, including a issues that arise from the commercial screening requirement that applicants and growing importance of the industry develop biometric employees who are subject to a screening industry. The Task identification protocols. At commercial vendor background Force reached consensus and present, the commercial check receive notice and provide made recommendations on screening industry relies consent. In the event that several of these public policy primarily upon name, plus criminal history information is issues: other identifiers, to make an found and used, the FCRA also • The Task Force identification of an requires that employees be given recommended that the individual. The industry has an opportunity to review and important and greatly improved the correct or contest the accuracy comprehensive protections reliability of name-based of criminal history information. in the Federal FCRA apply, identification tools. Furthermore, the FCRA not only when a commercial Nevertheless, the Task prohibits commercial vendors vendor communicates Force called for the industry and employers and other criminal history information to continue its efforts to authorized users from to an employer or other incorporate a biometric— redisseminating or reusing a authorized users, but also primarily a fingerprint— criminal history record report when employers and others into its identification for other purposes. go directly to the courts or verification methodologies. executive branch Part III of this report looks at the • The Task Force cautioned repositories to obtain compelling public policy issues against the exclusion of criminal history record that arise from the commercial identifiers from public information for employment sale of criminal history record records. The Task Force and other authorized information. In order to provide noted that, increasingly, purposes. texture and depth to this changes in law restrict the analysis, SEARCH convened a • The Task Force called for inclusion of Social Security Task Force comprised of experts guidance to be developed numbers and other and stakeholders. The Task and provided to the users of identifiers in public records, Force included representatives criminal history information including criminal history of State central repositories and regarding the meaning and records. The Task Force State identification bureaus; relevancy of criminal believes that this trend representatives of the FBI; history information. Part of inevitably will increase the representatives of the courts; this “criminal history risk that the wrong file will leaders of the commercial literacy” recommendation is be associated with the screening industry; aimed at assisting users in wrong person. Moreover, representatives of employers and understanding how to read this trend, if it persists, also of volunteer groups; and interpret a rap sheet. poses a threat not only to privacy advocates; and academic Another part of this literacy the quality of background experts and researchers. recommendation is intended checking, but also to efforts to “connect the dots” to prevent identification The Task Force provided between the existence of a fraud. invaluable input about the size criminal history record and and composition of the the extent to which, and the screening industry. The Task way in which, that record is Force members also provided relevant to predictions nuance and insight about the about performance on the job; in volunteer positions;

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For other key public policy issues, the Task Force did not provide recommendations, but its insight and analyses are captured in Part III of this report. These issues are: • A discussion of whether changes in law should be made to the FCRA.

• An analysis of the impact of the availability of commercial vendor criminal history record information on offenders who are released from incarceration and the related “reintegration” crisis.

• The quality, completeness, accuracy, and timeliness of criminal history information included in commercial vendor background checks.

• The merits and the threats arising from data linkage, data mining, and profiling and, in particular, the pivotal role played by criminal history information and commercial vendors in this process.

The Task Force believes that this report will provide invaluable information about the sale of criminal history information by commercial vendors for employment and other background check purposes. The Task Force also hopes that its analyses and recommendations will make a significant contribution to this ongoing and very important public policy debate.

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Introduction

A. Background checks This growth, which many expect been described by a public record post-September 11 will continue or increase in the advocacy organization as “col- months and years ahead, raises a lect[ing] records from disparate In the aftermath of the terrorist host of issues with respect to how sources and mak[ing] them avail- attacks of September 11, 2001, the best to conduct the required back- able conveniently, reliably, and at Nation has seen an explosion in ground checks in the most prompt, low cost. These commercial in- criminal background checks. Leg- efficient, and privacy-sensitive formation providers both enhance islation passed by Congress after manner possible. An important access, with all of its benefits, and the September 11 attacks requires component of these background greatly reduce the burden on gov- new or expanded background checks will be criminal justice ernment clerks by filling many checks in an array of areas, such record information, which broadly requests for records that would as airline and airport personnel, includes information arising from otherwise consume public report workers, and truck drivers an individual’s arrest, conviction, sources.”2 who transport hazardous materi- or other interaction with the crimi- als. Federal agencies have also nal justice system. Given the increasing demand for recommended, rather than re- criminal background checks—and quired, background checks as The criminal justice record infor- the pressure that such demand is well. The Food and Drug Admini- mation included in background expected to place on courts, the stration (FDA), for example, has checks comes mainly from four FBI, and State criminal history issued nonbinding “good practice” sources: repositories—the Bureau of Jus- guidelines recommending that tice Statistics (BJS), U.S. Depart- 1. law enforcement, including food establishment operators con- ment of Justice, and SEARCH, the Federal Bureau of Inves- duct criminal background checks The National Consortium for Jus- tigation (FBI) and State cen- on all employees.1 Even in the tice Information and Statistics, tral criminal history absence of government require- established a National Task Force repositories ments or encouragement, many in on the Commercial Sale of Crimi- the private sector also have ex- 2. the courts nal Justice Record Information to panded the extent to which they examine the role played by com- 3. corrections agencies conduct criminal background mercial vendors in the sale of checks on their employees, busi- 4. commercial vendors that col- criminal justice record informa- ness partners, and customers. lect criminal justice record in- tion.3 formation from the courts or 1 through whatever access State The FDA defines operators of a food establishment to include firms laws provide to law enforce- 2Public Benefits from Open Public that produce, process, store, repack, ment or corrections records. Records, CSPRA Public Records relabel, distribute, or transport food or White Paper series (Arlington, Va.: food ingredients. “Guidance for In- Discrete laws and regulations Coalition for Sensible Public Record dustry: Food Producers, Processors, govern each of these sources. This Access, undated) at p. 3, available at and Transporters: Food Security Pre- frequently means that different (emphasis in origi- ventive Measures Guidance,” U.S. nal). Department of Health and Human information is available to differ- 3The project was funded by and op- Services, U.S. Food and Drug Ad- ent types of users, depending upon ministration, Center for Food Safety the source from which the infor- erated under the auspices of BJS in the Office of Justice Programs, U.S. and Applied Nutrition (March 21, mation is obtained. 2003) (recommending that operators Department of Justice. Since its incep- tion, BJS has taken a leadership role have “a criminal background check The fourth source, commercial performed by local law enforcement in the improvement of criminal his- or by a contract service provider”). vendors, is essentially an alterna- tory record information and the de- Hereafter, FDA Guidance. A version tive means of distributing criminal velopment of appropriate policies for handling this information (see of the guidance issued on Jan. 9, justice record information that is 2002, also recommended checking the already available from govern- ). SEARCH, The National Consortium “Federal Bureau of Investigation ment sources. The role of com- Watchlist.” for Justice Information and Statistics, mercial vendors generally has is a State criminal justice support

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B. Role of the National 3. the broader public policy is- dors can create benefits for end- Task Force sues associated with criminal users of their reports that courts background checks. and government agencies are not The National Task Force on the always able to provide. These Commercial Sale of Criminal Jus- 1. Structure of the benefits range from faster re- tice Record Information (hereaf- commercial sponse times, to tailored informa- ter, Task Force) consisted of information industry tion products, to information from criminal history record managers, multiple information sources per- commercial vendors of criminal The first focus of the Task Force taining to criminal justice record justice record information, court was to explore ways to ensure that information, as well as other types and law enforcement officials, background checks involving of information. users of background checks, and criminal justice information can policy experts. The observations be conducted promptly, effi- The Task Force also considered in this report reflect the Task ciently, and completely, while the implications for privacy and Force’s consensus views but do recognizing and protecting the other interests of the individuals not necessarily reflect the views of rights of the individuals being who are the subject of criminal any particular Task Force member checked. background checks being con- or of his or her institutional af- ducted by commercial vendors. filiations.4 The Task Force held a The Task Force examined the The Task Force considered, for series of multiple-day meetings, structure of the commercial in- example, the accuracy implica- including meetings in New York formation industry, focusing pri- tions of the standard practice of City on March 12–13, 2002, and marily on the segment of the commercial vendors to use name April 29–30, 2003, and in Chicago industry that uses criminal justice and other descriptors, such as So- on December 5–6, 2002. The Task record information for background cial Security number, date of Force focused its attention on check purposes. The Task Force birth, and address (commonly three areas: found that the sale of criminal referred to as “name-plus- justice record information by re- identifier checks”), rather than 1. the structure of the commer- sponsible commercial vendors fingerprints as the basis of associ- cial information industry provides societal benefits, which ating information with individu- 2. laws, regulations, policies, include facilitating economic effi- als. The Task Force also and practices that impact ciency and alleviating demand for considered the rights of correction commercial vendors and end- criminal justice record informa- available to individuals and other users of criminal justice in- tion that otherwise falls entirely to protections that are in place to formation courts and government agencies safeguard against adverse em- for processing.5 The Task Force ployment or other actions on the also found that commercial ven- basis of criminal justice record information being incorrectly as- 5 organization comprised of one gover- Commercial vendors still must in- sociated with an individual (that nor’s appointee from each State, the teract with government agencies to is, “false positives”). Authenticat- District of Columbia, Puerto Rico, compile the information necessary for ing the identity of individuals is and the U.S. Virgin Islands. For more their background checks. However, taking on increased importance, the net burden on government agen- than 35 years, SEARCH has promoted with new commercial products the effective and appropriate use of cies is still likely to be reduced because, in some cases, vendors are able and government proposals in- information, identification, and com- tended to verify that the individual munications technology for State and to purchase criminal justice record local criminal justice agencies (see information in bulk to fulfill multiple is who he or she claims to be. This ). For the same end-user requests for information, is an interest separate from, but period of time, SEARCH has been thereby minimizing the workload of often interrelated with, an interest vitally concerned with the privacy and government agencies. Even where this is not the case, commercial vendors in determining whether there is public access implications of the criminal justice or other informa- automation and use of personally generally can be expected to be more knowledgeable about the agencies tion associated with the individ- identifiable criminal justice record information. involved and the information being ual. sought than is the case with the aver- 4A list of Task Force members is in- age employer or other party request- cluded as the Appendix. ing a background check.

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The Task Force also focused on 2. Laws, regulations, 3. Broader public policy the relationship between commer- policies, and practices issues associated with cial vendors and criminal justice that impact criminal background record information sources, such commercial vendors checks as the courts, law enforcement, and end-users of State repositories, and corrections Third, the Task Force considered 6 criminal justice agencies. The Task Force exam- information broader public policy issues asso- ined the diverse means by which, ciated with criminal background and the sources from which, Second, the Task Force examined checks, identifying areas where commercial vendors obtain crimi- Federal and State law, and related changes may be necessary to en- nal justice record information, regulations, policies, and prac- hance the ability of both govern- including through the use of court tices, that have a significant im- ment and commercial vendors to “runners,” electronic interfaces pact on the manner in which provide information for back- with government agencies, and commercial vendors and end-users ground check purposes in a bulk purchases of criminal justice obtain and maintain criminal jus- timely, complete, and accurate record information from courts or tice information; the ability of manner. The Task Force kept in corrections departments. Depend- end-users to use that information mind the need to balance public ing on the information source, the for employment and other pur- safety interests and the privacy Task Force found that the ability poses; and the safeguards that and civil liberties interests of indi- of a particular court, repository, or must be employed to protect the vidual record subjects, as well as corrections agency to provide data privacy of individuals to whom other considerations such as rein- to commercial vendors was sub- the information pertains. With tegrating criminal offenders into ject to legal restrictions. Such re- some overlap, these laws, regula- society. Public policy issues ex- strictions could prohibit the ability tions, policies, and practices fall amined include: of commercial vendors to obtain into four broad categories: • Regulation. Should the in- criminal justice record informa- formation practices of com- tion, restrict the manner in which 1. those that promote, restrict, or mercial vendors, the courts, information is provided, or dictate otherwise regulate access to State repositories, and correc- the cost (and sometimes cost ef- criminal justice record infor- tions departments all be sub- fectiveness) of obtaining informa- mation held by governmental jected to the same rules? tion from a particular court or sources agency. 2. those that primarily regulate • Privacy. Should the Fair the practices of commercial Credit Reporting Act be vendors, such as the Fair amended to impose obliga- Credit Reporting Act tions on all end-users of criminal justice record infor- 3. those that regulate the information? Should the Act be mation that end-users, par- amended to reach all com- ticularly employers and mercial criminal justice re- landlords, can use to make cord information products? employment and housing decisions 4. negligence doctrines that promote efforts by employers 6 The outsourcing of government and landlords to obtain crimi- functions to private-sector entities and nal justice record information. the use of private-sector contractors by courts or government agencies to assist them in the management of criminal justice record information is beyond the scope of this report. Such initiatives are referenced herein only to the extent that they bear on the commercial sale of criminal justice information.

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• Relevancy. Are there rele- • Profiling. When commercial vancy considerations in the vendors combine criminal collection, use, and dissemi- justice data with other per- nation of criminal justice re- sonal data to create “pro- cord information? If so, who files,” what are the public determines what is relevant? safety and risk management Is criminal justice record in- benefits, and what are the pri- formation relevant to anti- vacy threats? Should public terrorism efforts? Should policy be developed to ad- public policy pivot on dress these issues? whether the information in question is arrest information or conviction information? • Reintegration. Each year, approximately 650,000 offenders are released from incarceration. If commercial vendors retain criminal justice record information indefinitely (and make this information available indefinitely), does this frustrate efforts to reintegrate these offenders into society? • Biometrics. Should commercial vendors be permitted/encouraged/required to use a biometric (presumably, a fingerprint) when identifying individuals who are subject to criminal background checks and when matching a criminal justice record with an individual? • Data Quality. If (and this is very much a question) commercial vendor criminal justice record checks suffer from incompleteness or inaccuracy or staleness, what, if anything, should be done about this from a public policy standpoint?

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Part I. The commercial criminal justice record information industry

Part I focuses on the structure of arrest); detention; indictment or Terrorist Watch List information the segment of the commercial other formal criminal charge (and if it were available.10 information industry that deals in any conviction, acquittal, or other criminal justice information. The disposition arising therefrom); Domestic criminal justice record following discussion is based on sentencing; correctional supervi- information continues to be the information furnished by com- sion; or release of an identifiable primary source of most traditional mercial vendors who participated individual.7 background checks. However, on the Task Force, as well as in- particularly in the post-September dependent research. The industry Criminal justice record informa- 11 environment, commercial ven- description should be viewed as a tion also includes other informa- dors are increasingly interested in “snapshot” of the state of the in- tion that originates with courts and foreign criminal justice record dustry at the time this report was government agencies, including information. Some firms special- prepared. It should be noted, how- sex offender registry information; ize in foreign background ever, that this industry is rapidly wanted person information; and investigations. evolving as a result of such factors protective order information.8 For as advances in technology, the purposes of this report, criminal Criminal justice record informa- development of new products, justice record information does tion, for the purposes of this re- growing demand, increased effi- not include investigative and intel- port, includes only information ciencies, and industry consolida- ligence information, although it is pertaining to an identified person tion. the sense of the Task Force that that is used for some purpose re- commercial vendors would be It is also important to note that interested in obtaining nonpublic9 cord of Robert J. Jordan, FBI, on In- while the focus of this report is formation Sharing Initiatives before commercial vendors dealing in 7See 28 C.F.R. § 20.23(b). the U.S. Senate Committee on the criminal justice information, these 8 Judiciary Subcommittee on Adminis- vendors often offer their clients The line between criminal and civil trative Oversight and the Courts, Apr. justice information is not necessarily 17, 2002. additional information products as clear as it once may have been. One and services—such as employ- Task Force member illustrated this 10It is the sense of the Task Force ment history verification, identity point by noting that in her State, that commercial vendors do not cur- authentication, address verifica- child-support writs, which originate in rently have access to nonpublic portion, credit reports, and drug- civil courts, can result in criminal tions of the TWL, except to the extent screening services. arrest in the event that an individual that such access is necessary to pro- does not satisfy child-support obliga- vide an information product or service tions. to the government. See, e.g., Ea- A. Types of personal 9 gleCheck, Ltd., “EagleCheck Re- The FBI divides the Terrorist ceives TSA Approval for Field Trials information sold by Watch List (TWL) into three catego- commercial vendors at Cleveland Hopkins International ries, only one of which, the Most and Akron-Canton Regional Air- Wanted Terrorist List, is publicly ports,” Press Release (Jan. 23, 2003) 1. Criminal justice record available. According to the FBI, the available at TWL contains the following compo- information . (“At full implementation, Ea- The primary focus of this report is the names of individuals for whom gleCheck can reference the most upon commercial vendors that sell formal charges or indictments have to-date intelligence sources, such as been issued (e.g., …individuals on the the National Crime Information Cen- criminal justice record informa- Most Wanted Terrorist list). The section. For purposes of this report, ter and the Terrorist Watch List, to ond category will include the names determine whether potential passen- criminal justice record informa- of individuals of investigative interest gers are known threats.”) The Task to the FBI. The third category of the tion means, in large part, tradi- Force is unaware of nonpublic TWL tional criminal history record TWL will include the names of indi- information being incorporated into information pertaining to the ar- viduals provided by the Intelligence background checks provided to poten- Community and cooperating foreign tial employers or others. rest (or notice to appear in lieu of governments.” Statement for the Re-

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lating specifically to that person. cords; licensing records; marriage cies nationwide and for public The use of criminal justice record and divorce records; real property records in 35 States.16 information for statistical analysis records; tax lien records; voter or research purposes is beyond the registration records; motor vehicle Publicly available information is scope of this report. records; records pertaining to derived from a nonpublic records other modes of transportation, source that is widely available. 2. Other information such as boats and airplanes; cor- Classic examples of publicly porate filings; Uniform Commer- available information include It is important to note that crimi- cial Code filings; Security and telephone books, newspapers, and nal justice information is only one Exchange Commission filings; the other periodicals. Publicly avail- facet of a much broader personal- Office of Foreign Asset Control able information also includes information industry. Commercial “blocked person list”13; and, of specialty publications, such as vendors customarily deal in three course, criminal justice records. alumni and professional directo- broad categories of information ries. 11 about individuals: public record Although criminal justice record information, publicly available information is the primary focus An example of an information information, and information from of this report, it is important to product based on publicly avail- nonpublic sources. note that many commercial infor- able information is Acxiom’s mation vendors place their princi- Infobase Telephone Directories Public record information is pal focus on other types of public product, a database that provides derived from public records main- records. Dolan Information, for users with access to more than 12 tained by the government. Public example, is a leading provider of 123 million telephone and address records are created as a result of public records pertaining to bank- listings throughout the United virtually every interaction with ruptcies, civil judgments, State States and 16 million Canadian government. Public records con- and Federal tax liens, and eviction listings.17 The file harvests data taining personal information in- notices.14 Dolan offers access to from more than 5,000 directo- clude: bankruptcy records; civil more than 100 million records in ries.18 court records; birth and death re- formats ranging from batch processes to online searches.15 Online Nonpublic information is de-

11 searches are offered for bankrupt- rived from sources other than pub- Of course, there is also a market lic records or publicly available for non-personally identifiable infor- information. Such information mation, such as statistical and aggre- 13 Executive Order 13224, issued by may include, but is far from lim- gate information. A discussion of the President Bush on Sept. 23, 2001, ited to, a consumer’s credit history policy issues arising from the use of prohibits all U.S. persons and entities these types of information products is from conducting financial transactions reported to a consumer reporting beyond the scope of this report. (including wages and insurance bene- agency by a merchant or financial 12What constitutes a “public record” fits) with persons or entities identified services organization; medical is a matter of some debate, with some as having terrorist ties. The Treasury information; survey and other arguing that all government records Department’s Office of Foreign Asset self-reported information by an are public records and should be Control maintains and publishes a list individual; information provided available to the public because tax of such persons. Some commercial dollars pay for their creation and vendors have integrated this list into maintenance. This view is not reflec- their background screening products. tive of current law, however, which 14 Dolan Information, “About Us,” 16Dolan Information, “Banko On- restricts the availability of some gov- available at ernment records on a variety of line,” available at (visited Jan. 20, 2004). Dolan rity to privacy. Examples in the latter /bankoonline.cfm> (visited Jan. 20, Information was purchased by Lex- 2004). regard include census data on individ- isNexis, a member of Reed Elsevier ual households (not aggregate census Group plc, in August 2003. Ibid. 17Acxiom Corp., “InfoBase® Tele- data), tax returns, and adoption re- phone Directories,” available at cords. The treatment of public records 15 Dolan Information, “Products,” (visited records that include personally identi- (visited Jan. 20, rently available to the public. 2004). 18Ibid.

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by consumers on product warranty only 103.2 million consumer 1. Key industry members cards; and insurance claims data. credit reports.23 The company with one of the Perhaps the most prominent ex- B. Industry size and largest commercial criminal jus- amples of companies providing scope tice record information businesses nonpublic information are the is ChoicePoint, Inc., based in Al- Nation’s three national credit- The portion of the commercial pharetta, Ga. ChoicePoint, which reporting systems: Equifax, Expe- information industry that provides is publicly traded on the New rian, and TransUnion. Consumer criminal justice information prod- York Stock Exchange, has ap- 24 reports prepared by these systems ucts is difficult to quantify. In proximately 3,500 employees. may include public record infor- addition to a few large industry ChoicePoint reported nearly $792 25 mation, such as tax liens or bank- players, there are hundreds, per- million in revenue for 2002. ruptcy information. The bulk of haps even thousands, of regional Almost $309 million of this in- the data, however, pertain to the and local companies. Given the come came from the company’s existence and payment status of a number of vendors and the variety Business and Government Serv- consumer’s credit cards, mort- of business models they employ, ices Division, which includes its gages, auto loans, student loans, the Task Force was unable to employee and tenant screening etc. It is estimated that each of the quantify the overall number of businesses and its other public 26 three major credit-reporting sys- commercial vendors, the overall record businesses. Over the past tems maintain approximately 190 number of criminal background several years, ChoicePoint has million consumer credit files and checks conducted for noncriminal purchased dozens of other infor- that 2 billion pieces of data are justice purposes in the United mation companies, including at incorporated into these consumer States in a given year, or the over- least 11 involved in the employee 27 credit files each month.19 It is also all revenues of this sector of the screening process. ChoicePoint estimated that approximately 1 information industry. reported that it conducted ap- billion consumer credit reports are proximately 3.3 million back- issued in the United States every Since comprehensive, industry- ground investigations during year.20 Equifax, the largest of the wide data are not available, this 2002, the vast majority of which national credit-reporting systems report instead identifies some of included a criminal justice infor- and an S&P 500 company, for the largest and most innovative mation component. example, has more than $1.1 bil- players in the criminal justice in- lion in annual revenues and 4,800 formation segment of the informa- US Investigations Services employees in 12 countries.21 Dur- tion industry (as well as some (USIS), which was the Office of ing 2001, Equifax’s core con- niche players) and uses their Federal Investigations before it sumer reporting business products as a means to illustrate was privatized in 1996, has more produced 357.8 million consumer the types of products that are than 5,600 employees operating 28 credit reports.22 Just 10 years ear- available. Subsequent sections of from 185 locations. USIS reports lier, in 1991, Equifax produced this report examine the types of 24 business models that commercial ChoicePoint, Inc. “Overview,” vendors employ (some focus on available at (visited Jan. 20, which is done in several ways; 2004). 19 some sell criminal justice infor- Consumer Data Industry Associa- 25 mation to end-users; and some 2002 Annual Report (Alpharetta, tion, “About CDIA,” available at Ga.: ChoicePoint, Inc., 2003) at p. 18. both compile and sell criminal 26 (visited Jan. 20, 2004). justice information). This report Ibid. 27 20Ibid. also provides examples of how Leslie Walker, “Police Records much commercial vendors charge 21 for Anyone’s Viewing Pleasure,” Equifax, “About Equifax,” avail- for their products and the types of Washington Post (May 23, 2002) at p. able at factors that can affect pricing and E01. Hereafter, Walker article. (visited Jan. 20, 2004). the industry’s customer base. USIS, “Company Profile,” available at 222001 Annual Report (Atlanta: 23 (visited Jan. 12, 2004).

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having completed more than 2.4 The company offers a range of including employment back- million investigations each year products, including “verification ground screening; resident screen- for its government and commer- of Social Security numbers, ing services; consumer location cial clients.29 USIS has expanded criminal record search, reference services; substance abuse man- from its traditional government verification, education verifica- agement and testing services; and investigation business, in part tion, and other methods to assess driving records.39 through acquisitions. In 2002, for an applicant’s character, creden- example, USIS acquired DAC tials, and ability to do the job.”34 National Background Data Services, a firm that specialized in (NBD), founded in 2000, is a pri- employment screening for the LexisNexis, headquartered in vately held company that special- transportation industry.30 The Dayton, Ohio, has more than izes in criminal justice transportation unit, now named 12,000 employees worldwide and information.40 NBD may have the USIS Transportation Services, is a member of Reed Elsevier Nation’s “largest privately held reports having more than 300 em- Group plc.35 LexisNexis offers a criminal records database of its ployees and a network of more range of information products, kind.”41 NBD does not provide than 4,000 court runners.31 USIS including searchable access to 4 criminal justice information di- Transportation Services reports billion documents obtained from rectly to end-users. Instead, the having approximately 30,000 cli- thousands of sources.36 In June company provides the data to ents nationwide and processing 2002, Lexis announced plans to business partners who, in turn, “in excess of 14 million consumer bolster its criminal justice infor- provide the information to the reports annually.”32 mation offerings through an alli- end-user.42 As of May 2003, NBD ance with National Background had 17 employees.43 Other large commercial vendors Data, Inc.37 are also enhancing their criminal Rapsheets.com, a subsidiary of background check capabilities. In First Advantage Corporation, cre- The Daily News Publishing Com- August 2002, for example, Acx- ated in 2003 as a result of the pany of Memphis, bills itself as iom, which is based in Little merger of First American Registry “the most comprehensive site on Rock, Ark., announced the acqui- and US Search.com Inc., which the Internet in delivering instant sition of TransUnion’s employ- has prominently advertised its results of criminal records ment screening unit. The new services on television, is publicly searches” with more than 160 Acxiom Information Security traded on the NASDAQ exchange million records.44 The company Services unit, located in Cleve- and has approximately 1,200 em- 38 land, has about 140 employees ployees. The components of the 39 33 The First American Corp., “The and 1,800 customers nationwide. new company had revenues of First American Corporation to Merge approximately $160 million in Screening Information Business with 2002 from a variety of products, US SEARCH.COM, Inc.,” Press Re- 29Ibid. lease (Dec. 16, 2002) available at 30 USIS, “USIS Transportation Serv- (visited June 28, 2004). Check/InTheNews/USSearch.asp> (visited Jan. 9, 2004). Hereafter, 35National Background Data, “Lex- . USIS Transportation Overview. isNexis, National Background Data 41National Background Data, 31USIS, “Frequently Asked Ques- Announce Strategic Alliance,” Press Release (July 11, 2002) available at “About NBD,” available at tions,” available at (visited Apr. /com_about.cfm> (visited June 28, /transportation/faq.htm> (visited Jan. 2004). 9, 2004). 2, 2004). 42 36 Ibid. 32USIS Transportation Overview, Ibid. 43 supra note 30. 37Ibid. National Background Data, sub- 33 mission of information to the Task Acxiom Corp., “Acxiom® Ex- 38 First Advantage Corp., “About Force (May 23, 2003). pands Its Customer Solutions by Of- Us,” available at 44 fering Employment Security (visited Jan. 20, 2004). Criminal Records,” available at (Aug. 12, 2002) available at

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began compiling criminal justice its Web site as having more than purchase particular records record information databases in 160 million records.49 necessary for the preparation 1997.45 Rapsheets.com sells in- of a report about a specific formation directly to end-users These industry figures, of course, individual. over the Internet as well as to re- do not necessarily mean that these sellers. By May 2002, the com- companies hold criminal justice 1. Compilation of reports pany reportedly had nine employ- information about 90 or 160 mil- ees.46 lion unique individuals. Because a. “Runners” the companies count by record The traditional method used by 2. Number of records (rather than person), there is con- commercial vendors to conduct a siderable potential for overlap. criminal background check, once One method of measuring the One individual may be the subject a report is ordered, is to send per- industry as a whole, as well as that of multiple records, due to a con- sonnel (sometimes called “run- portion dealing with criminal jus- viction on multiple charges, mul- ners”) to the courts (and tice information, is by measuring tiple convictions in one sometimes to police departments) the number of records. jurisdiction, or convictions in mul- in the jurisdictions where the re- tiple jurisdictions. In addition, the port subject lives or has lived (and ChoicePoint reports that it has 17 same incident may be reflected in sometimes adjoining counties). billion public records. This in- multiple sources. If the vendor An inquiry might also be sent to a cludes its National Criminal File, obtains information both from a State criminal history repository, which includes more than 90 mil- State court and a State department if access to the repository’s re- 47 lion criminal records. Other of corrections, for example, an cords is allowed by law. Once the companies report having more individual convicted of an offense information is received, a report is criminal justice records than may show up once in the court’s prepared on the basis of that in- ChoicePoint. NBD’s National records and again in a separate formation and sent to the end- Background Directory, for exam- record authored by the department user. Preparation of these reports ple, provided, as of spring 2003, of corrections. can be labor-intensive and may real-time access to more than 126 take days or sometimes weeks to million offense records covering produce. 48 C. Commercial vendor 38 States. Rapsheets.com, which business models bills itself as “the most compre- Given that a nationwide network hensive site on the Internet in de- Not surprisingly, commercial of runners would be needed to livering instant results of criminal vendors take a variety of ap- cover all of the Nation’s nearly records searches,” advertises on proaches to the packaging and sale 3,500 counties, maintaining a of criminal justice record informa- network consisting entirely of tion. These approaches include: employees is generally avoided as cost-prohibitive. As a result, run- • bulk purchases of criminal ners may be employees of a par- justice record information, (visited Jan. 20, 2004). Hereafter, ticular commercial vendor or they which is used to create a da- About Rapsheets. may be independent contractors tabase for resale of the infor- 45Ibid. for one or more commercial ven- mation as requested dors. ChoicePoint, for example, 46Walker article, supra note 27. • “gateway purchases,” estimates that one-half of its court 47 ChoicePoint, Inc., “ChoicePoint® whereby end-users purchase runners are its own employees, a Acquires ASAP, Expands Capabilities records from a court or crimi- figure it believes to be high for in Tenant Screening,” Press Release 50 (Oct. 13, 2003) available at nal justice agency through a national players in the industry. by the vendor (visited Jan. 20, 2004). • “traditional” or “one-off” 48 See purchases, whereby vendors 50ChoicePoint, “ChoicePoint Com- (visited tional Task Force on the Role of the Apr. 2, 2004). Hereafter, NBD Crimi- 49About Rapsheets, supra note 44. Private Sector in the Use and Man- nal Record Searches. agement of Justice Information” (Feb.

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Runners may be court employees site to find out about friends, rela- Retriever Network (PRRN).54 earning extra money, former trial tives, or acquaintances.51 In an- PRRN claims more than “700 lawyers, law students, paralegals, other example, Gwinnett County, members in 50 states that retrieve or others. They may work full- Ga., near Atlanta, posts on a Web documents from local government time, part-time, or on an on-call site the mugshot of anyone ar- agencies in over 2,000 counties basis. Some vendors require that rested in the county (approxi- nationwide.”55 The organization the runners they hire have a busi- mately 14,000 per month), along has a Code of Professional Con- ness license and insurance. Court with information about the duct, which consists of 10 compe- runners often specialize in records charges filed.52 Originally, records tency and client service from a particular court or agencies were to be publicly available guidelines.56 in a particular county or counties. through the site indefinitely, but These runners become familiar following criticism on privacy b. Bulk data purchases with where to go to obtain re- grounds, the sheriff’s department With advances in automation, cords, how the court or agency decided to limit public access to business models are changing. In organizes its records, and what the 31 days following arrest.53 the past few years, for instance, local court’s or agencies’ access companies have begun purchasing policies and procedures are. In Commercial vendors report that as records in bulk, particularly from addition, runners, unlike the bulk a quality control measure, they State courts and corrections de- record purchasers discussed later, frequently include “salted” re- partments, and building their own are not limited to those courts and quests among the requests they databases for “instant” searches. agencies that have automated their ask runners to fill. So-called salted Initially, these databases were systems and make their records cases are cases for which the available in bulk. Furthermore, commercial vendor already knows 54Full membership in PRRN is open runners can obtain the most recent what records the court has on file to “any firm or individual that physi- information available from the in a particular matter. Given this cally goes to the county, court or other courts or agencies, unlike bulk knowledge, the vendor can review government agencies to search public data purchasers, who often can the records returned by the runner records or retrieve documents. County coverage is limited to only those update records only on a monthly in order to confirm that a runner is counties serviced with FICA- or other periodic basis. checking all of the relevant employees.” Associate membership sources and returning all the essentially “are public record database As courts and agencies increas- proper records. or gateway providers, public record ingly automate their recordkeep- distributors, or public record search ing systems and take advantage of Individuals and organizations that firms that employ a correspondent network to obtain records.” BRB Pub- the Internet as a means of distribu- directly retrieve records from lications, “The Public Record Re- tion, it may be possible to search courthouses and government triever Network,” available at relevant records without sending a agencies have their own trade (visited Jan. 20, 2004). agency. The Hamilton County, 55Ibid. Ohio, court system, for example, 56 has placed all of its publicly avail- Ibid. The competency guidelines include: 1) knowing where each type able records online. According to 51 “ ‘Dirty Laundry’ on the web has of local public record is located; 2) the Clerk of the Court, the site some citizens very upset” transcript, accessing these records regularly; 3) received 29 million hits in August On the Record with Greta Van understanding the content of the re- 2002. He believes that “most of it Susteren (Sept. 5, 2002) (interview cords retrieved; 4) searching the re- is being used by attorneys, by with Jim Cissell, Clerk of the Court, cords themselves in those government landlords that are checking out Hamilton County, Ohio). Hereafter, agencies that do not conduct searches Dirty Laundry transcript. potential tenants, by people check- for the public; and 5) maintaining 52Matt Bean, “Mugshots online: good relationships with agency per- ing out potential employees, and sonnel. The client service guidelines things of that nature,” but esti- Take a peek at the perps,” CNN.com (Apr. 11, 2002) available at include: 1) returning calls promptly; mates that 15% of users go to the 2) completing projects as promised; 3) (visited Apr. 2, 2004). expediting results on request; and 5) 19, 2003). Hereafter, ChoicePoint on request, explaining how agencies comments. 53Ibid. maintain their records. Ibid.

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designed and marketed to serve particular data sources or com- During the normalization process, narrow searches limited by county bined queries. some vendors screen out informa- or State. tion that they do not believe is To facilitate the ability to search relevant to any of the purposes for Beginning in 2001, however, multiple databases with one query, which their customers are obtain- commercial vendors began to the records obtained from courts ing reports. One member of the rollout “nationwide” products. and State agencies are typically Task Force noted, for example, These products allow users to “normalized” (that is, converted that while some of the bulk data almost instantly search proprietary into the vendor’s standard format) that his company receives in- databases containing upwards of before being made available to cludes military service history and 160 million criminal records from end-users. Normalization can be a next of kin information, that in- every State. As such, these difficult undertaking because the formation is not included in re- searches provide nearly instant formatting and structure of data- ports that are ultimately provided access to a far greater breadth of bases can vary from court to court to end-users. information that does not focus and agency to agency. Task Force merely on jurisdictions where an members noted that it is not un- Formats in which bulk data are individual most recently lived or common for the descriptions of provided to commercial vendors worked. One drawback, however, offenses used by prosecutors, the vary widely, based on the techni- is that the currency of the data courts, and repositories in a par- cal capabilities of the court or contained in these databases may ticular State to vary. In addition, agency providing the data. For vary widely, depending on how offenses, offense codes, and of- example, data may be transferred frequently updates are available fense descriptions included can to vendors via CD-ROM, ZIP from State and local courts and vary widely from State to State, files, floppy disks, or magnetic agencies and how frequently these and these variants must be ac- tapes. updates are obtained by the com- counted for during the normaliza- mercial vendor. tion process.58 Updates are typically available on a monthly basis. This varies, how- 2. More on bulk ever, depending not only upon purchases of criminal how often the source makes up- 58 justice information The Joint Task Force on Rap dates available, but also on Sheet Standardization, comprised of whether the vendor promptly ob- Whether a court or agency sells its representatives of the FBI’s Criminal tains the update and integrates it Justice Information Services (CJIS) records in bulk depends on local Division, the CJIS Advisory Policy into existing products. Updates law and the policies of the court or Board (CJIS APB), the National Law may include only new records or agency. Bulk data purchases typi- Enforcement Telecommunications they may also include updated or cally consist of the transfer of System (NLETS), SEARCH, and deleted records. As a result, ven- electronic, rather than manual, State and local law enforcement agen- dors customarily prefer to obtain records.57 When information is cies, has been working since the mid- an entirely new copy of the data- purchased in bulk from public 1990s to develop a standardized interstate criminal history specification. base because this relieves the ven- record sources, it is standard prac- The principal objectives of the project dor of having to merge a small tice for commercial vendors to are to develop an XML-based stan- subset of updates into an existing maintain information from each dardized criminal history transmission system. data source separately (although format; develop a standardized pres- multiple databases may be in- entation format utilizing the XML Bulk ordering and invoicing prac- transmission format; and develop a dexed to facilitate a multisource tices vary by court or agency. In concept of operations that combines search). This allows the vendor to criminal histories from multiple juris- some cases, once an account is offer its customers searches of dictions into a similar criminal his- established, updates are automati- tory. Joint Task Force on Rap Sheet cally sent along with an invoice. Standardization, Interstate Criminal In other cases, the commercial 57One possible exception is police History Transmission Specification: vendor must be proactive, submit- XML Version 2.01 (June 2001) at p. 4. blotter information, which is typically not automated. As a result, users, such Once completed and implemented, as reporters, must rely on manual this standardization effort would dors by reducing the normalization records. benefit not only the criminal justice burdens they currently face. community, but also commercial ven-

Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information Page 11

ting orders and payments to the Some vendors, such as National ground check, then (2) makes a court or agency, which subse- Background Data, do not sell their recommendation regarding quently sends the data. products directly to end-users, placement of the report subject. such as employers and landlords. The type of report ordered also 3. Compiler versus Instead, they serve solely as a can have accuracy and relevancy reseller source of information for back- implications.61 ground screening companies that Another distinction among com- then resell the information to end- mercial vendors turns on whether users. Other vendors sell their the vendor obtains its information products both directly to end-users from a governmental source or and through resellers. Some com- obtains the data from another mercial vendors target end-users commercial vendor. Commercial who are looking to use reports for vendors that obtain information particular purposes, such as em- compiled by other commercial ployment screening, while others vendors for the purpose of resell- make the information available to ing the data are generally referred any type of end-user, including to as “resellers.” The Federal Fair the general public. Credit Reporting Act59 imposes special obligations on resellers (if 5. Prices the report being sold constitutes a “consumer report”) in recognition a. Factors impacting of their unique status as middle- vendor pricing men between the compiler and the From all accounts, the prices that end-user. commercial vendors charge for 61This point was made in a submis- criminal justice information vary sion to the Task Force by Choice- Frequently, commercial vendors widely. Broadly speaking, price is Point: “In general, the use of static act as both compilers and resel- a function of the cost of the re- databases or online access to court indexes can be provided rapidly at a lers, compiling products in their cords being sought and the very low price, however the relevance area of specialty, while reselling amount of resources that commer- and accuracy of the information pro- other information products. Rap- cial vendor must employ to pre- vided may offset the initially per- sheets.com, for example, special- pare the report. ceived value. Conversely, the most izes in compiling criminal justice accurate method of criminal record information. It also, however, acts Factors influencing price might retrieval may be through an in-person as a reseller of name, address, and include the method of research review of actual court docket records, however this service is typically more Social Security number identifica- employed, and the extent to which time consuming and expensive. The tion and verification products pro- the vendor (as opposed to the end- vendor’s review and handling of duced by Experian and user) analyzes the results. Online criminal record information before 60 TransUnion. research is generally less expen- delivery to the client will also affect sive than sending runners to pricing. Clients who retrieve records 4. Customer base courthouses. Similarly, the less through direct vendor access are usually provided raw data or record in- analysis required by the commer- Another distinction among com- formation. This type of service results cial vendor, the less expensive the in a low acquisition cost for the client mercial vendors is the manner in report usually is for the customer. but requires additional effort by the which they market their products. For example, a report that pro- client to validate the accuracy of the vides the consumer with all the record and its connection with the 5915 U.S.C. § 1681 et seq. The information collected by the ven- subject. At the other end of the spectrum are clients who require only a FCRA is discussed in part II of this dor (and which the consumer is report. Pass or Fail result from their vendor, responsible for evaluating), is with the vendor responsible for con- 60Rapsheets.com, “Other Searches,” generally less expensive than a firming the record belongs to the sub- available at product in which the commercial ject and for using the client’s decision (visited Jan. 20, hiring criteria to information pro- acceptable or unacceptable.” Choice- 2004). Point comments, supra note 50. duced in the course of a back-

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There may also be other factors at play in pricing, such as the number of background checks that a vendor orders (which may warrant a volume discount) and the actual cost of obtaining data from a particular source. In addition, what a particular target market is willing to pay for the product being provided can also be an important factor in pricing.

Table 1 illustrates how data sources and vendor services can affect the price of the report produced.62

Table 1: How vendor services affect report prices

Data source Static database or Online record In-person record court index searches searches through review State-level access Vendor service level Direct data access with $ $ $$ no adjudication or analysis of records Record review to con- $ $$ $$ firm match with subject Record review to con- $$ $$ $$$ firm match with subject plus filtering of nonem- ployment records Record review to con- $$ $$$ $$$ firm match with subject plus pass/fail scoring based on client’s decision matrix

62Source: ChoicePoint, Inc.

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b. Vendor pricing examples and Federal district registry searches are $9. Spe- 66 Some vendors advertise pricing on searches. cial screening packages for volunteer organizations are the Internet. It is not always pos- • BackgroundChecks.com is an priced from $2 to $9, depend- sible to tell from the sales materi- Irving, Tx., company estab- ing upon the jurisdiction, with als whether the information is lished in 1999. The firm of- additional State or county ex- being drawn from databases or fers “instant” database penses in some cases.71 through the use of runners; how- background checks for 45 ever, it is reasonable to assume States, with prices ranging c. Point of comparison: that instant or nearly instant from $5 to $12 for individual Report pricing from State statewide or national searches are State searches and $13.95 for criminal history database searches. Local or county a 45-State search, with repositories searches could be compiled using monthly plans available for Some State criminal history re- runners or through databases. Ex- high-volume users. 67 amples, current as of January positories are authorized to make 2004, include: • Rapsheet.com’s searches for their criminal history records consumers range from $29.95 available to the public at large or • YourOwnPrivateEye.com for a search of its entire 160- to certain authorized users, such charges $295 for a “nation- million record “National as schools, nursing homes, etc. wide” criminal search and Criminal Index,” $14 for a According to a 2001 SEARCH $45 for a “comprehensive regional search, $10 for a sin- survey, fees charged by the re- statewide criminal check,” the gle-State search, and $5 for a positories ranged from $2 to $49, results of which are e-mailed search of more than 30 sex- depending upon the requester and to the purchaser “within 24 68 whether the check is a name-plus- 63 offender registries. Busi- hours.” nesses, which pay a $14.95 identifier check or a fingerprint- • US Search, a First Advantage monthly fee, pay $19.95 for a based check. Many States waive Corporation, advertises on “National Criminal Index” or reduce background check fees television and sells reports via search, $8 for a regional for nonprofit organizations that the Internet and a toll-free search, $6 for a State search, deal with vulnerable populations number. US Search’s charges and $3 for the sex-offender such as children, the disabled, and 69 72 for statewide criminal checks registry search. the elderly. range from $59.95, depending • ChoicePoint charges $25 for a In Florida, for example, a State upon the State. Onsite county pre-employment search of its court checks cost $29.95 per name-plus-identifier check avail- 90-million record National able to the general public and county. Results are returned Criminal File and $5 for a in 7–10 days.64 conducted through the Florida State criminal database search Department of Law Enforcement • CheckMate bills itself as the through its ScreenNow.com 70 costs $23, while a national, fin- “original online background Internet site. Sex-offender gerprint-based check for author- service designed especially ized users costs $36 for volunteer 65 for dating singles.” Check- 66CheckMate, “Background mate’s criminal checks range Checks,” available at in cost from $25 to $29 per (visited Jan. 20, 2004). jurisdiction for county, State, prices.htm> (visited Jan. 20, 2004). 71 67BackgroundChecks.com, “Pric- ChoicePoint, “State-Specific ing,” available at Background Screening Packages,” 63YourOwnPrivateEye.com, (vis- available at “Criminal Records,” available at ited Jan. 20, 2004). (visited Jan. 20, (visited Jan. 20, 2004). Rapsheets.com, “Pricing,” avail- 2004). able at 72 64US Search, “Consumer Services,” /pricing.asp> (visited Jan. 20, 2004). (visited Jan. 20, 2004). their criminal history record” (Mar. 69Ibid. 27, 2001) at p. 1, available at 65 See 70 . Hereafter, (visited Jan. 20, 2004). ChoicePoint, “Pricing,” available SEARCH repository survey. at

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organizations and $47 for most when it comes to the identity other requestors.73 In Oklahoma, of a person.75 name-plus-identifier checks can be obtained through the Oklahoma The interrelation of these “other Bureau of Investigation for $15 factors” is illustrated by the fol- and fingerprint checks can be ob- lowing diagram (figure 1).76 tained for $19.74

6. Identification/Record Figure 1: The concept of identity contains multiple layers matching a. Establishing identity Identifiers Identity is more than name alone. As the National Electronic Com- Secondary Identifying Documents merce Coordinating Council has explained in the course of its e- commerce work: Primary Identifying Documents Clearly, the concept of iden- Identifying Characteristics tity is far broader than the content of a name. While names and naming protocols are a critical element of identity, in that they give us the means to call out one identified individual from another, the underlying relevance, role, context, and meaning attributed to a given named person can only be gleaned by reference to other factors. Entity The full measure of identity of an individual is a subtle and multifaceted complexity. This is because people exist in many social, economic, political, cultural, and other dimensions all at once. In short, one size does not fit all

75 Identity Management: A White 73See Paper (Lexington, Ky.: National Elec- (visited Jan. 20, 2004). cil) presented at the NECCC Annual 74 Conference, Dec. 4–6, 2002, New See Oklahoma State Bureau of In- York, NY, at p. 27. Available at vestigation, “Frequently Asked Ques- (visited June 28, History Record Check Cost?,” avail- 2004). able at 76Ibid., at p. 43 (Appendix A: Glos- (visited Jan. 20, 2004). sary of Terms, by Ed Fraga).

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At the core is the entity, which, in State or a person with whom the be the case with a driver’s license the criminal justice context, is the individual does not have a per- number, Social Security number, individual who is interacting with sonal relationship seeks to match a date of birth, etc.). A consumer, the criminal justice system. At the claimed identity with the individ- for example, might be asked ques- outer edge of the spectrum are ual, they often rely upon primary tions about the amount, size, or identifiers—such as names, num- or secondary identifying docu- holder of his or her mortgage, the bers, and titles—that can be as- ments to “verify” identity and link amount paid for his or her home, serted and readily claimed and the identity to the individual. or other such information.79 changed by individuals.77 In between, are various means of link- Identity verification (also referred Another company, ID Analytics of ing identifiers with an entity. to as “identity authentication”) has San Diego, has developed a pat- Moving from the core to the outer become increasingly important tern-recognition technology de- edge, each successive level be- over the past several years in light signed to assess “the legitimacy of comes less integrally associated of the rise of identity theft and identity information provided by with the individual. Identifying concerns about terrorism. These individuals to find signs of characteristics—such as finger- concerns have prompted both fraud.”80 The product, Graph prints, other biometrics, or other governments and the private sec- Theoretic Anomaly Detection, is unique characteristics associated tor to seek ways to improve iden- an algorithm that seeks to “detect with an entity—are most closely tification documents and unusual patterns based on the linked to the entity. Primary iden- otherwise authenticate that an identity elements on an applica- tifying documents “link an identi- individual is (or is not) who he or tion.”81 The algorithm was devel- fier with an entity often by she claims to be through biometric oped based on an analysis of association with an identifying or other means. information from 200 million ap- characteristic such as a finger- plications for products and serv- print.”78 Secondary identifying The effort to curb identity theft ices from 13 companies, including documents reference identifiers has produced conflicting strategies credit card issuers, online retail- without relying on an identifying regarding the use and availability ers, and wireless telephone service characteristic. of personal information. Since providers. Once the algorithm has personal information, such as the been applied to an application, a Identifying characteristics are a Social Security number, can facili- score is produced signifying the valuable means of linking identi- tate identity theft, one approach risk of identity fraud.82 fiers to an individual because they has been to try to curtail access to are uniquely linked to the individ- this information (by excluding it ual. The value of identifying char- from public records, for example). acteristics as a means of Conversely, a number of private- determining identity is, however, sector initiatives have resulted in only as strong as the enrollment identity authentication products 79Chris Costanzo, “Special Report: process used to associate identifi- that rely on more personal infor- Retail Delivery, Using Technology to ers with an identifying character- mation and/or sophisticated mod- Thwart Identity Thieves” American istic and the individual. When the eling tools in an effort to curb Banker Online (Nov. 18, 2003) avail- identity theft. able at (visited Individuals can claim various Some companies have created identities (aliases). The term “alias” Apr. 2, 2004). Hereafter, Costanzo identity authentication products often has a negative connotation be- article. cause it is frequently used in the con- that rely on so-called “out-of- 80 wallet” data to authenticate some- ID Analytics, “AMS and ID Ana- text of an individual who has asserted lytics to Help Government Clients multiple identities for the purposes of one’s identity. The information Fight Fraud” (Dec. 15, 2003) avail- deception or evasion for illicit pur- has been dubbed “out-of-wallet” able at poses. It is important to note, how- data because it relies on informa- (visited Apr. identities in the course of their every- 2, 2004). day lives. See, for example, ibid., at p. the actual consumer to whom it 36. pertains, but would not typically 81Ibid. be known to a criminal who stole 78Ibid., at p. 43. 82Costanzo article, supra note 79. the individual’s wallet (as could

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b. Identity in the criminal concerns, or concerns that the because the two actually share justice context individual whose background is to certain identifiers or because of Not surprisingly, individuals do be checked would object to pro- identity theft). not always provide law enforce- viding the prints. ment with correct identifiers when In Minnesota, for example, a they interact with law enforce- As a result of the foregoing fac- woman filed suit against the State ment (sometimes relying upon tors, commercial vendors (and Bureau of Criminal Apprehension falsified or fraudulently obtained State repositories in some in- (BCA) for failing to remove her primary or secondary identifica- stances) customarily conduct name from a conviction record tion documents). The criminal name-plus-identifier checks that resulted from an identity history repositories address this (sometimes referred to simply as thief’s use of her name as an 84 problem by organizing their re- “name checks”). The term “name- alias. The innocent woman had cords around an identifying char- plus-identifier check” is shorthand an apartment rental application acteristic such as the fingerprint. for a check that does not base declined on the basis of her pur- 85 The repository’s criminal history identification on fingerprints or ported criminal record. The record therefore stands for the other biometrics, but instead relies BCA used a fingerprint test to proposition that an entity (indi- on an individual’s name, as well confirm that the woman was not vidual) with this identifying char- as other descriptors, such as date the person arrested for the crime, acteristic (fingerprint) interacted of birth, current and former ad- but refused to remove the infor- with the criminal justice system dresses, Social Security number, mation, contending that it must with respect to the listed offenses. places of employment, or other keep the information on file in The criminal history record also facts. case the identity thief attempts to includes any identifiers asserted use the alias again. According to by the individual, including what- When a name-plus-identifier the woman, the BCA gave an un- ever name(s) the individual has check is conducted, there is a pos- signed letter to her, which she claimed. sibility that a background check of could present to potential land- an individual with a criminal his- lords or employers, stating that no Fingerprints have not been associ- tory will produce no results be- convictions could be found based ated with every record generated cause the individual is asserting a on a search of her name, date of 86 by the criminal justice system, stolen or fabricated identity (a birth, and fingerprints. In an- 83 however. Customarily, fingerprint “false negative”). It is also pos- other instance, a law school checks have been time-consuming sible that a check of an innocent graduate was handcuffed and and expensive. In addition, fin- person’s background will produce jailed in San Diego when she gerprints are not always included a false positive because some or showed up for her first day on the with records, because individuals all of his or her identifiers match job because a “background check are not fingerprinted for all of- the identifiers used by the individ- had uncovered a warrant for her fenses. In addition, most court and ual who actually interacted with arrest for possession of marijuana, corrections records do not carry the criminal justice system (either but the actual fugitive was a thief the individual’s fingerprints, in- who had stolen her wallet and 87 stead referencing the individual by assumed her identity.” 83Commercial vendors have devel- name and perhaps other descrip- oped a variety of products designed to tors, such as date of birth, address, detect false identities, such as prod- 84 Social Security number, or physi- ucts designed to validate Social Secu- Hannah Allam, “St. Paul Victim cal description. Furthermore, in rity numbers. Also, it is important to of ID theft sues BCA,” St. Paul the commercial-vendor context, note that false negatives can occur (Minn.) Pioneer Press (Mar. 23, 2002). Hereafter, Allam article. fingerprint-based checks are usu- (even in fingerprint-supported situations) as a result of other factors. For 85It is unclear from media reports ally unavailable due to a lack of example, a false negative may occur if access to repository records. Addi- whether the landlord conducted the a prior interaction with the justice background check in question through tional reasons that commercial system occurred in a jurisdiction not a commercial vendor or went to the covered by the background check or if fingerprint-based screening efforts BCA directly. have lagged are resistance to fin- the offenses that occurred are not 86 gerprinting by end-users as a re- included in the records systems that Allam article, supra note 84. are searched during the background 87 sult of cost concerns, time investigation. Eve Tahmincioglu, “Tense Em- ployers Step up Background Checks,”

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c. Vendor practices with before it is returned to the party the FBI. There are signs, however, respect to name-plus- that ordered the report.89 that this may be changing. identifier checks ChoicePoint’s “Employee and When conducting a name-plus- As noted previously, commercial Applicant Fingerprint Solution” identifier check for criminal back- vendors are developing new prod- (EAFS), for example, “helps or- ground check purposes, industry ucts designed to rely upon nontra- ganizations collect, authenticate, practices vary with respect to what ditional identifiers and behavior and transmit personal and biomet- 91 information about the record sub- patterns to authenticate that an ric data more efficiently.” The ject either may or must be sup- individual is the person claimed. application can be integrated with plied in order to run the check. The utility of these new products livescan devices or a personal for purposes of validating the computer coupled with an FBI- Commercial vendors seek to re- criminal justice information ob- approved desktop scanner. In ad- duce the possibility that a false tained from court records or other dition to facilitating the transfer of positive will be produced as a public sources is potentially lim- biometric information to the rele- result of a name-plus-identifier ited, however, because these re- vant Federal or State agency, check by relying on multiple iden- cords may include only a minimal ChoicePoint also “verifies the tifiers to match a background amount of personal information identity of the people you finger- check subject with criminal justice about the individual that could be print prior to the submission of the record information. For example, used for purposes of matching a fingerprints to Federal or State 92 as ChoicePoint informed the Task particular person with the record. agencies.” In addition, Choice- Force: Point offers customers the oppor- d. Vendors and fingerprint- tunity to search its National ChoicePoint has Standard based checks Criminal File prior to submitting Operating Procedures re- Customarily, end-users who order the fingerprints to State or Federal garding the reporting of criminal background checks for agencies.93 criminal activity [in its in- pre-employment or residential formation products]. There housing screening as part of their In another sign that the traditional must be a minimum of two due diligence rely almost exclu- lack of involvement by commer- identifiers in order to report sively on name-plus-identifier cial vendors may end, the Com- the record information. searches.90 The principal excep- pact Council—established by the These identifiers are most tion consists of end-users who are National Crime Prevention and commonly the name, date of authorized or required to conduct Privacy Compact of 1998 to set birth, and the Social Security fingerprint-based checks through rules, procedures, and standards Number. Additional identifi- the State repository system or the for fingerprint-based, noncriminal cation information can in- FBI. justice criminal history checks— clude a driver’s license issued a notice in the Federal number or a residential ad- Traditionally, commercial vendors Register of its intent to issue a rule dress. A physical description have not been able to play a sig- allowing the outsourcing of ad- can assist in eliminating nificant role when end-users, prin- ministrative functions pertaining false positives when State cipally employers, are willing and to background checks for author- and county repositories pro- 88 statutorily able to run fingerprint- ized noncriminal justice pur- vide that information. supported background checks poses.94 In its notice, the Compact through the State repositories or ChoicePoint uses two internal 91 groups to review the information ChoicePoint, “Employee and Ap- 89Ibid. plicant Fingerprinting Solution,” 90 available at Robert W. Holloran, et. al., Stan- (visited Directory (Ocala, Fla: National Back- Apr. 2, 2004). ground Data, July 21, 2001) available New York Times (Oct. 3, 2001) avail- 92 at Ibid. able at . Hereaf- ter, Tahmincioglu article. . (Visited June 28, 9468 Federal Register 9098 (Feb. note 50. 2004). 27, 2003).

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Council cited the escalating de- common during the hiring proc- State repositories or the FBI— mand for fingerprint-based crimi- ess. Investigation or reinvestiga- employers still may use a com- nal history record checks for tion of current employees also mercial vendor to conduct a less noncriminal justice purposes and a may occur, however, particularly expensive “pre-check.” If dis- resulting increase in workload for where there is a need to qualifying results are returned, the government agencies and non- (re)validate security clearances or candidate may be eliminated from profits as the principal reason for when there is a promotion, new consideration without a lengthy or the change.95 Such a rule change assignment, potential misconduct, more expensive check through the could further encourage the pri- or other important event. State repository or the FBI. vate sector to develop the infra- structure necessary for the This is particularly true of em- In addition, some employers eligi- processing of fingerprint-based ployees who come into contact ble to conduct checks through the criminal checks. with children, the elderly, or other State repositories or the FBI use vulnerable populations. Even commercial vendors to supple- D. End-uses of criminal Santa and his elves are subjected ment the information provided in justice record to criminal background checks those reports by having the ven- information obtained (and drug tests). According to an dors conduct checks of the records official with Santa Plus, a division at local courthouses. from commercial of Eastman Kodak that places vendors shopping mall Santas, conducting 2. Volunteer screening criminal background checks is “Hard” statistics are unavailable, routine. One commercial vendor Over the past 10 to 15 years, vol- but it is the sense of the Task found that about 70 of 1,000 shop- unteer organizations have begun Force that the overwhelming ma- ping mall Santa and Santa’s to order many more background jority of criminal background Helper applicants had committed checks of their volunteers. This is checks that commercial vendors crimes in the past 7 years, includ- particularly true of volunteers who conduct are for purposes of em- ing indecent exposure, solicitation come into contact with children, ployee, volunteer, and tenant of prostitution, and drunk driv- the elderly, or other vulnerable screening. It is the further sense of ing.96 populations. The National Child the Task Force that media inquir- Protection Act of 1993 and nu- ies constitute a significant portion There are numerous reasons for merous State laws have authorized of the remainder. The remainder using a commercial vendor for the use of the FBI and State re- of the criminal background check employment screening. In some positories to conduct checks for market is small, but there are cases, it is simply a matter of con- many of these positions. Volun- many other purposes for which venience, because the employer teer organizations, however, fre- criminal justice information is lacks the time or the know-how to quently rely on private vendors to obtained from commercial ven- obtain the relevant information conduct these checks because of dors, ranging from fraud investi- directly from a court or other gov- cost concerns and time considera- gations to idle curiosity. ernment source. In other cases, the tions. The Boy Scouts, for exam- position for which the employer is ple, has hired ChoicePoint to 1. Employment screening conducting a criminal background conduct criminal checks on all of its new volunteers.97 According to Thirty or 35 years ago, employ- check is not one for which access a Boy Scouts spokesman, the re- ment background checks were to State repository information is quirement, at least initially, would relatively rare, typically limited to authorized by law. apply only to new adult volun- high-ranking or particularly sensi- teers, not the 1.2 million existing tive positions. Today, however, In some cases, even if a finger- volunteers.98 amid concerns about issues rang- print-based check is legally re- ing from terrorism to child abuse, quired—effectively assuring that employment background checks the check is processed through the are far more common. Employ- 97 Ira Dreyfuss, “Boy Scouts plan ment background checks are most 96 checks for future volunteers,” Boston Associated Press, “Santas Un- Globe (Nov. 28, 2002). dergo Background Checks,” AP On- 95Ibid. line (Nov. 25, 2002). 98Ibid.

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While the Boy Scout program is 4. Media of this potential market is the designed to apply, at least ini- monitoring of criminal activity in tially, only to new rather than ex- It is a longstanding custom of me- the United States by visa holders. isting volunteers, the ability to dia outlets to obtain criminal jus- Another aspect is determining “recheck” volunteers at periodic tice information directly from the whether immigrants have commit- intervals is an important consid- courts, police blotters, and other ted offenses that merit their eration for volunteer organiza- sources in the course of reporting deportation from the United tions, particularly those that have on recent arrests, ongoing trials, States. volunteers who interact with vul- criminal appeals, pardons, and nerable populations. paroles. Many newspapers, of course, establish and use “news migration status information on over 3. Tenant screening morgues,” which are manual (and, 60 million records. more recently, automated) crimi- “The SAVE program enables Fed- Landlords, particularly large nal justice information systems. eral, state, and local government property management companies, Today, media outlets may also use agencies to obtain immigration status routinely order criminal back- commercial vendors to obtain information they need in order to ground checks on potential ten- criminal justice information about determine applicant’s/recipient’s eligibility for many public benefits.” ants. For certain Federal housing individuals who are the subject of U.S. Immigration and Customs En- programs, background checks are news stories. forcement, “Immigration,” available required to qualify or retain at (visited June 28, 2004). checks In addition, the SAVE program has The amount and extent of criminal launched pilot programs in several States to “enable employers quickly justice record information that can Some commercial vendors see and easily to verify the work authori- immigration-related checks about be relied upon by the rental hous- zation of their newly hired employing industry varies widely by loca- foreign nationals as an especially ees.” The basic pilot program, which 101 tion, based on variations in local promising market. One aspect is being conducting by the BCIS and housing nondiscrimination laws, the Social Security Administration (SSA) in the States of California, which can affect the extent to which a landlord can refuse to rent Florida, Illinois, Nebraska, New York, ever been convicted of a felony, the and Texas, allows employers to con- to someone merely because of a date of the felony conviction, and a 100 duct verification checks of SSA and criminal record. “narrative description of the felony BCIS databases for all newly hired conviction.” MITS, “Apartment In- employees, regardless of citizenship. dustry Data Standard Initiative Re- A second pilot program, the Citizen leases Version 1.0,” Press Release Attestation Pilot, is being conducted 99See, for example, 66 Federal Reg- (Nov. 25, 2002) available at by BCIS alone in Arizona, Maryland, ister 28776 (May 24, 2001) (Depart- (visited June ginia. Development regulations mandating 28, 2004); MITS, “Data Element Dic- Both pilot programs are free to em- criminal background checks for cer- tionary” (undated) available in the ployers, who must execute a memo- tain public housing residents). “Current Specifications” section at randum of understanding that lays out 100 . restrictions on the ability of employ- Allowing for variations as to ers to use and disclose the informa- 101The private sector, particularly what is legally permitted, the rental- tion. Use of the system, for example, housing industry appears to view employers, is also interested in infor- is limited to newly hired employees; it felony information as being of pri- mation about immigration status be- is not to be used as a prescreening tool mary importance in tenant screening. cause of the implications of or as a means of checking the status of A collective effort by the apartment immigration status for eligibility for existing employees. U.S. Citizenship industry to create shared data stan- employment and government benefits. and Immigration Services, “SAVE dards, for example, has resulted in the The Bureau of Citizenship and Immi- Program,” available at development of a standard for tenant gration Services (BCIS) has devel- (visited June 28, 2004). ing Council’s Multifamily Informa- certain immigration status informa- Commercial vendors can act as tion and Transactions Standards tion. The Bureau’s Systematic Alien authorized agents of employers for the (MITS) project. The voluntary stan- Verification for Entitlements (SAVE) purpose of participating in this pro- dard includes fields for the entry of program facilitates access to the Bu- gram, thereby facilitating employer felony information about applicants, reau’s Alien Status Verification Index participation in the program. including whether the applicant has (ASVI), which contains selected im-

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6. Fraud investigation or a prospective business partner. In and drug and alcohol counsel- prevention some instances, entities in highly ors.104 Customarily, this niche regulated industries, such as the market is occupied primarily by Insurers and many others in the gaming industry, must conduct local, rather than national, com- private sector use criminal justice criminal background checks on mercial vendors. information as a part of fraud in- prospective vendors and business vestigations or prevention activi- partners because doing business 11. Accountability ties. An insurer, for example, may with a vendor with a criminal re- obtain criminal justice information cord could impact their licensing In some cases, individuals order in the course of reviewing a claim status. Criminal justice informa- criminal background checks to to determine whether a claimant tion is also relevant in other busi- confirm that government or pri- has a history of fraud that may ness relationships, including vate-sector employees have been merit a closer look at the claim. In efforts by financial institutions vetted properly, particularly those some cases, the criminal justice and other businesses to “know” who deal with children. Parents record information may be inci- their customers. may seek a background check on dental to the investigative use. a school bus driver or daycare Insurers, for example, may use 9. Prenuptial analysis worker because they are interested criminal driving record informa- in knowing whether the school tion to identify drivers in a house- In an increasingly “risk-averse” district or daycare center did a hold who have not been listed on world, some individuals even or- good job of vetting the employee. automobile insurance applications. der criminal background checks Similarly, public interest groups on dating partners or prospective may order a criminal background 7. Licensing spouses. As the president of one check on political appointees to commercial vendor said when ensure that they are eligible or In a variety of circumstances, describing his company’s offer- otherwise suitable to hold the po- criminal background checks are ings, “[Our] service is a tool not sition to which they are being ap- required for business, profes- only for corporate users … If your pointed. sional, and occupational licensing daughter was going on a date with purposes. These checks are usu- someone for the first time, there is 12. Litigation research ally conducted through State no reason you can’t check the guy criminal history repositories or the out.”102 In fact, some online ven- Lawyers may conduct criminal FBI rather than commercial vendors specialize in this market. One background checks on parties to dors, although State licensing Texas company, CheckMate, bills litigation, prospective witnesses, boards may conduct background itself as the “original online back- or prospective jurors in order to checks through commercial ven- ground service designed espe- assess the credibility and suitabil- dors in some instances. cially for dating singles.”103 ity of individuals.

In addition, in some cases where 10. Marketing State or Federal licensing is prerequisite for employment in a par- In some cases, criminal justice ticular profession, an employer information, particularly name 104These types of service providers may elect to conduct a “pre- and address information associ- were all customers of United Report- check” of an applicant through a ated with recent arrests, is used to ing Inc., a commercial vendor that obtained recent arrest information commercial vendor before submit- market services related to the from police departments, such as the ting the application to the licens- criminal justice system, such as Los Angeles Police Department. In ing agency. bail bond services, attorneys, driv- 1996, when California changed its law ing schools, religious counselors, prohibiting commercial access to this 8. Due diligence arrest data, United Reporting challenged the statute on first amendment Due diligence investigations in 102Walker article, supra note 27 grounds. United Reporting ultimately lost its case when the Supreme Court mergers, acquisitions, and other (quoting Peter Schutt, President of Rapsheets.com). upheld the statute in a 7-2 decision. commercial transactions often Los Angeles Police Dept. v. United prompt criminal background 103See Reporting Publishing Corp., 528 US checks of officers or employees of (visited Jan. 20, 2004). 32 (1999).

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13. Opposition research Eventually, it is expected that the predict that commercial vendors program will be run by the airlines must, and will, play a key role in Political campaigns use criminal or other private companies. There trusted traveler programs, in gen- justice records to identify the po- are several core elements to the eral, and criminal history record tential vulnerabilities of their can- trusted traveler program: searches, in particular. didates, as well as the potential vulnerabilities of their political • Participation in the program will be voluntary. E. Sources of criminal opponents. justice record • The first step in enrolling in 14. Voter eligibility information for the trusted traveler program commercial vendors will be a relatively rigorous Customarily, a felony conviction process of identification veri- makes an individual ineligible to Criminal justice record informa- fication. vote. Election officials may rely tion “originates” from law en- on private companies to verify the • Once enrolled, trusted travel- forcement agencies, the courts, eligibility of individuals on its ers will provide a biometric corrections agencies, and prosecu- voting roles. (most likely, a fingerprint) tors. State criminal history reposi- that will be maintained in a tories and the FBI’s National 15. Curiosity database and used to compare Crime Information Center (NCIC) with the “live” biometric to are, technically, secondary In some instances, criminal back- make positive identification. sources. Which sources a particu- ground checks are ordered by in- lar commercial vendor relies dividuals who are simply curious • A criminal history back- upon, however, vary by State be- about their friends, neighbors, or ground check will be a re- cause State law customarily does relatives. quired condition of not allow noncriminal justice us- enrollment. ers to have access to all informa- 16. Registered traveler • A check against various “no- tion sources for all purposes. In programs fly,” “selectee” and other many States, commercial vendor watch lists will also be a re- access to information maintained In the wake of the September 11 quired element. by the State criminal history re- terrorist attacks, air travel has pository customarily has been changed. Today, Americans are • Participation in the trusted restricted. As a result, information subject to new identification and traveler program will require is often obtained from courts and search procedures at every com- periodic updates of the crimi- corrections agencies. The mix of mercial airport. While these pro- nal history check and the data sources used by a commercial cedures are necessary—and, “watch list” check. vendor may vary over time as new indeed, research shows that they sources of data (particularly bulk are widely supported by the The hope is that trusted traveler data) become available. American public—they are also programs will not only contribute inconvenient, time consuming for to security, but will also make for Which sources a particular vendor the public, and expensive for tax- a faster and more convenient trip relies upon may also vary, de- payers. through airport security lines. If pending upon the vendor’s busi- the trusted traveler programs ness model. For example, if a As one part of an effort to meet prove to be popular, it is certainly particular court or agency does not these concerns, Congress has conceivable that over 100 million make its information available in authorized the Transportation Se- adult Americans will participate. bulk, its records are apt to be re- curity Administration (TSA) to This means 100 million criminal lied upon by only those vendors develop a trusted traveler pro- history record searches will be with the capability to provide tra- gram. TSA is currently conducting requested, not even counting peri- ditional reports. pilot tests of trusted traveler odic updates. The trusted traveler model programs at several air- programs could well be a catalyst Even if records are available from ports. for the most dramatic and imme- a court or agency, the cost of the diate surge in the number of records may be prohibitively high. criminal history record checks in In some cases, for instance, bulk the Nation’s history. Many experts

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purchase of repository data is not reported over 100,000 criminal unified State court administrative cost-effective. In Florida, for ex- filings, collectively accounting for office. In others, the administra- ample, no bulk discount for re- three-fourths of the total general tive office plays a very minor role pository data exists.105 Therefore, jurisdiction criminal filings.”108 in court operations.”112 The opera- for a commercial vendor to pur- California reported the most fil- tion of a highly centralized urban chase the roughly 13 million re- ings, with 742,582, while Alaska court may be significantly differ- cords held by the Florida reported the fewest, with 3,337.109 ent than operations of a small ru- Department of Law Enforcement ral court in a State with a (FDLE), the vendor would need to The structure of State court sys- decentralized court system. Even pay the State’s standard $23-per- tems is not uniform nationwide, in States that have more central- search charge.106 and this very much impacts the ized court systems, not all infor- manner in which commercial ven- mation is necessarily reported 1. The courts dors may obtain court data, par- centrally, making it necessary in ticularly bulk data. State court many cases for a vendor to seek The primary source of criminal systems are large and diverse, information from numerous local justice information for commer- with more than 16,200 State trial courts. Many commercial vendors cial vendors is the court system. courts, including more than offer to conduct criminal back- During 2001, more than 14 mil- 13,600 courts of limited jurisdic- ground checks at the county level lion criminal cases were filed in tion (authorized to hear only cer- for any county in the country.113 State trial courts and nearly tain types of cases) and more than 63,000 in the Federal district 2,500 courts of general jurisdic- Variations in the structure of State 107 courts. “Fifteen States each tion.110 Thirteen States have court systems can also have an adopted a unified trial court struc- impact on the types of offenses ture, meaning that courts are con- that are considered criminal fil- solidated into a single general- ings. “For example, criminal fil- 105Florida has made a fiscal decision not to provide a bulk data discount jurisdiction court level with juris- ings in Connecticut, Illinois, and since the State uses the revenue gen- diction over all cases and proce- Minnesota include ordinance vio- erated by noncriminal justice back- dures.111 The remaining 37 States lation cases, which are typically ground checks to pay for the retain nonunified trial court sys- reported in traffic caseloads in maintenance and operation of its tems featuring a sometimes baf- other states.”114 criminal history database and to facili- fling array of courts of general tate access for public safety purposes. and limited jurisdiction. Variations in automation levels 106Florida Department of Law En- also have a dramatic impact on forcement, “Obtaining Criminal His- As the June 1999 report of the commercial vendors. While the tory Information,” available at National Task Force on Court courts have made considerable (visited June 28, 2004). Hereafter, Automation and Integration noted, progress over the past few years in FDLE site. Even without bulk data the organizational and funding automating their records, not all sales, FDLE conducts more than 1 structures of State courts are also million checks a year, with commer- widely varied. “In some states, all 112 cial vendors being the largest re- court staff works for a centralized Report of the National Task questor of data. SEARCH, Report of Force on Court Automation and Inte- the National Task Force on Privacy, gration (Washington, D.C.: U.S. De- Technology, and Criminal Justice partment of Justice, Bureau of Justice Information, Privacy, Technology, National Center for State Courts, Assistance, 1999) at p. 9 (internal and Criminal Justice Information 2003) at pp. 10, 13. citations omitted). Available at series, NCJ 187669 (Washington, DC: 108Ibid., at p. 56. (visited June 28, 2004). 109Ibid., at p. 57. Justice Statistics, August 2001) at p. 113See, for example, NBD Criminal 21. Available at 110Brian J. Ostrom and Neal B. Record Searches, supra note 48. (visited June 28, 2004). Courts, 1996: A National Perspective Brian Ostrom, et al., Examining Hereafter, Privacy Task Force report. the Work of State Courts, 2001: A from the Court Statistics Project (Wil- National Perspective from the Court 107Brian Ostrom, et al, Examining liamsburg, Va.: National Center for State Courts, 1997) at p. 12. Statistics Project (Williamsburg, Va.: the Work of State Courts, 2002: A National Center for State Courts, National Perspective from the Court 111Ibid. 2001) at p. 60. Statistics Project (Williamsburg, Va.:

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court records have been auto- ing a means of obtaining statewide ees live in their neighborhood.”118 mated. data from one source. In addition The 21,000 parolees in the site’s to information on the more than database can be searched by ZIP Finally, the rules of each court can 1.4 million inmates under the ju- code, name, or prison identifica- impact the information available risdiction of Federal and State tion number. Once an individual’s to a commercial vendor and the adult correctional authorities117 record is found, the site provides amount of time and expense that (who are of little immediate inter- the parolee’s “picture, home ad- obtaining information from the est to commercial vendors be- dress, physical description, begin- court entails. In February 2003, cause they are unlikely to be ning and ending parole date, and the Superior Court of Santa Clara, applying for a job, rental housing, most serious offense.”119 The Calif., for example, ordered, for etc., while incarcerated), the in- State plans to update the database privacy reasons, that all dates of formation systems of corrections daily.120 The sponsor of the legis- birth be removed from the pub- departments typically include in- lation that created the site dis- licly available index for criminal formation about former inmates missed questions of whether the records and from all microfiche who have completed their term or program constituted an invasion sets sold to employers and screen- have been pardoned or paroled. of privacy: ing companies.115 As a result, “Technically, [the parolees] commercial vendors could no The Federal Government and haven’t served their time longer verify date of birth them- many States make corrections and …They’re still under state selves. Instead, they had to utilize parole information readily avail- supervision, and if he court personnel to do so (and the able to the public, including doesn’t want to live under court limited the number of daily through Internet Web sites. In this kind of condition, he can requests for date of birth verifica- March 2003, for example, Georgia stay in prison.”121 tion to 25 per company). The pol- unveiled an Internet site, nick- icy change was short-lived, named “Know thy Neighbor,” Today some commercial vendors however. The court reversed “that allows people to see if parol- obtain a significant amount of course, amid a flurry of com- their criminal justice information, plaints from commercial vendors, either in terms of number of re- and access to date-of-birth data cords or number of jurisdictions, was restored effective March 1, 117 Paige M. Harrison and Allen J. from corrections agencies. Ac- 2003.116 Beck, “Prisoners in 2002,” Bulletin cording to one Task Force mem- series, NCJ 200248 (Washington, ber, for example, while the mix of 2. Corrections D.C.: U.S. Department of Justice, records constantly changes, at one departments Bureau of Justice Statistics, July 2003, rev’d Aug. 27, 2003) at p. 1. point his company obtained more The total number of persons incarcer- While the courts customarily have than 60% of the criminal justice ated at the end of 2002 was 2,166,260. served as the main source of Of these, 1,361,258 were under the criminal justice information for jurisdiction of Federal and State adult 118Jerry Carnes, “Felon Next Door? commercial vendors, corrections correctional facilities (excluding State Check the Web,” WXIA TV Atlanta facilities in recent years have be- and Federal prisoners in local jails). (Mar. 13, 2003) transcript available at come an increasingly major Another 665,475 persons were incar- (visited nile facilities (as of October 2000), organization vary widely, but Apr. 5, 2004). Hereafter, Carnes and the remainder in territorial pris- newscast. State and Federal prison systems ons, jails in Indian country, Bureau of 119 are more uniformly (but not uni- Immigration and Customs Enforce- Ibid. versally) centralized, often provid- ment (formerly Immigration and 120“Georgia Online Database Identi- Naturalization Service) facilities, and fies and Traces Parolees,” Govern- military facilities. Ibid. An additional ment Technology (Mar. 14, 2003) 115BRB Publications, “The Public 753,141 persons were on parole at the available at Record Update, February 2003” (Feb. end of 2002. Lauren E. Glaze, “Proba- (visited Apr. 5, 2004). 2002,” Bulletin series, NCJ 201135 (visited June 28, 121 2004). (Washington, D.C.: U.S. Department Carnes newscast, supra note 118, of Justice, Bureau of Justice Statistics, quoting Georgia State senator Eric 116Ibid. August 2003) at p. 1. Johnson (R-Savannah).

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information in its databases from corrections departments de- responsibilities.126 Typically, the corrections sources, compared to termined that this was the repositories are charged under 35% from the courts. Similarly, as only information needed for State law with establishing com- of January 2004, Rapsheets.com’s corrections administration. As prehensive files of criminal his- National Criminal Index contained a result, information about tory records; establishing an records from 45 States and the convictions that gave rise to efficient and timely system for District of Columbia.122 Correc- prior incarcerations or lesser retrieving the records; ensuring tions department data, without offenses would not be avail- that the records are accurate and statewide court disposition data, able. up-to-date; and establishing rules was the source of information for and regulations governing the • Corrections data typically 18 States and the District of dissemination of records to crimi- report the release date and Columbia.123 Court dispositions, nal justice and noncriminal justice whether the individual was with or without sex offender users (State and Federal law also released on parole, but may registry data, were the source of establish such standards).127 In not include details about other information for 7 States, and both addition, State repositories are potential reasons for release, corrections and statewide court often responsible for maintaining such as an appellate reversal disposition data were sourced for fingerprint and other identification of the individual’s conviction. 13 States.124 Sex offender registry records. data was available from 36 States • Corrections data typically and the District of Columbia (and include information only The core mission of the reposito- was the sole source of data in 6 about individuals who actu- ries is to maintain comprehensive States).125 ally have come under the su- criminal history records, popularly pervision of the department of referred to as “rap sheets.” Crimi- Not surprisingly, information corrections and may not, nal history records typically con- available from corrections de- therefore, include information tain information identifying the partments varies by State. For about individuals who were subject of the record, including example: convicted of a crime, but only name and numeric identifiers, placed on probation or some such as Social Security number, • Data obtained from State de- alternative sentence. physical characteristics, and fin- partments of corrections may gerprints.128 Criminal history re- or may not include informa- • In some cases, it is possible cords also include information tion on persons incarcerated for commercial vendors to about the record subject’s current in county or municipal jails. obtain information about in- and past involvement with the dividuals currently incarcer- • In some States, corrections criminal justice system, including ated, but not historical data include only information arrests or other formal criminal information. In such cases, regarding the most serious of- charges and any dispositions re- some vendors may keep the fense for which the offender sulting from these arrests or information on file for future was most recently incarcer- charges.129 The repositories fre- use once the individual has ated because, in the course of quently limit their collection of been released. designing their systems, some criminal history information to felonies or serious misdemean- 3. State criminal history 122Rapsheets.com Web site at repositories (visited Jan. 20, State central repositories—now 126Robert R. Belair and Paul L. 2004). established in every State—are Woodard, Use and Management of 123 responsible for the collection, Criminal History Record Information: Ibid. For some of these States, A Comprehensive Report, NCJ Rapsheets.com did provide limited maintenance, and dissemination of 143501 (Washington, D.C.: U.S. De- non-statewide court data, for example, criminal history records. The State partment of Justice, Bureau of Justice from only a few counties. repositories are agencies or bu- Statistics, November 1993) at p. 19. 124 reaus within State governments, Ibid. In the final State, California, 127Ibid. only superior court records from four often housed within the State po- 128 counties were available. Ibid. lice or a cabinet-level agency with Ibid., at p. 22. 125Ibid. public safety and criminal justice 129Ibid.

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ors.130 Other types of criminal criminal justice requests received • In 30 States and the District justice information are seldom each year.134 of Columbia, repositories re- included in criminal history files, ceive final disposition infor- including “investigative informa- According to the Bureau of Justice mation from law enforcement tion,” “intelligence information,” Statistics, as of July 2001, State agencies. Eleven States rely traffic offenses, and certain other criminal history repositories “held only on the mail to receive petty offenses, all of which are approximately 63.6 million crimi- these dispositions, while 1 excluded from the definition of nal records on individuals. About State receives all dispositions “criminal history records” in Fed- 9 out of 10 of these records were electronically from law en- eral regulations governing feder- automated.”135 The number of forcement agencies. ally funded record systems.131 States that boast 100% automation • In 32 States, repositories re- of their criminal history records ceive disposition information Criminal history information is has been steadily increasing. As of from prosecutors. Half of reported to the State repositories July 1, 2001, for example, 23 these States receive the dispo- by courts and criminal justice States had fully automated crimi- sition information by mail agencies at every level of gov- nal history files, compared to only only, 4 States rely solely on ernment and at each stage in the 18 States in 1995.136 Another 13 electronic transmission, and criminal justice process (by police States and the District of Colum- the remaining 12 States rely departments, prosecutors’ offices, bia reported that “over 80% of on a combination of mail, fax, courts, and corrections agen- their criminal history records were and electronic transmission. cies).132 Indeed, many State and in automated form as of July 1, Federal statutes mandate that 2001.” Six States reported less • In 46 States, repositories re- courts and criminal justice agen- than 60% of their records were ceive disposition information cies report information to the cen- automated (figures vary from 28% from trial courts or the State tral repositories. While the to 59%).137 “Of those States that court administrator’s office. particulars of these requirements maintain partially automated In 15 States, this information vary, they are designed to ensure criminal history files, 22 have a is received only by mail, that record-originating agencies— policy to automate the offender’s while 31 States receive the in- such as prosecutors, courts, pa- entire record if an offender with a formation electronically. role, and corrections agencies— prior manual record is arrested. provide prompt and accurate data Four States and the District of State law largely regulates non- to the State repositories.133 Columbia automate only the new criminal justice access to informa- information on the record.”138 tion in the State repositories. Originally, the primary function of Repositories in 43 States and terri- the State repositories was to facili- State criminal history repositories tories responded to a March 2001 tate the maintenance and ex- receive disposition information SEARCH e-mail survey regarding change of criminal history from a variety of sources and by a the extent to which they disclose information within the criminal variety of methods:139 criminal history information to the justice community. Over the public (that is, to noncriminal jus- years, however, noncriminal justice users such as employers and 134 tice uses, particularly background See 68 Federal Register 9098 vendors).140 More than two-thirds (Feb. 27, 2003). checks for employment purposes, of the responding repositories have steadily and, in many cases, 135Bureau of Justice Statistics, “Im- reported disclosing at least some dramatically increased. In some proving Criminal History Records for criminal history information to the States, noncriminal justice re- Background Checks,” Highlights public. series, NCJ 192928 (Washington, quests now exceed the number of D.C.: U.S. Department of Justice, Bureau of Justice Statistics, Feb. 11, Information disclosed by the State 2002) at p. 1. repositories varies widely, depending upon State law. Some 130Ibid., at p. 23. 136Ibid., at p. 4. States disclose everything on file, 131Ibid. 137Ibid. 132 138 Ibid., at p. 26. Ibid. 140SEARCH repository survey, su- 133Ibid., at p. 28. 139Ibid., at p. 5. pra note 72.

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with the exception of sealed or the best possible single source of checks (LACs).142 Given the ex- expunged records, while others State criminal history information tensive criminal background disclose only adult offender con- for serious offenses (“minor” of- checks conducted by the military viction data that is less than 10 fenses, particularly those offenses for security clearances and related years old. Some States require the for which fingerprinting is not purposes, the study was designed submission of the subject’s fin- required, are not customarily re- to examine “the consistency of gerprints as a prerequisite for dis- ported to State repositories). The information available between closure, while others make State repositories create a central local, state, and national reposito- information available on the basis point of contact in a State where ries” of criminal history record of name-plus-identifier checks. various sources of data that may information, presumably to de- modify existing records can be termine whether the military could • Of the 29 repositories indicat- received and integrated into one replace LACs with centralized ing that “anyone” could ob- record. However, given that re- checks.143 The report sample tain criminal history pository information is either not comprised four States: California, information, 19 limited their always available or not cost- Florida, Pennsylvania, and Indi- disclosure to conviction in- effective, obtaining information ana. formation or conviction indirectly from the courts and cor- formation plus information on rections departments is by far the The report concluded that “the pending cases. The remaining prevalent industry practice. degree to which evidence of 10 States generally provide criminal conduct would be lost if all information, with the a. Repository data centralized repository checks were exception of sealed or purged The State repository records are used in lieu of LACs depended data. not always comprehensive, in both on the type of criminal con- • Fifteen repositories report some cases by design. State law duct and on the agency originating notifying the individual to varies with respect to which of- the arrest and/or conviction in- whom the records pertain fenses local agencies are required formation.”144 The report found: when a noncriminal justice to submit to the repository, with • For regularly fingerprinted user requests a copy of the re- minor offenses often omitted. In offenses, the State reposito- cord. addition, the State repositories ries and the FBI “together customarily receive only records • Fees charged by the reposito- identified approximately 70% pertaining to offenses where fin- ries ranged from $2 to $49, of offense information found gerprinting has occurred. There- depending upon the requester through LACs in California, fore, even if an offense is and whether the check is a 89% of the information found otherwise reportable, if police cite name-based check or a fin- through LACs in Florida, and and release an individual for an gerprint-based check. In 85% of the offenses identified offense, rather than taking the many States, fees are waived in Pennsylvania. The Indiana person in for fingerprinting, the or reduced for nonprofit or- state repository in combina- offense may not make it to the ganizations that deal with tion with the [Interstate Iden- State repository unless the indi- vulnerable populations such tification Index System (III)], vidual is later fingerprinted. Fur- as children, the disabled, and however, identified only 32% thermore, even where reporting to the elderly.141 the repository is required, that does not necessarily mean that a 142 4. Relative “value” of Kelly R. Buck and F. Michael local agency complies (or com- Reed, Reliability of Centralized data from repositories, plies expeditiously). Criminal Record Repository Checks courts, and in Lieu of Local Criminal Justice Agency Checks in Four U.S. States: corrections These points were highlighted in a departments California, Florida, Pennsylvania, December 2002 technical report and Indiana (Monterey, Ca.: Defense from the Defense Personnel Secu- Personnel Security Research Center, It is the sense of the Task Force rity Research Center December 2002). Hereafter, Buck and that State repositories represent (PERSEREC) on the reliability of Reed report. centralized criminal record reposi- 143 Ibid., at p. ix. 141 tory checks in lieu of local crimi- 144 Ibid. nal court and justice agency Ibid.

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of the offense information b. Court and corrections victed of misdemeanors or first- surfaced through LACs in data time felons who have been placed 145 that state.” Members of the Task Force re- on probation under local supervision… DOC databases usually • “For all types of offenses that ported that some vendors have include information about the cur- can be identified through found corrections data to be more rent status of offenders following LACs, the California reposi- accessible for bulk purchase than their release from incarceration; tory identified 43.3%, the court data, although it was the for example, their parole status Florida state repository iden- sense of the Task Force that court and when they were released from tified 61.2%, and the Penn- data increasingly are being made supervision.”150 sylvania state repository more readily available in bulk as identified 41.4%. Only 18.8% courts continue to automate their 148 “County court records usually of the offense information records. Court data often are include convictions, both misde- found through LACs in Indi- viewed as being more complete meanors and felonies, regardless ana could be identified via because the data include cases of the agency that supervises the checks of the Indiana state where the individual did not come offender following conviction. repository.”146 under correctional supervision (an important deficiency, given that However, the county court records do not include any information With respect to the reliability of nearly 4 million people were on 149 about the status of the offender LAC reporting, the PERSEREC probation at the end of 2001). following conviction. Of course, report recommended that the De- Where a traditional check is being county court records include the fense Department “take into ac- made, court data are more likely records for only that county. So if count the reliability of reporting to be used (along with repository an applicant lives in one county, by individual criminal justice data, if available). but commits a crime in another agencies to central repositories in county, a false report will be re- any decision to replace all LACs There are advantages and disad- turned if surrounding counties are with central state repository vantages to both statewide correc- not checked.”151 checks,” suggesting that each tions searches and county court agency would need to be evalu- searches. Corrections department ated independently to assess the databases “typically include only F. Factors in the reliability of its reporting to the felons who have been placed un- growing sale of repository.147 der the supervision of the DOC criminal justice [Department of Corrections]. information Commercial vendors that have While they include felons who have been convicted by courts by commercial found gaps in centralized checks vendors echo these findings. ChoicePoint, throughout the state, these records typically do not include records of for example, reports that it ran A number of factors are driving offenders who have been con- parallel criminal background the growth of the criminal justice checks for more than 8,000 em- 148 information sector of the commer- ployees of an airport in Texas. System limitations have tradi- cial information industry. Some of According to ChoicePoint, checks tionally acted as a type of de facto barrier to access to data, particularly these factors (such as the response on 186 of these employees re- with respect to bulk data requests to September 11) reflect increased turned adverse information that because a court or agency often could demand for criminal justice in- was not returned by checks con- decline to furnish the requested information for noncriminal justice ducted through the FBI. formation because it lacked the tech- purposes, generally, and have in- nical capacity to comply with the creased demands on courts and request. As courts (and agencies) have increasingly automated, however, this public agencies as well as the barrier is diminished. 150 149 National Background Data, “Fre- Lauren E. Glaze, “Probation and quently Asked Questions,” available Parole in the United States, 2001,” 145Ibid. at Bulletin series, NCJ 195669 (Wash- 146Ibid. ington, D.C.: U.S. Department of (visited Jan. 20, 2004). Justice, Bureau of Justice Statistics, 147Ibid., at p. x. August 2002) at p. 1. 151Ibid.

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commercial vendors. Other fac- however, would consume vastly November 2001, at least three tors, however, have helped enable more manpower and generate commercial vendors have the growth of commercial vendors vastly greater expense, making the launched such products. as an alternative to courts and economic viability of such private public agencies. systems (as opposed to traditional, b. The Internet “as-needed” searches) highly As the Privacy Task Force report 1. Automation of criminal questionable. noted, “perhaps the most impor- justice records tant technological development 2. Technology revolution underpinning the need for a reas- Automation of court and criminal sessment of the privacy landscape a. Computing power justice agency systems has been a [is] the Internet.”155 As with so major factor in the growth of the It is difficult to overstate the im- many other products and services, commercial vendor industry as a portance that advances in comput- the Internet provides a convenient, way to distribute criminal justice ing power have played in the low-cost means of advertising the information. While automation growth of the commercial infor- availability of criminal justice started in the late 1960s with the mation industry. As the National information products to a wide State repositories, in recent years, Task Force on Privacy, Technol- audience, coupled with an inex- the courts, as well as corrections ogy, and Criminal Justice Infor- pensive means of distribution. departments and other criminal mation noted in its report, Criminal justice information can justice agencies, have greatly ac- “[t]echnological advances have be ordered from home or office celerated their automation efforts. made computers smaller, faster, with a few lines of data entry and The Federal Government has pro- and capable of storing ever- a few clicks of the mouse. vided significant funding to assist increasing amounts of data in the States in automating their seemingly ever-decreasing The Internet also can affect the 153 criminal justice information sys- amounts of space.” In addition, reasons for which criminal justice tems. the Privacy Task Force report information is obtained. Those noted, advances in software and who “need to know” whether an Automation has made it signifi- computer programming have sup- individual has a criminal back- cantly faster and easier for com- ported “the creation of ‘data ground are likely to attempt to mercial vendors to obtain criminal warehouses’ where large amounts obtain the information even if it is justice information. Where it was of information are accumulated difficult and expensive to obtain. once necessary to review paper and available to be searched on For those who merely are curious indexes and updates, it is now the basis of a multitude of discrete and “want to know,” however, the 154 often possible to do quick elec- selection criteria.” Internet greatly facilitates (and tronic searches, which, because of encourages) access to information dial-up access and the Internet, Advances in computing power for which the browser would not can sometimes be conducted and information storage capabili- be inclined to make a trip to the without going to the courthouse. ties, coupled with the ability to courthouse. purchase criminal justice informa- Automation, coupled with the tion in bulk from numerous courts In addition, when coupled with willingness of most courts and and criminal justice agencies, the automation of criminal justice even some agencies to make their have allowed commercial vendors records and the increasing power automated data available in bulk, to create data warehouses that and decreasing cost of computers, has allowed commercial vendors permit their customers to conduct the Internet creates the potential to build private criminal justice a single search of criminal records for small vendors, who would information libraries containing that is virtually nationwide in otherwise be unable to hurdle bar- millions of criminal justice re- scope. As previously noted, since riers to entry or, at most, would be cords. Theoretically, it would be only local players, instead to be- possible to build such libraries white pages directory in the United 152 come national information provid- using paper records. To do so, States and Canada. ers. Rapsheets.com, for example, 153Privacy Task Force report, supra which, as previously noted, bills 152Acxiom, for example, creates its note 106, at p. 41. telephone directory products by hiring 154Ibid. 155Ibid., at p. 48. people to enter the content of every

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itself as having one of the largest Oklahoma has one of the information on the status and loca- criminal justice information data- largest initiatives in the nation of inmates incarcerated in a bases in the country, with more tion for providing court New York State Department of than 160 million records, had only docket information on the in- Correctional Services prison. In- 9 employees as of May 2002.156 ternet. Unlike most states, formation is also provided on The Internet also facilitates the Oklahoma is striving to former inmates…telling when and development of niche markets. A complete a statewide case why the inmate was released.”162 background company called tracking system and make CheckMate, for instance, caters to the information within that The database includes “everyone singles who want to learn more system available on a real sentenced to state prison since the about their current or prospective time basis via the internet. early 1970s … except youthful dating partners.157 The cost of this service is offenders and those who have had borne by the judicial system, their convictions set aside by a Use of the Internet to disseminate so there is no cost to the user court.”163 The database can be criminal justice information is not for obtaining court informa- searched with as little as a partial limited to commercial vendors. In tion from Oklahoma. Cur- last name. Information returned States where it is legally permissi- rently, information from 9 of about an offender may include: ble, State repositories, courts, and the largest counties in Okla- name; sex; full date of birth; de- corrections departments are mak- homa, as well as information partment identification number; ing criminal justice information from every appellate court in incarceration status; facility of available online, either for a fee or Oklahoma, is available via incarceration; race/ethnicity; dates at no charge. This trend is occur- this system. There is no time of commitment and release; latest ring despite the fact that in a 2000 delay...the information is release date and type; up to four opinion survey, sponsored by BJS available as soon as it is en- crimes that resulted in incarcera- and SEARCH, 90% of respon- tered by the court clerk.160 tion; aggregate sentence informa- dents opposed State agencies tion; and information pertaining to making criminal justice record Information from courts in other parole eligibility. information available on the In- Oklahoma counties is available ternet.158 through a separate system.161 The Federal Bureau of Prisons has These records are not updated in a similar site, but limits the infor- Courts, too, are putting more and real time, but are kept reasonably mation disclosed to name, regis- more records on the Internet. In current through frequent updates tration number, age, race, sex, Oklahoma, for example, the courts by most courts. projected or actual release date, put virtually everything online, and location in the Federal prison including nonconviction informa- Some State corrections depart- system.164 Searches can be con- tion, such as newly filed ments, as well as the Federal Bu- ducted by inmate identification charges.159 As Oklahoma’s courts reau of Prisons, also make number or first and last name.165 Web site states: information publicly available The Arkansas Department of Cor- over the Internet. In New York, rections not only facilitates for example, the State Department searches of its inmate database of Correctional Services provides using a variety of search criteria, it 156Walker article, supra note 27. an online look-up service that provides “interested parties with 162 157See . See “Inmate Lookup – General Instructions (Overview),” available at 158 SEARCH, Public Attitudes To- (visited Jan.20, mation, Privacy, Technology, and simply by county. 2004). Criminal Justice Information series, 160 Oklahoma State Courts Network, 163“Who’s Listed Here?,” at ibid. NCJ 187663 (Washington, D.C.: U.S. “Dockets of Oklahoma Courts,” Department of Justice, Bureau of available at 164Federal Bureau of Prisons, “In- Justice Statistics, 2001) at p. 45. . Web site /start.asp?viewType=DOCKETS> (visited Jan. 20, visitors may search the daily dockets (visited Jan. 20, 2004). 2004). of State district courts by judge, the 161See . 165 Ibid. type of case before each judge, event,

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permits visitors to download its position of trust involving money, “good practice” guidelines rec- inmate database free of charge.166 secure areas, or vulnerable popu- ommending that food establish- lations involving children, the ment operators conduct criminal In some States, repositories are disabled, and the elderly. There is background checks on all employ- also making information available reason to believe that criminal ees.174 In another example, the online. In Washington, for exam- background checks were on the National Task Force on Court ple, the Washington State Patrol increase even before September Automation and Integration, in a Identification and Criminal His- 11. Surveys by one background November 2001 draft report fo- tory Section has established a screening company, for example, cusing on post-September 11 Web site “as the official Internet “suggest that 64 percent of U.S. court system information technol- source providing criminal history businesses did some type of ogy priorities, recommended that conviction information for the criminal record check the courts “determine the feasibil- state of Washington.”167 The data- on…employees [in 2000], up from ity of courts conducting back- base includes “conviction infor- 44 percent in 1998.”171 Similarly, ground checks of all existing and mation, arrests less than one year a 2000 survey by the Society for future employees with the rigor old with dispositions pending, Human Resources Management accorded background screening of dependency proceedings, and in- “found that 61 percent of hiring other governmental employees in formation regarding registered sex managers polled had conducted positions of trust.”175 and kidnap offenders.”168 Users such screenings within the previ- are charged $10 per search, pay- ous year, compared with 44 per- Anecdotal evidence suggests a able by credit card or pre- cent who said they had done a surge in criminal background established account, and the fee screening regularly in a separate checks in the immediate aftermath can be waived for certain non- study two years earlier.”172 of September 11, even in areas profits for searches of convictions where the government has not for crimes against children or vul- Hard industrywide figures are newly mandated criminal back- nerable adults.169 Florida provides unavailable. It is estimated that ground checks. The Associated another example of repository use new congressional mandates for Press reported, for example, that of the Internet. In Florida, a name- background checks after Septem- “Two days after terrorist attacks based check can be ordered online ber 11 will result in more than a toppled with [sic] the World Trade from the repository for $23.170 million background checks.173 In Center, the chief executive of addition to mandates, courts and Empire International spent 3. The response to government agencies are promot- $40,000 for criminal background September 11 ing background checks. The Food checks on all 500 of his livery and Drug Administration, for drivers, most of whom work in Background checks, of course, example, has issued nonbinding New York City. He couldn’t have long been used as a tool to really afford it… . But it was the screen employees and volunteers only way he could think of to re- for suitability, particularly in cases 171Kim Curtis, “Company Back- assure his clients that they’re safe where the individual would be in a ground Checks More Common,” As- sociated Press (Sept. 23, 2001). Hereafter, Curtis article. 166 174FDA Guidance, supra note 1, Arkansas Department of Correc- 172 tions, “Inmate Population Information Tahmincioglu article, supra note recommended that operators have “a Search,” available at 87. criminal background check performed by local law enforcement or by a con- 173In February 2002, the Airline Pi- (visited Jan. 20, 2004). tract service provider.” An earlier lots Association alone estimated that version of the guidance issued on Jan. 167 Washington State Patrol, “WSP “up to 1 million aviation employees 9, 2002, also recommended checking Watch: Important Introductory Infor- who have access to secure areas will the FBI Watchlist. be fingerprinted, because no screeners mation,” available at 175 (visited had FBI background checks prior to National Task Force on Court Jan. 20, 2004). 1998 and no pilots prior to 1996.” Automation and Integration, Court Ron Scherer, “New step for job appli- Systems Information Technology Pri- 168 Ibid. cants: FBI checks,” Christian Science orities in the Aftermath of the Events 169 Ibid. Monitor (Feb. 1, 2002) available in of September 11, 2001 (Sacramento: the archive section at SEARCH, Nov. 27, 2001 draft) at p. 170FDLE site, supra note 106. . 3.

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with his drivers, some of whom creased 20% from 2001 to their background checking.184 have Middle Eastern back- 2002.180 HireCheck, another These customers “were not ex- grounds.”176 commercial vendor, reported a pecting to uncover a terrorist, but 25% increase in business.181 “Em- most, especially those in transpor- Similarly, the “terrorist attacks so ployee screening companies are tation, said they wanted to provide unnerved…a senior vice president seeing an unexpected rise in busi- an extra level of security to their for the Comforce Corpora- ness despite a decline in hiring. clients.”185 tion…that one week after they That’s because the scope of occurred he ordered criminal checks on new hires has widened The growing emphasis on security background checks on all infor- and current employees also get also has led corporate employers mation technology employees checks.”182 Or in some cases, cur- to reassess their processes for vet- with jobs in Internet security and rent employees got rechecked. ting prospective employees, in- networking systems support.”177 “Mark Black, supervisor of inves- cluding background checks. Some The executive is quoted as saying tigations for the Anne Arundel businesses, for example, “in- that while it was unlikely the County Public Schools in Anna- creased the number of job catego- company had hired terrorists: “We polis, Md., for example, decided ries for which they conducted want to make sure someone with a to recheck the backgrounds of 200 investigations and the types of felony history hasn’t snuck into bus drivers who had access to a searches being conducted.” 186 In our organization.”178 military installation where some addition, “businesses have ex- students live. While all drivers panded their criminal history A March 2002 survey by Building had undergone criminal screen- search area. In the past, many em- Owner and Managers Association ings before, he said, ‘given every- ployers would search only the (BOMA) International and the thing that’s going on, we wanted current county or state of resi- 183 Urban Land Institute of 200 of to make sure.’ ” dence. Today, companies auto- their members found that 60.9% matically research prior of commercial property owners There are a variety of potential residences, in most cases for a and managers conducted em- explanations for the increase in seven-year period.”187 ployee background checks on background checking activity. The their employees prior to Septem- examples cited above suggest an Verizon Communications, for ber 11, 2001; after September 11, abundance of caution and a desire example, put a much-enhanced the figure rose to 66.8%.179 to do something to reassure clients background screening protocol as reasons for the increase. An into effect in February 2002.188 Immediately after September 11, informal survey by HireCheck The new protocol: expanded the ChoicePoint reported a “dramatic found that about one-half of the timeframe reviewed during a increase” in inquiries and a 30% orders they received in the after- background investigation from 5 increase in business from security math of September 11 were fol- firms. According to security firm lowing standard procedures and 184 Kroll, Inc., the number of back- the other half were increasing Ibid. ground checks it conducted in- 185Ibid (quoting Renee Svec of Hirecheck Inc.). 180 Ann Davis, “Firms Dig Deep Into 186 176Curtis article, supra note 171. Workers’ Pasts Amid Post-Sept. 11 Society for Human Resources Management, “Life goes on: the Sept. 177 Security Anxiety,” Wall Street Jour- Tahmincioglu article, supra note nal (Classroom Edition) (Mar. 12, 11 attacks were over within hours, but 87. 2002). Hereafter, Davis article. the effects linger even today. This is 178 how employers are adapting,” HR Ibid. 181Tahmincioglu article, supra note Magazine (Vol. 47: Issue 9, Sept. 1, 179BOMA International, “National 87. 2002) (quoting Jackie Kohn, Gray- mark Security Group). Survey of Security Concerns Within 182Aja Whitaker, “Employee screen- the Real Estate Industry” (undated) at ing rises while hiring remains low,” 187Ibid. pp. 2, 6. Available at The [Tampa Bay, Fla.] Business Jour- . Walker, Executive Director of Human Planning/natsurveysecconcerns.htm> Resources Communications and Re- (visited June 28, 2004). Hereafter, 183Tahmincioglu article, supra note search, Verizon Communications, BOMA survey. 87. Dallas).

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to 7 years; expanded the criminal side vendors (caterers, mechanics, driving history informa- background check to include a medics, etc.) do not have criminal tion, reference checks, national check; and added an in- histories.194 civil litigation informa- ternational component for foreign tion, and verification of new hires with certain visas.189 Another anecdotal reason for in- Social Security numbers. Where the foreign employee has creased background checks in the Some employment been in the United States for aftermath of September 11 is that screening companies also fewer than 7 years, the company is companies that had been lax in offer drug-testing serv- now conducting an international meeting pre-existing background ices in addition to their background check in the new em- check obligations have since information products. ployee’s country of origin or resi- tightened their practices. As an 190 o Commercial vendors that dence. October 2001 New York Times provide tenant-screening article noted, “At the Chico services may supplement One area where organizations [Calif.] Municipal Airport, for criminal justice informa- appear to be focusing additional example, all employees of airport tion with other types of scrutiny is on the organization’s tenants must undergo criminal information, including service providers and contract background checks before they eviction data, credit his- workers. According to a March are allowed in secure areas. Rob- tories, returned check 2002 survey, for example, the ert Grierson, the airport’s man- histories, and rental his- “single security upgrade most ager, said he and his staff have tories.196 frequently utilized following Sep- been calling tenants since the tember 11 [by commercial build- [September 11] attacks to remind o Commercial vendors that ing managers] was tighter vendor them of that requirement. ‘Some- provide background security, which included require- times it gets quiet on the other end checks to singles seeking ments for vendor identification, of the phone,’ he said.”195 more information about vendor check-in and requests for prospective dates or vendors to conduct employee 4. Marketplace demands spouses supplement background checks.”191 The Na- criminal justice informa- tional Basketball Association re- Another factor promoting growth tion with everything from quired food and merchandise in the commercial vendor market identity-verification serv- vendors for the 2002 All Star is the ability of commercial ven- ices, to checks of marital game to submit the names of em- dors to provide additional data and and divorce records, to ployees in advance so that crimi- services that are essentially un- asset verification. nal background checks could be available from courts and criminal 192 o Because the United conducted. Pharmaceutical gi- justice agencies. States is a highly mobile ant Eli Lilly received considerable • One-stop shopping. Com- society, an individual media attention when it barred mercial vendors can combine could have criminal jus- numerous contract workers from criminal justice information tice records in multiple Lilly facilities following criminal from one State with criminal States. It may be more background checks (many of justice information from an- convenient and cost- whom lost their jobs as a re- other State or combine crimi- effective to go to one sult).193 In another example, two nal justice information with commercial vendor to major movie studios retained a other information products obtain information from security firm, Kroll Inc., to con- that are valued by end-users. these various States as firm that tens of thousands of out- opposed to going to the o In the employment context, this may include the State criminal history re- 189Ibid. provision of information positories, courts, or 190 Ibid. such as credit reports, other agencies in each 191 individual State. BOMA survey, supra note 179, at p. 2. 194Ibid. 192Davis article, supra note 180. 195Tahmincioglu article, supra note 193See, for example, ibid. 87. 196Ibid.

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• Screening out “irrelevant” Applicant,” along with the this type, which varies by or legally impermissible in- reasons for the recommenda- State, might include gross formation. In some States, tion.198 misdemeanors, traffic viola- system design limitations or tions, and bounced checks. Similarly, the Federal Office legal impediments prevent of Personnel Management— • Capacity. Capacity limita- courts or government agen- which provides Federal agen- tions, which can limit the cies from providing custom- cies with many services simi- speed with which State re- ized criminal background lar to those offered by positories or courts respond to reports or even from inquiring commercial vendors— noncriminal justice requests, as to the purpose behind a re- provides all information that can lead some end-users to cord request.197 End-users, it obtains as a part of a gov- use commercial vendors in- however, do not necessarily ernment background investi- stead.199 Some end-users want to receive everything, gation, but screens and scores place a premium on being particularly information that the data to help the agency able to obtain almost instant the end-user is legally prohib- reach a decision. results on demand. An execu- ited from considering as deci- tive with a temporary staffing sionmaking criteria. • Follow-up inquiries. It is the company, for example, Commercial vendors can and custom of courts and criminal emphasized the need for do provide this screening justice agencies to simply being able to conduct speedy function, thereby giving provide the information they background checks in a added value to the end-user. have on file at the time it is business where staff is often requested. That information, • Interpreting or packaging needed with little prior notice however, may in some cases the results of the check. An- (and the company finds be missing dispositions or other way in which commer- prescreening not to be cost- other data that may not be ap- cial vendors may add value effective). “The problem is parent to an end-user. Com- for end-users is to assist them that it takes anywhere from mercial vendors, particularly in evaluating the results. four to six hours on a good where a traditional, “upon re- day to get the answer back … ChoicePoint, for example, of- quest” report is being pre- sometimes it can take as long fers its tenant screening cus- pared, can serve as a useful as 24 hours.” “The ability to tomers what it refers to as intermediary, reviewing the get online and check “rules-based decisioning,” so- information for completeness [backgrounds] immediately is lutions that recommend rental and taking follow-up steps, why we went [with online actions based upon criteria such as going to local courts background checks].”200 (which may include criminal to obtain missing disposi- justice information), estab- tions. lished in conjunction with the 199 • Records not sent to reposi- As noted previously, the National landlord. The landlord is pro- Crime Prevention and Privacy Com- tories. Information about all vided with a recommendation pact Council has recognized that the offenses is not sent to State of “Accept with Normal Se- repositories, particularly post- repositories. Most reposito- curity Deposit,” “Accept with September 11, lack sufficient capacity ries, for example, do not ac- to meet the demand for background Additional Security Deposit cept information on lesser checks and announced its intention to or Guarantor,” or “Decline offenses for which the ac- issue a rule permitting outsourcing certain tasks in order to enhance the cused is not fingerprinted. capacity of the repositories. See 68 197This is not true in all States, how- Commercial vendors can, Federal Register 9098 (Feb. 27, ever. In some States, such as Califor- however, include such infor- 2003). Of course, capacity can also be nia, where legislatures have been very mation in their reports by ob- a differentiating factor between com- specific about whether a particular taining it from the courts. mercial vendors. offense may or may not be considered Examples of information of 200 for employment or other purposes, Security Management Online, “Background Checking Moves to the State repositories have developed software that modifies the criminal 198ChoicePoint Inc., “Services,” Forefront” (September 2002) avail- history report to be provided to reflect available at able at State law restrictions. (visited June 28, 2004). (quoting Gary

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5. Risk/loss mitigation the costs of training employees if the information is contained in who may or may not work out.204 an FCRA-covered report.206 Another factor driving the demand for background checks—whether The desire to avert risk of loss 7. Unavailability of State from commercial vendors, courts, also extends to efforts to minimize and Federal checks in or criminal justice agencies—is a potential legal liability arising some jurisdictions desire to mitigate the risk of loss. from the doctrine of negligent According to a 2002 University of hiring and retention. These doc- Another factor that contributes to Florida survey, the average dollar trines increase demand for crimi- the growth of the commercial in- loss per employee theft incident nal background checks because formation industry’s distribution 201 totaled $1,341.02. Many busi- many employers fear that failure of criminal justice information is nesses, for example, use back- to conduct such a check may re- that this information may not al- ground checks in an effort to sult in substantial damage awards ways be available to employers reduce employee theft by screen- if the employee later engages in a (and others) through the FBI and ing out bad employees before they bad act.205 central State repositories. Legal are hired. In the Florida survey, access restrictions in many States nearly 84 percent of retailers re- 6. Legal framework/ mean that many end-users are not ported using criminal conviction authorization provided authorized to obtain criminal jus- checks as a means of controlling tice information from the FBI and 202 by the Fair Credit employee theft. Thirty-one per- Reporting Act and State criminal history repositories cent of respondents anticipated State Law or may authorize access for only increasing their use of background specific purposes. Even where 203 checks. Growth in the commercial infor- State law provides a basis for ob- mation market is also fostered by taining criminal history informa- Even in cases where employee the Federal Fair Credit Reporting tion, this access may be theft is not an issue, to the extent Act (FCRA) and similar State impractical for the end-user be- that recidivism or other factors laws (also discussed in more detail cause of fingerprint requirements. could lead to turnover of employ- in part II). The FCRA and similar ees with criminal records, em- State laws implicitly authorize These restrictions result in an un- ployers may be concerned about commercial vendors to collect, met demand for criminal back- maintain, and disclose information ground checks. Commercial about consumers, including crimi- vendors have been able to fill this nal justice information, for certain demand by bypassing State crimi- statutorily recognized purposes, nal history repositories and, in- including employment. Impor- stead, obtaining the criminal Glaser, regional vice president for tantly, the FCRA also provides justice information from the Tandem Staffing Solutions in Mem- courts, corrections departments, phis, Tenn.) (visited June 28, 2004). qualified immunity for covered commercial vendors (referred to and other agencies where public 201 Richard C. Hollinger and Jason as “consumer reporting agencies” access is not prohibited by law. In L. Davis, 2002 National Retail Secu- in the FCRA) and end-users from addition, given that State reposito- rity Survey Final Report (Gainesville, ries customarily do not actively Fla.: University of Florida Security potential invasion of privacy, Research Project, 2003) at p. 19. defamation, and negligence claims “market” the information products Available at that they may make available to (visited June 28, State law, report requestors may 2004). Hereafter, Hollinger Retail not even realize that the State re- report. positories could serve as an alter- 202Ibid., at p. 13. According to the 204For a discussion of recidivism native to obtaining reports from survey, criminal conviction checks rates and the timing of recidivist commercial vendors. were significantly more likely to be events in relation to release or parole, conducted for nonprofessionals, both please see part III of this report. managers and nonmanagers (78.8%), 205 than for professionals (18.6%). For a discussion of the law of negligent hiring, please see part II of 203Ibid. this report. 20615 U.S.C. § 1681h(e).

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Access to FBI and State repository that they will somehow be at a records often is perceived to be disadvantage or failing to “do the most desirable means to con- their part” to make to make their duct a background check, even if community a safer place by not reports from commercial vendors conducting some form of a crimi- are faster and more easily tailored nal background check. to the end-user’s needs. The Na- tional Apartment Association (NAA) and the National Multi Housing Council (NMHC), for example, included increased access to FBI and repository records among their joint Federal legislative priorities for 2003. In providing background for their position, NAA and NMHC note: “In practice, private-sector criminal history databases provide substantial criminal history information much more quickly and flexibly than the [limited existing access to the Interstate Identification Index]. Broader access [to FBI and repository data]…would reduce the possibility of rental housing providers admitting renters whose criminal history is well-known to the federal government.”207

8. The “bandwagon” effect

Finally, it was the sense of the Task Force that, while difficult to document, the growth in background checks is being driven, at least to some extent, by a “bandwagon” effect, whereby employers, landlords, and others perceive that “everyone else” is conducting criminal background checks and

207National Apartment Association and the National Multi Housing Council Joint Legislative Program, 2003 Legislative and Regulatory Pri- orities (Washington, D.C.: February 2003). Hereafter, NAA/NMHC Joint Legislative Program.

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Part II. Regulation of access to and use of criminal justice record information

Federal and State law, and related A. Regulation of access a. Federal criminal history regulations, policies, and prac- to criminal justice record legislation and tices, have a significant impact record information regulation on― held by Beginning in the late 1960s and • the manner in which com- extending throughout the 1970s, governmental information privacy standards for mercial vendors and end- sources users obtain and maintain criminal justice information and, in particular, criminal history re- criminal justice record infor- The first category of relevant legal cords, received considerable atten- mation regulation promotes, restricts, or tion in statutory provisions and otherwise regulates access to • the ability of end-users to use U.S. Department of Justice (DOJ) criminal justice record informa- those reports for employment regulations. Although the privacy tion held by governmental sources and other purposes protections that emerged from that such as the FBI, State criminal debate were not driven by consti- • the safeguards that must be history repositories, the courts, tutional requirements, constitu- employed to protect the pri- and corrections departments. vacy of individuals to whom tional values―such as the presumption that an individual is the information pertains. 1. State repositories and innocent until proven the FBI With some overlap, these laws, guilty―have played a role in the regulations, policies, and practices The laws, regulations, policies, development of the law and regu- fall into four broad categories: and practices that regulate access lations governing the management to information held by govern- of criminal history information. 1. those that promote, restrict, or mental sources fall into two gen- otherwise regulate access to eral categories: (1) those that In 1967, the Report of the Presi- criminal justice record infor- regulate or restrict access to dent’s Commission on Law En- mation held by governmental criminal justice record informa- forcement and the Administration sources tion, and (2) those that authorize of Justice identified the need for 2. those that primarily regulate or require the conduct of criminal an “integrated national informa- the practices of commercial background checks for certain tion system” and recommended vendors, such as the Fair types of employment, such as the establishment of a “national Credit Reporting Act government employees, airport law enforcement directory that workers, and workers and volun- records an individual’s arrests for 3. those that regulate the infor- serious crimes, the disposition of mation that end-users, par- teers who come into contact with vulnerable populations such as each case, and all subsequent for- ticularly employers and mal contacts with criminal justice landlords, can use to make children, the disabled, and the elderly. agencies related to those arrests.” employment and housing de- The report also emphasized that it cisions We begin by discussing laws and is “essential” to identify and pro- 4. negligence doctrines that regulations, in both categories, tect security and privacy rights to promote efforts by employers that address criminal history in- ensure a fair, credible, and politi- and landlords to obtain crimi- formation held by the FBI and cally acceptable national criminal nal justice record information. 208 State repositories. justice information system. For

In addition, some commercial vendors have undertaken self- 208Project SEARCH, Technical Re- regulatory efforts to govern their port No. 2: Security and Privacy Con- information practices. siderations in Criminal History Information Systems (Sacramento: California Crime Technological Re- search Foundation, 1970) pp. 3–5

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most of the last 30 years, the U.S. nation as would apply to the The regulations in 28 CFR Part 20 DOJ, working through the FBI; FBI.210 set standards for data quality that the Law Enforcement Assistance are detailed and ambitious. Thus, Administration (LEAA) and its In 1973, Congress enacted the for example, the regulations re- successor agencies, the Office of “Kennedy Amendment” to the quire that States maintain accurate Justice Programs (OJP), the Bu- Omnibus Crime Control and Safe records containing no erroneous reau of Justice Statistics (BJS), Streets Act of 1968, which pro- information and “complete re- and the Bureau of Justice Assis- vides that all the criminal history cords,” defined as containing “in- tance (BJA); and the State and record information collected, formation of any dispositions local criminal justice information maintained, or disseminated by occurring within the State within community, including SEARCH State and local criminal justice 90 days after disposition has oc- and the FBI Criminal Justice In- agencies with financial support curred.”213 The regulations recog- formation Services Division’s under the Omnibus Crime Control nize that incomplete or inaccurate Advisory Policy Board (CJIS and Safe Streets Act must be criminal history data, particularly APB), have worked toward the made available for review and arrest information without corre- implementation of an automated challenge by record subjects and sponding disposition information, national system for the exchange must be used only for law en- could have negative implications of criminal history records, along forcement and other lawful pur- for the record subject and his or with a set of comprehensive pri- poses.211 Subsequently, DOJ her participation in society.214 vacy standards.209 published comprehensive regulations “to assure that criminal his- The regulations give States the In 1972, Congress authorized the tory record information…is discretion to set their own stan- FBI to “exchange identification collected, stored, and dissemi- dards for dissemination of crimi- records” with State and local offi- nated in a manner to ensure the nal history information, but they cials for “purposes of employment accuracy, completeness, currency, provide that use of such informa- and licensing,” provided that the integrity, and security of such tion shall be limited to the purpose exchange of information is author- information and to protect indi- for which it is given.215 In recog- ized by State statute and approved vidual privacy.”212 nition of the fact that many juris- by the Attorney General, and pro- dictions’ conviction data have vided that the exchange of infor- historically been made available mation is made only for official 210Pub. L. No. 92-544, Title II, § without limitation, the regulations use and is subject to the same re- 201, 86 Stat. 1115. See Privacy Task provide that conviction data can strictions with respect to dissemi- Force report at p. 17. be disseminated without specific 216 21142 U.S.C. § 3789G(b), as authorizing legislation. They amended by § 524(b) of the Crime also provide, however, that the Control Act of 1973, Pub. L. No. 93- regulations cannot be construed to 83 (1973). See Privacy Task Force report at p. 17. 21328 C.F.R. § 20.21(a). To accom- 212 (quoting from the President’s Com- 28 C.F.R. § 20.01. In developing plish the goal of maintaining accurate mission Report). the regulations, the LEAA was influ- records, States are required to “insti- enced by the recommendations in 209 tute a process of data collection, entry, Pub. L. No. 92-544, Title II, § SEARCH’s Technical Report No. 13, storage, and systematic audit that will 201, 86 Stat. 1115. Privacy Task which was the organization’s first minimize the possibility of recording Force report, supra note 106, at p. 17. comprehensive statement of 25 rec- and storing inaccurate information,” 28 U.S.C. § 534 provides the statutory ommendations for safeguarding the and if inaccurate information of a authority for the FBI to maintain and security and privacy of criminal jus- material nature is found, the State disseminate criminal history records, tice information. See Technical Re- must notify all criminal justice agen- by authorizing the Attorney General port No. 13: Standards for the cies known to have received the inac- to “acquire, collect, classify and pre- Security and Privacy of Criminal curate information. 28 C.F.R at § serve criminal identification, crime Justice Information (Sacramento: 20.21(a)(2). and other records,” and to “exchange SEARCH Group, Inc., 1975). Indeed, 214 such records and information with and the Appendix to the regulations refers See, for example, 28 C.F.R. Part for the official use of, authorized offi- States to the SEARCH report for 20, Appendix. cials of the federal government, the guidance in formulating their State 215See 28 C.F.R. § 20.21(c). States, cities and penal and other insti- plans. 28 C.F.R. Part 20, Appendix § tutions.” 20.22(a). 21628 C.F.R. § 20.21(b).

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negate any State law that limits The Compact addresses the use, from unauthorized disclosure or the dissemination of conviction for noncriminal justice purposes, use.”225 data.217 On the other hand, the of the Interstate Identification regulations make a clear distinc- Index system (III), which consists Under the Compact, the FBI and tion between dissemination of of an index, maintained by the the participating States agree to conviction data and nonconviction FBI, of all individuals with State maintain detailed databases of data, which is defined to include or Federal criminal history re- their criminal history records, arrests more than 1 year old with- cords, supported by a National including arrests and dispositions; out a disposition and arrests with Fingerprint File.223 In enacting the to make them available to each dispositions favorable to the ac- Compact, Congress recognized other for noncriminal justice pur- cused.218 Under the regulations, that the legally authorized non- poses; and to adhere to rules, pro- nonconviction data cannot be dis- criminal justice purposes for cedures, and standards established seminated unless authorized by a which criminal history records are by the Compact Council concern- State statute, ordinance, executive exchanged, and the procedures for ing record dissemination and use, order, or court rule, decision, or such exchanges, vary widely from response times, system security, order.219 State to State. Congress found that data quality, and other established an interstate and Federal/State standards that enhance the accu- b. National Crime compact was necessary to facili- racy and privacy of the records.226 Prevention and Privacy tate authorized interstate criminal The Compact expressly excludes, Compact history record exchanges for non- from the criminal history records In October 1998, the Congress criminal justice purposes on a subject to the Compact, identifica- enacted the Crime Identification uniform basis, while permitting tion information (such as finger- 220 Technology Act, which in- each State to effectuate its own print records), if such information cludes as Title II, the National dissemination policy within its does not indicate involvement of Crime Prevention and Privacy own borders.224 The Compact is the individual with the criminal 221 Compact Act. The National designed to provide expeditious justice system.227 Crime Prevention and Privacy access to records “in accordance Compact is an interstate and Fed- with pertinent Federal and State c. State statutes governing eral/State compact that is designed law,” while “simultaneously en- the receipt and to facilitate and regulate the ex- hancing the accuracy of the re- maintenance of criminal history record change of criminal history infor- cords and safeguarding the information by State mation, for noncriminal justice information contained therein purposes, among the States and repositories the Federal Government. As of The information that a State re- January 2004, the Federal Gov- pository receives from local agen- ernment and 21 States had ratified cies and maintains is a function of the Compact, which became effec- Minnesota, Arizona, Tennessee, North State law. The offenses for which tive on April 28, 1999, following Carolina, New Hampshire, and Mis- information is reported to the re- its ratification by two States.222 souri. It is expected that most States positories vary by State. A De- will ratify in 2–5 years. See “National fense Personnel Security Research Crime Prevention and Privacy Com- Center technical report illustrated pact,” available at 217 this point through a comparison of 28 C.F.R. Part 20, Appendix § (visited June 28, 2004). what constitutes a reportable offense in California, Florida, Penn- 21828 C.F.R. at § 20.3(q). 223 The Compact defines “noncrimi- sylvania, and Indiana. The report 21928 C.F.R. at § 20.21(b). nal justice purposes” to mean pur- found that fewer offenses are re- poses authorized by Federal or State 22042 U.S.C. § 14601. law other than those relating to crimi- portable in Pennsylvania and Indi- nal justice activities, including em- 22142 U.S.C. § 14611 et seq. ployment suitability, licensing 225Ibid., at § 14611(5). 222The States that had ratified the determinations, immigration and natu- 226 Compact as of December 2003 are: ralization matters, and national secu- Ibid., at § 14616(b) and Article II. Montana, Georgia, Nevada, Florida, rity clearances. 42 U.S.C. § 14616, The Compact Council is comprised of Colorado, Iowa, Connecticut, South Article I (18). State and Federal officials. Carolina, Arkansas, Kansas, Alaska, 227 22442 U.S.C. § 14611(3) and (4). Ibid., at Article I (4). Ohio, Oklahoma, Maine, New Jersey,

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ana than in California and Florida, Indiana includes as a reportable vacy of criminal history record as the following State highlights offense― information, State laws establish- demonstrate.228 ing the practices and procedures • all felonies and certain Class for the dissemination of criminal A misdemeanors that the re- California includes as a report- history information by the State pository superintendent may able offense— repositories vary widely, ranging designate.231 from open record States, which • every arrest and disposition While there are variations be- permit anyone to obtain access to except as otherwise provided tween States, it is important to all but sealed or expunged re- by law or as prescribed by the note that felonies and at least cords, to States that closely regu- Department of Justice some misdemeanors are virtually late disclosure. Summarized • any crime or attempted crime always reportable to the reposito- below are the governing principles that is motivated by ethnicity, ries. that characterize the general ap- gender, sexual orientation, or proach taken by most States, and any disability d. State statutes governing then, by way of example, we dis- dissemination of criminal cuss with more specificity the • forgery, fraud-bunco, bomb- justice record application of those principles in ings, receiving or selling sto- information by State the laws of three States. len property, safe and repositories commercial burglary, grand The bulk of the criminal justice In general, all States give record theft, child abuse, homicide, information maintained in the subjects the right to inspect their threats, and offenses involv- United States is held at the State own criminal history records, and ing lost, stolen, found, level; therefore, most of the legis- most permit the subjects to chal- pledged, or pawned property lation governing the dissemination lenge and/or offer corrections to • DUI (starting in 2000).229 and use of this information is the information in their records. In found at the State level (with a addition, most States have formal Florida includes as a reportable few important exceptions, dis- or informal restrictions that segre- offense― cussed elsewhere in this report). gate criminal history record in- Throughout the 1970s and into the formation from other types of • all adult felony arrests and, 1980s, States adopted statutes personal information. Thus, for unless specified otherwise by based largely on the recommenda- example, criminal history record statute, all adult misdemeanor tions of the U.S. DOJ and information customarily does not arrests SEARCH. By the early 1990s, include investigative or intelli- • any juvenile arrest that would approximately one-half of the gence information, or medical, be considered a felony if States had enacted comprehensive employment, financial, or military committed by an adult. criminal history record legislation, information.233 and every State had enacted stat- Pennsylvania includes as a re- utes that address at least some The States have also adopted portable offense― aspects of criminal history re- standards for ensuring the accu- 232 cords. racy and completeness of criminal • all felony and misdemeanor history record information. For offenses Today, while all States tend to example, the criminal history re- • those summary offenses that adhere to several fundamental cords maintained in virtually become misdemeanor upon a principles in protecting the pri- every State repository must be second offense.230 supported by a fingerprint record and, with certain exceptions, re- 230“Summary offenses” is a special class of offenses in Pennsylvania, quests must be accompanied by a fingerprint. Fingerprint support 228 which overlap with misdemeanors in Buck and Reed report, supra note California, Florida, and Indiana. ensures that the record maintained 142, at pp. 10–11. 231 at the repository related to the 229 Buck and Reed report, supra note California excludes public in- 142, p. 11, Figure 2. correct person, and that the reposi- toxication offenses unless there is a special justification for reporting 232Privacy Task Force report, supra them. note 106, at p. 18. 233Ibid., at p. 19.

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tory’s response similarly related to provided conviction-only informa- policy is designed to implement the correct person.234 Most States tion. Except in a few “open re- the State’s public record law.238 also have laws that permit the cord” States such as Florida and purging of nonconviction informa- Wisconsin, the general public is In general, requests for criminal tion; many have adopted standards restricted in its ability to obtain history records by noncriminal for the purging of certain convic- criminal history record informa- justice users in Florida fall into tion information if certain condition from the central State reposi- two broad categories. The first tions are met; many States also tories, except for certain classes of category is comprised of agencies have laws and regulations permit- information, such as sex offender and organizations with approved ting and otherwise governing the registry information.236 For illus- statutory authorizations to receive sealing of nonconviction and con- trative purposes, the criminal his- information from the FBI as well viction information. All States tory record information that is as FDLE. State departments and have adopted some kind of stan- available in each of three States, agencies authorized to access in- dards for the security of their re- Florida, Washington, and Massa- formation for employment back- positories, although the nature and chusetts, is described below. Each ground checks make up the bulk extent of the standards vary sub- of them typifies one of three lev- of this category, but it also in- stantially.235 els of openness that can be used to cludes licensing bureaus, universi- characterize the laws of all 50 ties, State commissions, and the Similarly, all States have adopted States. agency responsible for running the laws or regulations setting stan- State lottery. dards for the use and/or dissemi- — Access to criminal justice nation of criminal history record record information in an The second category comprises information. While the standards “open records” State, agencies and organizations with- vary, as a practical matter, every such as Florida out statutory authorization that are State makes all criminal history eligible to receive information record information available for In 1977, the Florida Department only from FDLE files, pursuant to criminal justice purposes, unless of Law Enforcement (FDLE) the public records law. Requestors the information has been sealed by adopted a policy of making all in this category may request a statute or by court order. Outside State-generated criminal history search of Florida-generated crimi- of the criminal justice system, records available upon request by conviction information is widely any member of the public for any available but nonconviction in- purpose, upon payment of the cords, the Effect of an Open Records formation may be more difficult to applicable fees, which are de- Policy (Sacramento: SEARCH Group, obtain or may be readily available signed to offset the costs of public Inc., 1990). Hereafter, Woodard re- 237 port. only to certain types of users, such record access requests. The as licensing boards and certain 238The policy is interpreted in con- 236 junction with Chapter 943 of the Flor- types of employers who employ Ibid., at p. 20. As of 2001, four individuals in highly sensitive States were “open records” States: ida Statutes, which regulates the collection, maintenance, and dissemi- positions, such as school bus driv- Florida, Wisconsin, Oklahoma, and Iowa. Robert R. Belair, et al., Use and nation of criminal justice information. ers or childcare workers. In most Section 943.053(2) effectively re- States, authorized noncriminal Management of Criminal History Record Information: A Comprehen- stricts the applicability of the State justice requestors receive less than sive Report, 2001 Update, Criminal public records law to Florida- the full record; most often they are Justice Information Policy series, NCJ generated records by providing that criminal justice information obtained 187670 (Washington, D.C.: U.S. De- from the Federal government and 234The principal exception for law partment of Justice, Bureau of Justice Statistics, December 2001) at p. 52. other States shall be disseminated enforcement occurs in instances only in accordance with Federal law where the law enforcement agency Hereafter, 2001 Use and Management report. and policy, and the law and policy of does not have the individual in cus- the originating State. Similarly, sec- tody and, therefore, cannot provide a 237This section is excerpted from a tion 943.054(1) restricts the ability of fingerprint, or in situations requiring a discussion in the Privacy Task Force FDLE to make available any informa- quick turnaround. In such instances, a report, supra 106, at pp. 21–22, which tion derived from a system of the U.S. name-plus-identifier check is permit- in turn, was based upon information DOJ to only those noncriminal justice ted. Ibid., at p. 19. from the FDLE, and Paul L. purposes approved by the Attorney 235Ibid., at pp. 19–20. Woodard, A Florida Case Study: General or the Attorney General’s Availability of Criminal History Re- designee. Woodard report, ibid.

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nal records for any purpose by The Washington State Patrol financial exploitation, civil adju- paying the appropriate fee. These (WSP) is responsible for main- dications, and sex offender and inquiries are typically “name taining the Washington repository kidnapper registration informa- only,” although fingerprints will of criminal history record infor- tion.” Requestors are required to be compared if supplied by the mation. Depending upon the pur- provide a copy of the report to the requestor. Responses to these re- pose of the request, WSP may record subject, and further dis- quests include all unsealed, Flor- respond under two different stat- semination or use of the record is ida-generated criminal history utes, the Criminal Records Pri- prohibited. Furthermore, employ- records in the FDLE computerized vacy Act240 or the Child and Adult ers who obtain records pursuant to files. According to FDLE offi- Abuse Information Act.241 Both this Act may use them only to cials, while requests are filed by name and descriptor searches and make the initial employment deci- all types of agencies for a wide fingerprint-supported searches are sion. Violators are subject to civil variety of purposes, the most performed. damages. common reason is employment screening, and most of these re- Requests made pursuant to the WSP does not make sex offender questers are regular users with Criminal Records Privacy information publicly available assigned account numbers to fa- Act―which provide the requestor over the Internet, but some sex cilitate billing and processing. In with conviction information―can offender information is available addition to requests for an indi- be made by anyone for any pur- for certain employment back- vidual’s entire criminal history pose, without the consent of the ground checks. In addition, WSP record, FDLE also administers record subject. If there is a record, disseminates limited information databases of sexual offenders and the requestor will receive a report on sex offenders to the general sexual predators (as defined under detailing all State of Washington public in response to written re- Florida law) that the public can convictions and pending arrests quests. Some local departments search over the Internet. less than 1 year old without dispo- make sex offender information sition, and whether the individual publicly available over the Inter- — Access to criminal justice is a registered sex offender or kid- net. In addition, and based upon record information in an napper. Secondary disclosure of the risk level of the offender, local “intermediate records” criminal history record informa- law enforcement may notify State, such as tion obtained pursuant to this stat- neighbors and community mem- ute is restricted. bers. Washington

In Washington, certified criminal Access to criminal history records — Access to criminal justice justice agencies may request and information pursuant to the Child record information in a receive criminal history record and Adult Abuse Information Act “closed records” State, information without restriction for is limited to “businesses or orga- such as Massachusetts criminal justice purposes. Non- nizations licensed in the State of criminal justice entities and indi- Washington; any agency of the The Massachusetts Criminal His- viduals may receive access only to State; or other governmental enti- tory Systems Board (CHSB) was conviction information.239 ties that educate, train, treat, su- created in 1972 and is governed pervise, house, or provide by a 17-member board comprised recreation to developmentally of representatives from the crimi- disabled persons, vulnerable nal justice community. The Board 239This section is excerpted from a adults, or children under 16 years handles criminal justice requests discussion in the Privacy Task Force of age.” If a record exists, it will for criminal history records elec- report, supra note 106, at pp. 23–24, include Washington convictions tronically; public access requests, which, in turn, was based upon infor- and pending arrest offenses under which are restricted, are processed mation from the Washington State using the U.S. mail and e-mail.242 Patrol and Devon B. Adams, Update 1 year old of “crimes against chil- 1999: Summary of State Sex Offender dren or other persons, crimes of Registry Dissemination Procedures, Fact Sheet series, NCJ 177620 240 Chapter 10.97 revised Code of 242This section is excerpted from a (Washington, D.C.: U.S. Department Washington (RCW). of Justice, Bureau of Justice Statistics, discussion in the Privacy Task Force August 1999) p. 7. 241RCW §§ 43.43.830-845. report, supra note 106, at pp. 25–26, which, in turn, was based upon infor-

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Public access requests must in- criminal history information if the Federal employment statutes clude the name and date of birth requestor (a) qualifies as a crimi- include― of the subject of the inquiry. Not nal justice agency; (b) is an • The Port and Maritime Secu- all criminal history records are agency or individual authorized to rity Act, signed into law on available to the public, and many have access by State law; and/or November 25, 2002, which factors determine what informa- (c) it has been determined that the requires background checks tion is accessible, including the public interest in disseminating for persons with unrestricted charge, the sentence, current such information clearly out- access to controlled areas in status, and length of time since weighs individual privacy inter- maritime facilities, or to secu- sentence completion. By way of ests. More than 6,000 noncriminal rity-sensitive information, as illustration, information would be justice agencies in Massachusetts designated by the Secretary of publicly accessible if the record are authorized to access criminal Homeland Security.243 subject has been convicted of a records. For example, parents can crime punishable by a sentence of seek access to all conviction and • The Bioterrorism Prepared- 5 years or more, or convicted of pending case information on pro- ness Act of 2002, signed into any crime and sentenced to a term spective daycare providers with law on June 12, 2002, which of incarceration. In addition, at the the written notarized consent of requires reviews to determine time of the access request, the the record subject; however, par- whether persons should be record subject must― ents are prohibited from disclos- granted access to certain bio- ing any results of the criminal logical agents and toxins.244 • be incarcerated, or history check to third parties. • The Aviation and Transporta- • be on probation, or tion Security Act, signed into Access to sex offender informa- • be on parole, or law on November 19, 2001, tion is governed by separate rules. which creates numerous • having been convicted of a Subject to several specific limita- background check require- misdemeanor, has been re- tions, certain information is avail- ments, including for airport leased from incarceration, able about sex offenders classified security personnel, airport probation, parole, or supervi- by the Massachusetts Sex Of- and airline employees, indi- sion for not more than 1 year, fender Registry Board as posing a viduals with access to secure or moderate or high risk (after the areas of airports, Federal air offender has an opportunity for • having been convicted of a marshals, and other transpor- administrative evidentiary pro- felony, has been released tation security personnel.245 ceedings). Included with all in- from incarceration, probation, formation provided is language • The USA PATRIOT Act, parole, or supervision within cautioning that the misuse of sex signed into law October 26, the last 2 years, or offender information for purposes 2001, which requires or • having been sentenced to the of harassment or discrimination is authorizes background checks custody of the Department of prohibited. for screeners and air- Correction, has finally been port/airline employees, cer- discharged therefrom, either e. Federal and State tain individuals seeking entry having been denied release on statutes authorizing or into the United States, and parole or having been re- requiring criminal applicants for hazardous ma- background checks turned to penal custody for terials licenses.246 violating parole for not more A number of Federal statutes, in- than 3 years. cluding several enacted following the September 11 terrorist attacks, CHSB certifies applicants for ac- authorize or require the conduct of criminal background checks for cess to nonpublicly available 243 purposes such as employment or Pub. L. No. 107-295; 47 U.S.C. § volunteer services, firearms pur- 70105. 244 mation from the Massachusetts chases, and housing. Following Pub. L. No. 107-188. Criminal History Systems Board and are some examples. 245Pub. L. No. 107-71. the Massachusetts Sex Offender Reg- istry Board. 246Pub. L. No. 107-56.

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• The National Child Protection FBI for criminal background lawyers; mortgage brokers; and Act of 1993,247 as amended, checks.251 school employees who will have which authorizes States and unsupervised access to children. • Federal law also authorizes qualified entities, such as Statutorily authorized checks can certain employers in the fi- schools or youth-serving serve as the basis for conducting a nancial services sector to nonprofit organizations, to nationwide criminal check using submit employee fingerprints make nationwide background the III system. In addition, in for background checks,252 and checks based upon finger- States where access to information requires that members of na- print-based identification to contained in the State repositories tional securities exchanges, determine if a care provider is not publicly available, authori- brokers, dealers, and others, has been convicted of a crime zation by State statute is necessary submit fingerprints to the FBI that bears upon the provider’s to access information held by the so that criminal history back- fitness to have responsibility repository. ground checks can be per- for the safety and well-being formed.253 of children, the elderly, or in- f. Sex offender registry dividuals with disabilities.248 information Federal statutes related to the Federal law also requires Over the past 10 years, every State purchase of firearms include― background checks for em- has developed a sex offender reg- ployees in childcare centers • The Brady Handgun Violence istry intended to provide increased located on certain Federal Prevention Act,254 which re- public and law enforcement properties (such as executive quires background checks to awareness of sex offenders in the branch agencies).249 determine an individual’s eli- communities where they live. The gibility for certain firearms registries, which are often main- • The Security Clearance In- purchases. Brady checks contained by State criminal history formation Act of 1985 sider disqualifying criminal repositories, contain information (SCIA),250 which created a history information as well as about designated sex offenses Federal standard authorizing a range of other disqualifying (which vary by State), but also can the Central Intelligence factors, such as the individ- contain other information, such as Agency, the Office of Per- ual’s adjudication as a mental a registrant’s current address and sonnel Management, the De- defective, use of a controlled an assessment of the level of risk partment of Defense, and the substance, or dishonorable that the registrant poses to the FBI to access criminal history military discharge. community. As of January 2004, information for background all 50 States and the District of checks for security clearances Federal public housing statutes Columbia had centralized sex of- and placement of people in include― fender registries and 45 States and national security duties. the District of Columbia had In- • Federal law that permits pub- • The requirement that employ- ternet sites devoted to their sex lic housing authorities to re- ers operating nuclear facilities offender registries, most of them quest nationwide background 256 fingerprint employees and, searchable. In States that are checks on tenants.255 through the U.S. Nuclear legally permitted to put offender Regulatory Commission, Similarly, State laws authorize or information on the Internet, and submit the fingerprints to the require criminal background have done so, commercial vendors checks for various licensing and can use those systems as an addi- 247Pub. L. No. 103-209 (Dec. 20, employment purposes, such as for tional resource for information 1993). products. 251 24842 U.S.C. § 5119a(a); Volunteers 42 U.S.C. § 2169(a). for Children Act, Pub. L. No. 105-221 2525 U.S.C. § 9101. §§ 221-222 (Oct. 9, 1998) 112 Stat. 253 1885 (amending 42 U.S.C. § 5119a). 15 U.S.C. § 78(q)(f)(2). 256See SEARCH Law and Policy 249 254 State Sex Offender Registry Web site, Pub. L. No. 107-217 (Aug. 21, Pub. L. No. 103-159 (Nov. 30, 2002). 1993). available at (visited June fied in part at 5 U.S.C. § 9101. U.S.C. § 1437d(q). 28, 2004).

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2. Access to criminal Moreover, the Federal and State confidence in the operation of the history information laws and regulations that gener- court system.262 maintained by courts ally restrict the use of criminal history information contained in Open access to court records is a. Presumption of open repositories maintained by execu- also rooted in constitutional prin- public access to court tive branch agencies to criminal ciples. One of the seminal public records justice purposes “do not extend to access decisions by the U.S. Su- In addition to the information information once it becomes part preme Court, decided on constitu- maintained in Federal and State of a court record in a case, nor do tional grounds, is Richmond repositories, pieces of an individ- they extend to court records con- Newspapers Inc. v. Virginia.263 ual’s criminal history record are taining criminal conviction infor- The case arose from a dispute not also held in “open record” files mation.”259 Accordingly, as noted over public access to records, but maintained by police agencies and above, the primary source of rather over the ability of the pub- the courts. These original records criminal history information for lic (actually, the press) to attend a of entry describe formal deten- commercial vendors is the court criminal trial that had been closed tions and arrests, and can include system. at the request of the defendant, incident reports, arrest reports, with the consent of the prosecutor case reports, and other informa- This presumption of open access and the agreement of the trial tion that document that an indi- to court files is rooted in the court. The trial was closed pursu- vidual has been detained, taken common law and in constitutional ant to a State statute that permitted into custody, or otherwise been principles. The U.S. Supreme closure of a trial under certain formally charged. Records of Court has recognized a fundamen- circumstances. The Supreme court proceedings include indict- tal common law right “to inspect Court of Virginia upheld the trial ments, arraignments, preliminary and copy public records and closure, but the U.S. Supreme hearings, pretrial release hearings, documents, including judicial re- Court reversed that decision on and other court events that, by law cords and documents.”260 This appeal. and tradition, are open to public right is not absolute, however: inspection.257 “[E]very court has supervisory In the Richmond Newspapers power over its own records and case, the Court analyzed the evo- As stated by the Conference of files, and access has been denied lution of the criminal trial in the Chief Justices and Conference of where court files might have be- Anglo-American legal system, State Court Administrators in Oc- come a vehicle for improper pur- concluded that what “is significant tober 2002: poses.”261 Courts have cited for present purposes is that various reasons underlying the throughout its evolution, the trial Historically, most court files tradition of open court records, has been open to all who cared to have been open to anyone including, for example, to aid in observe,”264 and found that there willing to come down to the preserving the integrity of the is a first amendment right of ac- courthouse and examine the judicial process; to enhance the cess to criminal trials.265 Concur- files. The reason that court public trust and confidence in the ring opinions in the case further files are open is to allow the judicial process; to insulate the public to observe and moni- process against attempts to use the tor the judiciary and the 262 courts as tools for persecution; Susan Larson, “Public Access to cases it hears, to find out the Electronic Court Records and Com- and to maintain public trust and status of parties to cases, for peting Privacy Interests,” Judgelink example dissolution of mar- (Jan. 9, 2003) at p. 1, citing United riage, or to find out final Records: A National Project to Assist States v. Hickey, 767 F.2d 705, 708 258 State Courts (National Center for (10th Cir. 1984) (hereafter, Larson judgments in cases. State Courts and The Justice Man- article); Williams v. Stafford, 589 P.2d agement Institute, Oct. 18, 2002) at 1. 322, 325 (Wyo. 1979); Vermont Hereafter, CCJ/COSCA Guidelines. Rules for Public Access to Court Re-

259 cords, § 1 Reporter’s Notes. 257Privacy Task Force report, supra Ibid., at p. 47. 263448 U.S. 555 (1980). note 106, at pp. 13–14. 260Nixon v. Warner Communica- 264 258Martha Wade Steketee and Alan tions, Inc. 435 U.S. 589 (1978). Ibid., at 564. Carlson, Developing CCJ/COSCA 261Ibid., at 596. 265Ibid., at 576–77. Guidelines for Public Access to Court

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illuminate the scope of the Court’s proper use of such records.268 In form―which allows for easier decision. Thus, for example, Jus- some States, however, legislatures and broader public access―but tice Stevens stated that the “First play a role in setting court record- data from electronic records can Amendment protects the public access law.269 be compiled in new ways, and and the press from abridgement of bulk access allows entire data- their rights of access to informa- Generally, all documents filed bases to be copied. Moreover, tion about the operation of their with a Federal court are public Internet access to court records government, including the judicial records and are available through allows greater numbers of people branch.”266 But, Justice Brennan the clerk’s office, although some to more easily review potentially emphasized that the right of ac- documents are sealed by special sensitive information contained in cess is not absolute: “[O]ur deci- court order, and some documents court records, thus threatening to sions must…be understood as are confidential by operation of eliminate the “practical obscurity” holding only that any privilege of law, such as grand jury materials of paper court records that previ- access to governmental informa- and criminal files relating to juve- ously could have been said to pro- tion is subject to a degree of re- niles.270 In recent years, the Judi- vide some measure of privacy straint dictated by the nature of cial Conference of the United protection for court participants.272 the information and countervailing States, which is the principal poli- interests in security or confidenti- cymaking body for the Federal In attempting to balance the com- ality.”267 court system, has been addressing peting interests posed by new issues related to public and private technologies, privacy interests, b. General description of access to electronic records in all and historical principles of open- court procedures Federal courts.271 ness, the courts have grappled concerning record with several questions. For exam- access While historically court files have ple, should different access rules The general rule remains that been open, technological innova- apply to paper as opposed to elec- court records, including those in tions have made the question of tronic records? Should different criminal cases, are open to the public access substantially more rules apply to different types of public; however, individual juris- complex than in the past, when records (for example, to court dictions and individual courts are individuals had to go to the court- opinions versus records of court responsible for determining the house and wade through volumes proceedings)? Should distinctions particulars of how to implement of paper or sit through a trial to be drawn between criminal and that rule. Thus, historically, the obtain access to court-held infor- civil cases? How can sensitive procedures governing access to mation. Not only are court records information be defined and pro- court records have varied from now available in electronic tected in otherwise accessible re- jurisdiction to jurisdiction. In most cords? Is it appropriate to charge States, courts exercise control 268 for online access to records? over their records and define pub- Larson article, supra note 262, at p. 2, citing Nixon v. Warner Commu- Should cost or access distinctions lic access rules under their general nications, 435 U.S. 589 (1978). be made depending upon who supervisory powers, which in- 269 requests the records (for example, clude the authority to prevent im- See, for example, Va. Code Ann. lawyers versus ordinary citizens, § 16.1-69.54, et seq. or citizens versus commercial 270 See Web site of the U.S. Courts, vendors)? Should data be avail- available at able in bulk? . 271 266Ibid., at 584 (Stevens, J., concur- See, for example, Report of the At present, there is a wide variety ring). Judicial Conference Committee on of responses to these questions. Court Administration and Case Man- While many committees and or- 267Ibid., at 586 (Brennan, J., concur- agement on Privacy and Public Ac- ring). But see Paul v. Davis, 424 U.S. cess to Electronic Case Files, Judicial ganizations have begun to study 693, 713 (1976), which held that the Conference of the United States, Jan. public access issues and publish Constitution does not recognize a 8, 2003, available at recommendations and guide- privacy interest in the dissemination (visited June 28, 2004). Hereaf- mation about official acts, such as ter, Judicial Conference Committee 272Larson article, supra note 262, at arrests. report. p. 1.

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lines,273 the adoption of policies — Chief justices/State court prehensive framework for a policy and promulgation of rules by administrators guidelines on public access to court records, courts is still in a state of flux.274 for public access to court providing for access in a manner records consistent with 11 “significant” Discussed below are the guide- public policy interests: lines for public access to court In order to provide guidance to 1. maximize accessibility to records adopted by the Confer- State judiciaries and local courts court records ence of Chief Justices and Confer- on how to address the myriad pol- ence of State Court icy issues related to public access 2. support the role of the judici- Administrators to assist State to court records in the current en- ary courts, followed by brief descrip- vironment, the Conference of 3. promote governmental actions of how two States have re- Chief Justices/Conference of State countability cently addressed the issues raised Court Administrators by public access to court records (COCJ/COSCA) published guide- 4. contribute to public safety in light of technological advances. lines on the subject in October 2002. As explained in the intro- 5. minimize risk of injury to duction, new access policies may individuals be required for several reasons: 6. protect individual privacy Technological innovations rights and interests 273 See, for example, CCJ/COSCA have resulted in more court 7. protect proprietary business Guidelines, supra note 258, Privacy records being available in information Task Force report, supra 106. electronic form and permit 274See Center for Democracy & easier and wider access to 8. minimize reluctance to use Technology, “A Quiet Revolution in the records that have always the courts to resolve disputes the Courts: Electronic Access to State been available in the court- 9. make most effective use of Court Records: A CDT Survey of house. Information in court court and clerk of court staff State Activity and Comments on Pri- records can now be “broad- vacy, Cost, Equity and Accountabil- 10. provide excellent customer ity” (Aug. 21, 2002), which includes a cast” by being made avail- State-by-State summary of the type of able through the Internet. service electronic access provided as of July Information in electronic re- 11. avoid unduly burdening the 1, 2002. Available at cords can be easily compiled ongoing business of the judi- (visited base can be copied and dis- June 28, 2004). See also, Reporters Committee for Freedom of the Press, tributed to others. At the The CCJ/COSCA guidelines are “Electronic Access to Court Records: same time not all courts have based on five underlying prem- Ensuring Access in the Public Inter- the same resources or that ises: est,” which also includes a State-by- same level of technology, re- State discussion, current as of No- sulting in varying levels of • The traditional policy that vember 2003, available at access to records across court records are presump- (visited June 28, should be retained. 2004). See also, ABA Journal E- Report, “Florida Court Orders Re- The guidelines are intended to • Generally, access should not cords Offline” (Jan. 9, 2004) available address the concern that “the depend upon whether a court at proper balance is maintained be- record is in paper or elec- (visited Jan. 20, 2004), reporting on tween public access, personal pri- (1) a November 2003 Florida Su- tronic form. vacy, and public safety, while preme Court order limiting the acces- • The nature of certain informa- sibility of certain court records in the maintaining the integrity of the 276 Florida State courts and establishing a judicial process.” Moreover, the tion in some court records is committee on privacy and court re- guidelines seek to provide a com- such that while public access cords to work on a statewide policy to at the courthouse is main- protect privacy rights, and (2) a Butler 275CCJ/COSCA Guidelines, supra tained, remote public access County (Ohio) court order requiring note 258, at p. 1. that domestic relations cases be removed from court Internet sites. 276Ibid. 277Ibid., at p. 4.

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to the information in elec- medical or mental health records, ing what documents have been tronic form may be inappro- search warrants, investigatory filed in a case, calendars or dock- priate. files, and public employee per- ets, judgments, orders and de- sonnel records). As the guidelines crees, and liens affecting title to • The nature of the information note, the categories of restricted real property—should be made in some records is such that information vary considerably remotely accessible to the public all public access should be across the States.282 if they exist in electronic form.285 precluded unless authorized by a judge. The guidelines are intended to The guidelines also provide that • Access policies should be apply to all court records, defined by contrast, other records, to be clear, consistent, and not sub- broadly to include what is tradi- specifically identified by the ju- ject to interpretation by indi- tionally considered the “case file,” risdiction, could be made publicly vidual court or clerk other information created by the accessible only at a court facility, personnel.278 court that may or may not be in rather than remotely.286 This pro- the case file (for example, index, vision—which could be used to Consistent with the stated public docket, calendar, record of pro- protect information such as con- policies and underlying premises, ceedings), and information that tact information, Social Security the general rule, as stated in the relates to the operation of the numbers or account numbers, and guidelines, is that information in court, but not to a specific case.283 medical records (if access is not court records is accessible to the altogether prohibited)—is in- public, except as specifically pro- The guidelines provide, generally, tended to reduce the risk of nega- hibited.279 The prohibitions are for that access to public records tive impacts from public information that is not accessible should be the same for the general accessibility, while maintaining pursuant to Federal law, State law, public, the media, and the infor- traditional public accessibility at court rule, or case law (which mation industry.284 How access is the courthouse. The guidelines should be identified in the rule)280 permitted, however, may vary also identify alternative means of and information to which the court depending upon the type of infor- achieving this objective, such as has prohibited access.281 Informa- mation, and there may be excep- allowing remote access only tion included in this inaccessible tions to equal access depending through a subscription service, or category could include, for exam- upon the intended uses of the in- ple, information from types of formation. cases for which records are generally not made public (for example, For example, the guidelines pro- juvenile cases, adoption proceed- vide that the types of general in- 285Ibid., at Section 4.20. The guide- ings, mental health cases, guardi- formation in court records that lines define “remote access” as “the anship, or conservatorship have traditionally been given ability to electronically search, in- proceedings), and documents or wider public distribution―such as spect, or copy information in a court record without the need to physically information for which privacy or litigant/party indexes, listings of visit the court facility where the court security concerns may dictate con- new case filings (including party record is maintained.” Ibid., at Section fidentiality (for example, contact names), register of actions show- 3.30. The term is intended to be information of witnesses in sexual “technologically neutral,” that is, assault cases, account numbers, 282Ibid., at Section 4.60 Commen- independent of any particular technology or means of access, for example, tary. the Internet or a dial-up system such 278 Ibid., at p. 1. 283Ibid., at Section 3.00 and Com- as the Federal court’s PACER system. 279Ibid., at Section 4.10. mentary. PACER (Public Access to Court Elec- 284 tronic Records) is the automated case 280Ibid., at Section 4.60. Ibid., at Section 2.00 Commen- management information system used tary. “Public” excludes, however, 281 by the Federal courts to provide in- Ibid., at Section 4.70. This guide- court employees or agents, public formation about court cases that can line provides that requests can be agencies whose access to court re- be accessed remotely by a subscriber. made to prohibit access to information cords is defined by statute, rule, order See discussion in the “Access to court in a court record, or to permit access or policy, and parties to a case and records in the Federal courts” section to information that has been restricted, their lawyers, regarding access to the later in Part II. and the standards to be used by the court record in their case. Ibid., at court in ruling on such requests. Ibid. Section 2.00(e). 286Ibid., at Section 4.50.

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limiting remote access to one case available may be made available formation. However, existing at a time.287 for scholarly, journalistic, politi- technology and software, using cal, governmental, research, repeated queries and ‘screen The guidelines provide for public evaluation, or statistical pur- scraping,’ can accomplish bulk access to “compiled information” poses).292 The Commentary notes distribution from ‘one-case-at-a- from court records, defined as that there are dangers inherent in time’ systems fairly rapidly. The “information that is derived from permitting bulk transfers of data CCJ/COSCA Guidelines, there- the selection, aggregation or into databases beyond the court’s fore, explicitly provide for bulk reformulation by the court of control because over time, the distribution in recognition of this some of the information from information will likely become potential.”294 more than one individual court incomplete, inaccurate, stale, or record.”288 Any member of the contain information that has been While the guidelines do not ad- public may request compiled in- removed from the court’s records, dress methods for ensuring the formation that consists solely of thus requiring the court to periodi- continuing accuracy of data dis- information that is publicly acces- cally “refresh” or update the in- tributed in bulk, they note that sible, as well as information that is formation. In addition, with many States have adopted policies restricted, if requested for schol- respect to criminal conviction that allow access to one case at a arly, journalistic, political, gov- information, bulk distribution time but prohibit bulk access to ernmental, research, evaluation, or could make it impossible to im- reduce the stale information prob- statistical purposes.289 The Com- plement expungement policies.293 lem and to eliminate the need to mentary acknowledges that adopt mechanisms for periodically generating compiled data may The Commentary rejected limita- updating data. Some have also require court resources and tions on bulk access, in part on allowed bulk access for only par- compete with normal operations technology grounds: “[m]any ticular types of information, such of the court, and notes that it may states that have considered the as indexes.295 Alternatively, the be less burdensome and less costly bulk data issue for information in guidelines note that the requestor for a court to provide bulk dis- electronic form have adopted ac- of bulk information could be held tribution of the requested infor- cess policies that only allow case- responsible for the currency and mation.290 by-case access, one case at a time, accuracy of the information before The guidelines address the issue and no bulk distribution, even of making it accessible to its clients of handling requests for large vol- otherwise publicly accessible in- or the public, or the requestor umes of information in court re- could be required to inform clients cords, as opposed to requests on a 292Ibid. or the public of the limitations of case-by-case basis, under its bulk the data.296 293Ibid., at Commentary. The Com- distribution rule.291 That rule pro- mentary also notes a “counter- vides that bulk distribution, de- intuitive aspect” of bulk data release: Finally, the guidelines recognize fined as “the distribution of all, or “In order to correctly link court in- that providing access to informa- a significant subset, of the infor- formation with information from other tion in court records is not without mation in court records, as is and sources, the information vendor must cost, which must be absorbed by without modification or compila- have pieces of information that allow either the taxpayers in funding the tion,” is permitted for court re- accurate matching of court informa- courts or those requesting action about someone or an entity with cords that are publicly accessible, information from other sources. This 294 and can be requested for any pur- type of personal identifier information Ibid. pose (records that are not publicly is often the most sensitive in terms of 295Ibid. privacy. If a court were interested in 296 287 minimizing the risk of bulk data it Ibid. The guidelines also recog- Ibid., at Section 4.50 Commen- provides being incorrectly linked to nize another concern with bulk distri- tary. information from other sources, it butions; that is, the extent to which 288Ibid., at Section 4.40(a). might provide more personal identi- electronic records may be “an atypical fier information, not less, in those subset” of data from all court records, 289 Ibid., at Section 4.40(c). situations where linking is contem- because, for example, the distribution 290Ibid., at Section 4.40 Commen- plated.” Generally, court records do may include information only after a tary. not contain key linking information, certain date (when electronic records such as birth dates or Social Security became available), or only complex or 291Ibid., at Section 4.30. numbers. certain types of cases.

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cess.297 The guidelines thus pro- to limit the potential for un- In addition, if a court maintains vide that a court may charge a fee justified intrusions into the electronic records other than cal- for access to court records in elec- privacy of individuals in- endars, registers, and indexes, it tronic form, for remote access, or volved in litigation that can must provide electronic access to for bulk distribution or compiled occur as a result of remote them both remotely and at the information. The Commentary access to electronic court re- courthouse to the extent feasible, cautions, however, that any fee cords. The proposed rules but it must do so only on a case- “should not be so prohibitive as to take into account the limited by-case basis.303 effectively deter or restrict access resources currently available or create unequal access to court in the trial courts. It is con- Records in criminal and juvenile records.” templated that the rules may cases, as well as records in those be modified to provide civil cases involving family law, — Example: New rules greater electronic access as guardianships or conservatorships, governing access to the courts’ technical capa- mental health, or civil harassment, electronic records in bilities improve and with the must be available electronically at California trial courts knowledge gained from the the courthouse, but they will not experience of the courts in be available remotely; in such Following a 6-year program of providing electronic access cases, only the register of actions, guidance, the Judicial Council of under these rules.300 calendars, and indices will be California approved new rules, available remotely.304 The Advi- effective July 1, 2002, applicable The new California rules are gen- sory Committee commented that to all California superior courts erally consistent with the while it recognized the records in (that is, trial courts), and govern- CCJ/COSCA guidelines. They such cases are public records that ing public access to electronic begin with a statement of the should be available at the court- court records. As summarized by “general right of ac- house, either in paper or electronic the Judicial Council, the rules cess”―specifically, that “all elec- form, it noted that, “they often “permit broad electronic access to tronic records must be made contain sensitive personal infor- most civil records while restrict- reasonably available to the public mation [and] the court should not ing remote Internet access in in some form, whether in elec- publish that information over the criminal records and other cases tronic or in paper form, except Internet.”305 The case-by-case that are likely to contain sensitive those sealed by court order limitation does not apply to access personal information.”298 The or…made confidential by law.”301 rules are intended to “provide the They provide that if a court main- public with reasonable access to tains electronic records of certain trial court records that are main- basic information, the court must tained in electronic form, while provide electronic access to them, began, and each subsequent proceed- protecting privacy interests.”299 through both computer terminals ing in the action. Providing electronic Thus, as the Council’s Court at the courthouse and remotely access “to the extent feasible” is de- Technology Advisory Committee over the Internet, “to the extent it fined to mean the extent that a court commented: is feasible to do so.” The basic determines it has the resources and information includes “registers of technical capability to provide elec- The rules acknowledge the actions,” calendars and indexes, tronic access. Rule 2073(d). See also benefits that electronic court Rule 2077, which identifies informa- and other records in civil cases, records provide but attempt tion that must be included in calen- with certain enumerated excep- dars, indexes, and registers of actions, 302 297 tions. as well as information (such as, Social Ibid., at Section 6.00 Commen- Security numbers and victim and tary. witness information) that must be 298“New Rules Expand Public Ac- excluded. 300 cess to Electronic Trial Court Re- Ibid., Advisory Committee 303Ibid., at Rules 2073(b)(2) and cords,” News Release No. 91 (Judicial Comment. 2073(e). Council of California, Dec. 18, 2001) 301 at p. 1. Ibid., at Rule 2073(a). 304Ibid., at Rule 2073(c). 302 299California Rules of Court, Rule Ibid., at Rule 2073(b). The regis- 305Ibid., at Advisory Committee 2070(a) ter of actions is a form of docket Comment. sheet, listing the case title, the date it

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to calendars, registers of actions, appropriate notice of such condi- • use technologies that allow or indexes.306 tions, and may deny access to any continuous access 24 hours a person for failure to comply with day, 7 days per week, involve The provision that access may be them.310 Finally, the courts may little or no cost to access, and granted to an electronic record impose fees for the costs of pro- are capable of being used by (other than the register, calendars, viding public access to its elec- persons without extensive or indexes) only when the record tronic records, according to a fee technology ability.313 is identified by the case number, schedule provided by law.311 caption, or party name, and only Like many other States, Washing- on a case-by-case basis, addresses, — Example: Access to court ton’s access policies for court in part, the issue of bulk distribu- records in Washington records are in a state of flux. The tion. Bulk distribution is permitted State JISC data dissemination policy only of a court’s electronic calen- currently in effect, which governs dar, register of actions, and in- By statute in the State of Wash- access only to electronic records, dex.307 The Advisory Committee’s ington, the Judicial Information allows the public case-by-case rationale for these limitations on System (JIS) provides case man- access to “any electronic record bulk distributions is as follows: agement automation to the courts, that is a reflection of the legal and has responsibility for main- file,” including index data (i.e., These limitations are based taining the automated statewide filing date, case caption, party on the qualitative difference 312 judicial information system. By name and relationship to the case, between obtaining informa- statute, through the Judicial In- cause of action or charge, law tion from a specific case file formation System Committee enforcement agency, case number, and obtaining bulk informa- (JISC), the courts are required case outcome, and case disposition that may be manipulated to― tion date).314 In general, case- to compile personal informa- specific records in electronic form tion culled from any docu- • implement processes for mak- are available “to the extent that ment, paper, or exhibit filed ing judicial information such records in other forms are in a lawsuit. This type of ag- available electronically open to inspection by statute, case gregate information may be • promote and facilitate elec- law and court rule,” unless re- exploited for commercial or tronic access to the public of stricted by certain enumerated other purposes unrelated to judicial information the operations of the courts, at the expense of privacy • consider electronic public rights of individuals.308 access needs when planning new, or upgrades to existing, The rules permit courts to condi- information systems tion electronic access on (1) the 313 • develop processes to deter- Revised Code of Washington, user’s consent to access the re- mine which judicial informa- RCW § 2.68.050. cords only as instructed by the 314 tion the public most wants “Summary of [JISC Data Dis- court, and (2) the user’s consent to and needs semination] Policy,” available at the court’s monitoring of ac- (visited ceive information electroni- June 28, 2004). See also, JISC Data 306Ibid., at Rule 2073(e). But, as cally from the public and Dissemination Policy at Section III, noted, Rule 2077 does provide for the transmit forms, applications, available at . This JISC and transactions electroni- policy was promulgated pursuant to 307Ibid., at Rule 2073(f). “Bulk dis- cally JISC Rules, which declare “the policy tribution” is defined as distribution of of the courts [is] to facilitate public all, or a significant subset, of the access to court records, provided such 310 court’s electronic records. Ibid. Ibid. disclosures in no way present an un- 311 reasonable invasion of personal pri- 308Ibid., at Advisory Committee Ibid., at Rule 2076. vacy and will not be unduly Comment. 312Revised Code of Washington, burdensome to the ongoing business 309Ibid., at Rule 2074(c). RCW Chapter 2.68. of the courts.” JISC Rule 15.

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privacy and confidentiality poli- for the purpose of facilitating Some courts have their own rela- cies.315 profit expecting activity.319 tively extensive databases, including actual case documents, which Certain personal identifying in- The current policy also prohibits may be available electronically at formation cannot be released, such “direct downloading” of the JIS the courthouse or remotely via the as witness, juror, and party contact database, except for index items, court’s Web site. What may be information, and personal identity and such downloads are subject to available, and how, varies greatly numbers, such as Social Security a data dissemination contract.320 from court to court. numbers and bankcard num- Similarly, access of an individual bers.316 Information is also not to “compiled reports on an indi- In July 2003, the JISC proposed available on sealed cases, or those vidual,” defined as “based on infor comment a new rule address- deemed confidential, such as cases formation related to more than one ing public access to electronic relating to adoption, mental ill- case or more than one court,” information. According to the ness, juveniles, and the like.317 must be limited to the items con- statement accompanying the pro- Data for a research report may be tained in a case index.321 posed rule released for comment: provided “when the identification The rule informs and in- of specific individuals is ancillary As a practical matter, notwith- structs the courts, practitio- to the purpose of the research, the standing these JISC policies, ac- ners, and the public about data will not be sold or otherwise tual public access to court records access to court records. The distributed to third parties, and the in Washington is quite variable, eventual placement of court requester agrees to maintain the depending upon where and how records on public websites confidentiality required (e.g., use one seeks such access.322 The only necessitates the adoption of security provisions such as pass- data available remotely, through this rule. The rule was de- words and encryption, keep confi- the JIS under the policies developed with the understand- dential any identifying data, and scribed above, is basic case in- ing that courts are public agree not to copy or duplicate data formation in indexes, docket institutions and that most other than for stated research pur- sheets, and the like; images of 318 court records should be poses)… .” In addition, the poli- actual case documents are not available for public inspec- cies provide the following, with available through that system. tion whether the records are respect to the availability of “con- Moreover, access to JIS data is by obtained at the court house tact lists”: subscription, pursuant to pre- or though the internet. How- scribed fees. These same “index- Access to JIS information ever, the rule does recognize type” data are also available elec- will not be granted when to that certain court proceed- tronically at the courthouse, where do so would have the effect ings are not publicly acces- public computer terminals are of providing access to lists of sible and records from these available for access. Again, case individuals for commercial proceedings should not be documents are not available purposes, … i.e., that in con- available to the general pub- through the JIS. nection with access to a list lic.323 of individuals, the person requesting the record intends The proposed rule is generally that the list will be used to consistent with the CCJ/COSCA communicate with the indi- 319Ibid., at Section III.A.5. guidelines, providing, among viduals named in the record other things, for regulation of bulk 320Ibid., at Section III.A.2. and compiled distribution of 321 Ibid., at Section III.A.3. Individu- data.324 Although comments have als may request such a report on themselves, however, if they sign a privacy waiver. Ibid., at Section 323See Court Rules Committee’s 315 JISC Data Dissemination Policy, III.B.4. Suggested New Rule GR 31, “Access Section III.B.3. to Court Records,” available at 322We rely herein on discussions 316Ibid., at Section IV.B. 317Ibid., at Section IV.A. Dissemination Administrator in the (accessed June 28, 2004). Washington Administrative Office of 318Ibid., at Section IV.C. the Courts. 324Ibid.

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been submitted, no action has yet account numbers, and names of nology available to the been taken on the draft rules. minor children) from case docu- courts and will allow clerks’ Moreover, the policies stated in ments, whether electronic or hard offices to better and more the proposed rule may be some- copy.326 Clearly, this policy will easily serve the needs of the what ahead of the data that may require counsel and pro se liti- bar and the public.328 actually be available, at this time, gants to protect their interests, and in many Washington jurisdictions. will depend on the judicial discre- The Judicial Conference also of- tion to protect privacy and secu- fered this comment about the im- — Access to court records in rity issues as they arise in cases. pact of its policy on commercial the Federal courts But the Conference noted that the vendors: experience of Electronic Case [This policy] might also dis- As the principal policymaking Filing prototype courts has not courage the possible devel- body for the Federal court system, been problematic, and that as to opment of a ‘cottage the United States Judicial Confer- those courts that had been making industry’ headed by data re- ence has been examining issues their case file information avail- sellers who, if remote elec- related to privacy and public ac- able through the Internet using tronic access were restricted, cess to electronic case files since PACER, “there have been virtu- could go to the courthouse, 1999. In September 2001, begin- ally no reported privacy problems copy the files, download the ning with the general principle as a result.”327 The Conference information to a private that “Federal court case files, un- explained that the civil case file website, and charge for ac- less sealed or otherwise subject to policy is simple and can be easily cess to that website, thus restricted access by statute, federal and consistently applied nation- profiting from the sale of rule, or Judicial Conference pol- wide. It stated that the policy: icy, are presumed to be available public information and un- [W]ill ‘level the playing dermining restrictions infor public inspection and copy- 329 ing,” the Conference adopted a field’ in civil cases in federal tended to protect privacy. policy that it believed could pro- court by allowing attorneys vide solutions to the privacy and not located in geographic As to criminal cases, the Judicial access issues presented by the use proximity to the courthouse Conference initially recommended of electronic records and elec- easy access. Having both that remote public electronic ac- tronic communications in the Fed- remote electronic access and cess to documents in criminal eral courts.325 courthouse access to the cases should not be available, with same information will also the express understanding that the utilize more fully the tech- policy would be re-examined With respect to civil case files, the 330 Conference provided for liberal within 2 years. It based this remote electronic access to civil 326Ibid., at p. 5. The Judicial Con- recommendation on the determi- case files while providing for ference adopted a similar policy with nation that any benefits from re- some privacy protection. The respect to bankruptcy case files. mote access to criminal files Conference recommended that 327Ibid., at p. 3. As noted, PACER is would be outweighed by the documents in civil case files the fee-based electronic public access safety and law enforcement risks should be made available elec- service that allows registered users to that could be created. The Confer- tronically to the same extent that obtain case and docket information ence cited two examples of such about a particular individual or case, risks― they are available at the court- from Federal Appellate, District, and house, with two exceptions: Social Bankruptcy courts, and from the U.S. 1. Defendants and others could Security case files should not be Party/Case Index. Many courts pro- learn about cooperation and available, and litigants should be vide copies of documents in case files other activities of defendants required to modify or partially and users may conduct nationwide (such as the details of a de- redact certain “personal data iden- searches to determine whether or not a party is involved in Federal litigation. tifiers” (such as, Social Security Currently, through PACER, most 328 numbers, dates of birth, financial Federal courts are available on the Judicial Conference Committee Internet. See report, supra note 271, at p.3. 329 (visited Apr. 5, report, supra note 271, at p. 1. 2004). 330Ibid., at p. 4.

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fendant’s involvement in the tion was to allow such access in ment,” the U.S. District Court for government’s case) and that certain “high profile” cases; that the District of Columbia will such information could be is, “where demand for copies of make transcripts of courtroom used to intimidate, harass, and documents places an unnecessary proceedings in criminal cases, as possibly harm victims, defen- burden on the clerk’s office.” In well as civil proceedings, avail- dants, and their families. such cases, remote access would able electronically.336 be allowed only if the parties have 2. Routine remote access to consented to such access, and the 3. Access to corrections criminal files could inadver- presiding judge finds that such tently increase the risk of department records access is warranted by the circum- unauthorized public access to stances.334 The second modifica- In addition to information main- preindictment information, tion was to create a pilot program tained in Federal and State reposi- such as unexecuted arrest and to allow selected courts that had tories and the courts, criminal search warrants, which could provided remote public access to justice record information also is severely hamper and com- criminal case files prior to the held by Federal, State, and local promise investigative and law conference adoption of the prohi- corrections departments and facili- enforcement efforts and pose bition to return to that level of ties. While these records focus on a significant safety risk to law access for the purpose of studying facts concerning current or past enforcement officials.331 those courts and their experi- incarceration in particular facili- ence.335 ties, they can also include infor- Notwithstanding this recommen- mation about an offender’s dation, the Conference empha- On January 15, 2004, the Admin- offenses, court appearances, post- sized that opinions and orders (as istrative Office of the U.S. Courts incarceration supervision (proba- determined by the court) and announced that seven Federal tion, parole, community service, criminal docket sheets would still courts were participating in a pilot etc.) or release, as well as personal be available through court Web program to make transcripts of information. sites, PACER, and PACERNet, courtroom proceedings available and that the recommendation online. As part of this “experi- The availability of records main- would be reconsidered “if it be- tained by the Federal Bureau of comes evident that the benefits of Prisons (BOP) is governed by the 334 public remote access significantly This modification arose out of a Privacy Act, the Freedom of In- outweigh the dangers to victims, temporary exception to the prohibition formation Act (FOIA), and related on remote access to criminal case files defendants and their families, and Justice Department regulations. law enforcement personnel.”332 that had been prompted by the high number of media and public requests The primary information made for copies of documents in the terror- available to the public is through In March 2002, the Judicial Con- ist case of U.S. v. Moussaoui, now the BOP’s “Inmate Locator,” ference adopted two modifications pending in the U.S. District Court for which is available online. By en- to the prohibition on remote pub- Eastern District of Virginia. See Ad- tering a first and last name, or a ministrative Office of the U.S. Courts, lic access to electronic criminal prisoner identification number,337 case files.333 The first modifica- “Judicial Conference Approves Pilot Program for Remote Public Access to anyone can obtain limited infor- Criminal Case Files,” News Release mation about individuals who 331Ibid. The Conference noted that (Mar. 13, 2002) available at have been Federal inmates at any (visited Apr. 5, solve the problem because the mere 336 fact that a document is sealed would 2004). See Administrative Office of the signal probable defendant cooperation 335 U.S. Courts, “Pilot Project Makes Ibid. The pilot program included Court Transcripts Available Onlline,” or covert law enforcement activities. 11 courts, including the U.S. District Ibid., at pp. 4–5. available at Court for the District of Columbia. (visited Jan. 15, 2004). Courts, “Eleven ‘Pilot’ Courts Se- 333“Limited Exception to Judicial lected for Remote Public Access to 337This can be the inmate’s Federal Conference Privacy Policy for Crimi- Criminal Cases Files,” News Release Register number, the District of Co- nal Case Files,” available at (May 7, 2002), available at lumbia Department of Corrections (visited Apr. 5, 2004). /pilotcts.pdf> (visited June 28, 2004). number.

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time since 1982.338 The online information is available through searches, users can obtain detailed system provides the inmate’s full these systems than through the information merely by entering name; Federal BOP register num- Federal system. The availability of the first two letters of a first and ber; current age (not date of birth, the information is governed by last name. The information pro- which is nonpublic information) each State’s public records laws vided through the search includes, or the fact that the inmate is de- and related regulations. The cost for each individual matching the ceased; race; sex; projected re- and availability of corrections data search request, a photograph, ap- lease date, if known (this can in bulk varies from State to State. pearance information (race, gen- include release to another jurisdic- By way of example, a few State der, age, date of birth, weight, tion or to another sentence, not online inmate locator programs height, eye and hair color, and necessarily release into the com- are discussed below. scars, marks, and tattoos), aliases, munity); the date released (which criminal history (including of- can include release on parole or a. Florida fenses, case numbers, sentencing other correctional supervision); In keeping with its open records information, past offenses, past and the inmate’s location within policy, the Florida Department of incarceration, and supervision the BOP system.339 Additional Corrections provides several history), location within the sys- information, including offenses searchable online databases contem, release date(s), and for re- and sentencing dates, is available taining substantial amounts of leased inmates, their stated to the public only through FOIA information about inmates in the address upon release.343 Depend- requests.340 Florida Prison System.342 These ing upon the type of information, databases include: it is updated either weekly or State and local corrections de- daily. Some Florida county jails 1. the inmate population (ex- partments also make inmate in- also provide inmate information cluding those released, es- formation available to the public, online, including arrest informa- caped, on probation or parole, many by online “locators” similar tion.344 or in county jails) to that run by the Federal system.341 Although there is no uni- 2. the supervised population b. Kentucky formity, in many instances more (those on parole, probation, The Kentucky Department of Cor- work release, or other types rections provides substantial on- of “supervision”) line information about inmates in 338Inmates released before 1982 can Kentucky institutions through the be located via a written request, which 3. inmates who have been re- Kentucky Offender Online must include the inmate’s name leased after October 1997, or Lookup (KOOL) system.345 In- (including middle initial), date of birth are scheduled for release or approximate age at the time of formation about specific inmates incarceration, race, and approximate 4. inmates who have escaped can be obtained by entering a last dates in prison. from custody and have an name. In addition to photographs 339No State corrections information outstanding arrest warrant and personal appearance informa- is available through the Federal BOP, tion, the system provides aliases, even if a State inmate is housed in the 5. absconder/fugitives, consist- Federal system. ing of offenders who have ceased to make themselves 343See generally, ibid. 340See . available for supervision. 344 341 See, for example, Web site of At least 30 States have online in- Broward County Sheriff’s Office, at mate locator services. Another 18 Users can also perform a compre- , which provides States provide some amount of “of- hensive search of all five data- personal and arrest information, on fender information” via telephone or bases. individuals incarcerated in the Bro- e-mail. See, for example, a listing of ward County jail, updated every 15 State corrections departments on minutes (visited Apr. 5, 2004). Montana Department of Corrections Although several different identi- Web site at fiers can be entered in performing 345See the Kentucky Department of (visited Apr. 5, 2004). Only the (visited June 28, 2004). do not publicly offer a mechanism by (visited Apr. 5, lease of such information are K.R.S. formation. 2004). Ch. 17.150 and 61.870 et seq.

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when the offender entered the liest and latest release dates, database includes individuals cur- system, location in the system crimes (up to four), aggregate rently and formerly incarcerated (including community service, minimum and maximum sen- or under supervision by the State. and assignment to facilities other tences, parole hearing dates and The information provided online than prisons), criminal history results, and post-release supervi- includes photographs, personal (indictment numbers, crime dates, sion dates, are also provided. The information (including birthplace, offenses (up to 10), conviction Web site also explains why the marital status, dependents, citizen- dates, and location), and parole information is made available: ship, gender, ethnicity, height, hearing information. The Ken- weight, hair and eye color, skin Judiciary Law §4 provides tucky system includes only cur- tone, build, whether left- or right- that the sittings of every rently incarcerated offenders; it handed, scars, marks, or tattoos, court in the state shall be does not provide release dates, and other physical conditions), public and every citizen may information about former inmates, and “legal record” information, freely attend same. Judiciary or information about persons cur- including docket numbers, of- Law §255 and 255-b gener- rently on probation or parole.346 fenses, and sentencing informa- ally provide that court re- tion.352 c. New York cords must be kept open to the public and made avail- The New York State Department State corrections departments able upon request. of Correctional Services provides generally provide offender infor- an online “inmate lookup” service, mation that is limited to persons Similarly, as an agency of but it contains less information currently or formerly under State state government, the De- than either Kentucky or Florida.347 supervision. Many local jurisdic- partment must comply with Information is provided on “eve- tions similarly provide inmate [the] Freedom of Informa- ryone sentenced to State prison information about offenders who tion Law (FOIL) and can since the early 1970s,” except are, or have been, in their jails. only withhold documents youthful offenders and persons For example, while the State of that are exempted from dis- whose convictions have been set California does not provide state- closure as provided in Public aside by a court.348 According to wide offender information to the Officers Law §87. Except for the Department of Correctional public on the Internet, the Los information that is specifi- Services’ Web site, information is Angeles County Sheriff’s De- cally made confidential, such provided on former inmates “pri- partment provides information as youthful offender records, marily so an inquiry regarding a about offenders in its facilities.353 all conviction and sentence released inmate results in a posi- Entering a first and last name pro- plus other information about tive result telling when and why duces personal information (sex, offenders presently and pre- the inmate was released.”349 race, date of birth, age, hair and viously incarcerated with the Department is considered The New York inmate database public information and there- can be accessed by entering a par- outside entities for a nominal charge fore accessible under tial or full last name. The personal per record plus a $100 cost recovery FOIL.350 information provided is limited to fee.” Montana Department of Correc- tions, Correctional Offender Network, name, sex, date of birth, and d. Montana at race/ethnicity. The custody status, The Montana Department of Cor- (visited Apr. 5, 2004). Persons interested in pur- mation online, and advertises the 346Ibid. chasing the entire database must sign availability of its entire offender a database use agreement. Ibid. 347 351 See database for a fee. The Montana 352 (visited Apr. 5, 2004). (visited June 29, 2004). 348Ibid., at Ibid. Relevant statutes governing availabil- (visited Apr. 5, rections’ Offender Web site states that MCA 2-6-101 et seq. and MCA 44-5. 2004). individual offender queries obtained 353See, generally, 349Ibid. on the site are free, but that the data- (visited June 28, 2004). base “is available in its entirety to

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eye color, height, and weight), as These databases, and many more FOIA statutes commonly make well as arrest information, court like them, clearly provide substan- police blotter information ex- appearance and case information, tial personal and criminal history pressly subject to open records and release information. Other information to the public. The requirements.360 However, many examples of local jurisdictions number of databases and the effi- statutes require that certain cate- that provide offender information ciency of their use by commercial gories of information be kept con- include the Shelby County Sher- vendors, while variable from ju- fidential, such as investigative iff’s Office in Memphis, Tenn.,354 risdiction to jurisdiction, is likely data, names of victims, Social and the McCracken County Jail in to increase. Security numbers, and the like.361 Kentucky,355 both of which provide online arrest and other data 4. Access to local police While police blotter information is concerning the individuals held in department records theoretically available to the pub- their respective jails. lic, as a practical matter, in some Original records of entry into the instances it may not be easy to 362 Finally, many States and local criminal justice system — collo- obtain. The ease of obtaining jurisdictions also provide informa- quially referred to as “police blot- the information is likely to vary tion concerning whether an of- ters”—contain the first record of considerably from jurisdiction to fender is in custody through the an individual’s arrest. Police blot- jurisdiction. As discussed previ- Victim Information and Notifica- ters typically include, at a mini- ously, however, some local juris- tion Everyday (VINE) system. mum, the name, age, sex, and race dictions make police blotter-type Accessible by telephone, this sys- of persons arrested, along with arrest information available in tem was intended to provide a citations to alleged offenses. This online databases. vehicle for crime victims to regis- information, usually organized ter with the sponsoring jurisdic- chronologically and maintained on B. Regulation of the tion to be notified automatically a local level, has traditionally practices of when an offender is released, been publicly available, and re- 357 commercial vendors transferred, or escapes. Anyone mains so today. can access the system to obtain The second category of laws that offender information, however, By and large, police blotter data impact the commercial vendor even if they do not wish to register are exempted from State statutes to be notified of custody changes. that protect criminal history in- 358 nal justice agencies, compiled chrono- The available information typi- formation. Similarly, such data logically and required by law or long cally includes, at a minimum, the are exempted from the U.S. DOJ standing custom to be made public, if offender’s name, date of birth, regulations designed to protect the such records are organized on a race, gender, custody status, and confidentiality of criminal history chronological basis.”). 359 where the inmate is being held. At information. In addition, State 360See, for example,, Cal. Govt. least 30 States make the VINE Code § 6254(f); Fla. Stat. Ch. 119.001(3)(c); 5 Ill. Comp. Stat. system accessible via the Internet 357See, generally, Robert R. Belair, through a searchable database 160/4a (arrest reports must be made Original Records of Entry, Criminal available to the news media); Minn. known as “Vinelink” provided by Justice Information Policy series, NCJ 356 Stat. § 13.82; R.I. Gen. Laws § 38-2- Appriss. 125626 (Washington, D.C.: U.S. De- 2(4)(D). partment of Justice, Bureau of Justice Statistics, November 1990) at pp. 5– 361See, for example, Fla. Stat. Ch. 11, 16–37. 119.07(f)(1). 354 See Shelby County Sheriff’s Of- 358See, for example, Mass. Gen. 362See, for example, Reporters’ fice Web site at Laws Ann. Ch. 6 § 172 (exempting Committee for Freedom of the Press, (visited June 28, 2004). other similar records compiled Records Laws to the Test,” The News 355See McCracken County Jail Cur- chronologically, provided that no Media & the Law, Vol. 24, No. 4 (Fall rent Inmate Listing at alphabetical arrestee, suspect, or simi- 2000) available at lar index is available to the public, (visited June 28, 2004). directly or indirectly”); Hawaii Rev. /foi-fivemore.html> (reporting on Stat. Ch. 846-8. surveys in Oklahoma, Maryland, Min- 356 See (vis- 359 nesota, Oklahoma, California, and ited June 28, 2004). 28 C.F.R. § 20.20(b)(2) (exempts Iowa) (visited June 28, 2004). “police blotters maintained by crimi-

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industry consists of statutes that most comprehensive measures wise in connection with a legiti- regulate the practices of commer- regulating the privacy of personal mate business need in a transac- cial vendors selling criminal jus- information in the private section involving the consumer or tice information. The principal tor.364 Despite the name of the pursuant to written instructions of statute in this area is the Federal Act, it regulates far more than the consumer. Reports can also be Fair Credit Reporting Act credit information. The purpose of provided in connection with firm (FCRA), which regulates the pro- the FCRA is to promote the accu- offers of credit or insurance.367 A duction of consumer reports, in- racy, fairness, and privacy of per- consumer reporting agency’s cluding criminal background sonal information held and communication of information, checks, by consumer reporting distributed by consumer reporting which is used, expected to be agencies for various permissible agencies. Among other things, the used, or collected in whole or in purposes, including employee and FCRA regulates the use of crimi- part for a permissible purpose, is tenant screening.363 The primary nal justice information by con- known by the FCRA-defined focus of the FCRA is the com- sumer reporting agencies for term, “consumer report.”368 mercial vendor (that is, the con- employment, credit, and certain sumer reporting agency), although other purposes. As noted, its The FCRA, which was substan- the FCRA also imposes some ob- restrictions do not apply to an tially amended in 2003, includes a ligations on employers and other end-user who obtains criminal wide range of safeguards for con- users of consumer reports (the justice information directly from sumers, including notice to con- FCRA does not, however, apply to government sources, or from a sumers; consent, including end-users who obtain the records third party that does not fit within opportunities for opt-in/opt-out; directly from a government the FCRA’s definition of a con- accuracy, relevance, and timeli- agency for their own use). sumer reporting agency. ness standards; confidentiality and use safeguards; security expecta- In addition to the Federal statute, As defined in the FCRA, con- tions; consumer access and cor- many States have adopted their sumer reporting agencies are or- rection rights; content restrictions; own “mini” FCRA statutes. Both ganizations that, for a fee or on a and remedies, including adminis- Federal and State consumer re- cooperative nonprofit basis, are in trative sanctions and private rights porting laws provide a number of the practice of assembling or of action. The Act establishes ob- safeguards for individuals, par- evaluating personally identifiable ligations for consumer reporting ticularly in cases where the report information obtained from third agencies as well as for their cus- is to be used in whole or in part parties and bearing upon a con- tomers—the end-users of con- for an employment determination. sumer’s credit worthiness, charac- sumer reports. The discussion In some cases, State laws provide ter, reputation, personal below highlights those obligations significant additional protections characteristics, or mode of liv- that are particularly relevant to beyond those found in the Federal ing.365 This, of course, includes criminal justice information and law. criminal justice information. consumer reports, including background checks that are provided 1. The Federal Fair Credit Under the FCRA, a consumer for employment screening pur- Reporting Act reporting agency may provide poses. such information to a party only The Fair Credit Reporting Act of when the agency has reason to a. Obligations of consumer 1970, as amended, is one of the believe the party will use the re- reporting agencies under port for a “permissible purpose” FCRA 363 366 Although not obvious from the as defined in the FCRA. These Consumer reporting agencies rely statute’s name, as addressed further in purposes include making a deter- upon the representations of their this section, the FCRA and the con- mination on credit, employment, sumer privacy protections contained customers concerning the intended within it regulate not only the report- insurance underwriting, or other- permissible purposes for the re- ing of credit information, but also the quested information. Agencies use and reporting of criminal justice must have a reasonable basis for 364 information by consumer reporting 15 U.S.C. § 1681 et seq. agencies, which perform much of the 365Ibid., at § 1681a(f). 367Ibid. background screening that is done for employment and related purposes. 366Ibid., at § 1681b. 368Ibid., at § 1681a(d).

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this reliance but they do not oth- also approved as an employment In most cases, a consumer report- erwise have to verify or audit the purpose a State licensing board’s ing agency may not report nega- representation. Accordingly, the receipt of a consumer report in tive information that is more than FCRA requires the agencies to order to evaluate an applicant for 7 years old, including arrest in- maintain “reasonable procedures” a professional license.374 An em- formation, although the time limit designed to limit the furnishing of ployer may not obtain a consumer is 10 years for bankruptcies.378 consumer reports to the purposes report on a former employee, or The FCRA imposes no time re- permitted under the Act; these on someone other than the subject strictions on the reporting of procedures require prospective of its decisionmaking, such as the criminal convictions or on the use users of the information to iden- relatives of an employment appli- of favorable or neutral informa- tify themselves, certify the pur- cant.375 tion.379 While reports may not poses for which the information is include adverse information be- sought, and certify that the infor- Under the FCRA, a consumer yond the specified time periods, mation will be used for no other reporting agency that furnishes a reports are not required to include purpose.369 The consumer report- consumer report for employment adverse information for the entire ing agency must also make a rea- purposes containing public record designated periods.380 Notably, sonable effort to verify the information—including criminal however, the reporting restrictions identity of new prospective users justice records—which is “likely do not apply if the consumer re- and the intended uses certified by to have an adverse effect upon a port is requested in connection such new users.370 Finally, in pre- consumer’s ability to obtain em- with, among other things, em- paring a consumer report, a con- ployment,” must either (1) notify ployment of any individual at an sumer reporting agency must the consumer at the time of the annual salary reasonably expected follow reasonable procedures to report that public record informa- to equal $75,000 or more.381 ensure maximum possible accu- tion is being reported to the poten- racy of the information included tial employer, or (2) “maintain When corresponding with a con- in the report.371 strict procedures” to ensure that sumer, a consumer reporting the information is complete and agency must enclose a summary Under the FCRA, a consumer up to date.376 Public record infor- of the consumer’s rights under the report may be furnished for “em- mation relating to arrests, indict- FCRA.382 If requested by a con- ployment purposes,” which is ments, convictions, suits, tax sumer, the consumer reporting defined to mean “evaluating a liens, and outstanding judgments agency must provide the con- consumer for employment, pro- is considered up to date if the re- sumer with a copy of that con- motion, reassignment or retention port reflects the public record sumer’s file, as well as a listing of as an employee.”372 The definition status of the item as of the time of everyone who has requested it has been interpreted broadly to the report.377 recently.383 The cost to the con- include, for example, employers sumer of obtaining the report may who are: merely considering the possibility of terminating an em- 378Ibid., at § 1681c(a). ployee; investigating allegations Official Staff Commentary § 604(3)(B) item 1; Isaac, FTC Informal 379Some State statutes are more re- of workplace wrongdoing against Staff Opinion Letter, Feb. 23, 1998; strictive. a current employee; hiring inde- FTC Official Staff Commentary § 380FTC Official Staff Commentary, pendent contractors; or, determin- 603(h) item 2; Brinckerhoff, FTC 16 C.F.R. § 605.4. ing whether a contractor’s Informal Staff Opinion Letter, July employee should have a security 24, 1986. 38115 U.S.C § 1681c(b)(3). Some 373 clearance. At least one court has 374Hoke v. Retail Credit Corp., 521 State statutes have more restrictive F.2d 1079 (4th Cir. 1975), cert. de- requirements. nied, 423 U.S. 1087 (1976). 38215 U.S.C. § 1681g. 369 Ibid., at § 1681e(a). 375 FTC Official Staff Commentary, 383Ibid. The agency must identify all 370 Ibid. § 604(3)(B) item 2; Zamora v. Valley end-users who requested the con- 371 Federal Savings & Loan Ass’n, 811 F. sumer’s report for employment pur- Ibid., at § 1681e(b). th 2d 1368 (10 Cir. 1987). poses during the 2-year period prior to 372 Ibid., at § 1681a(h). 37615 U.S.C. § 1681k(a). the consumer’s request, and those 373 requested for other purposes only See Grimes, FTC Informal Staff 377Ibid. during the prior year. Ibid. Opinion Letter, Oct. 23, 1985; FTC

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not exceed $9, and, in many cases, for other purposes. In addition, the decision that adversely affects a may be free to the consumer.384 end-user must also provide notice current or prospective employee, to the consumer if it takes an ad- including termination, denial of Consumers are permitted to re- verse action against the consumer, promotion or job transfer, or even quest a correction of information based in whole or in part on the denial of a security clearance for a they believe to be inaccurate, and contents of the consumer report. government contractor’s em- the consumer reporting agency The adverse action notice must ployee.392 As the above certifica- must investigate unless the dispute include the name, address, and tion obligations indicate, before is frivolous.385 The agency must telephone number of the consumer taking any adverse action in reli- send a written investigation report reporting agency, a statement that ance upon information in the con- to the individual and a copy of the the consumer reporting agency did sumer report, the end-user must revised report, if changes were not make the decision to take the provide the consumer with a copy made; the consumer may request adverse action, and a notice of the of the consumer report and the that corrected reports be sent to consumer’s right to dispute the summary of rights.393 This “pre- recent recipients and, if the dispute accuracy or completeness of any adverse action” notice is intended is not resolved in the consumer’s information furnished by the con- to give the consumer the opportu- favor, the consumer has the option sumer reporting agency.389 nity to review the report for accu- of including a brief statement in racy and completeness before the his or her file, typically for distri- In the employment context, an employer makes a final decision. bution with future reports. 386 A employer or potential employer In addition to these pre-adverse consumer reporting agency must has additional obligations. The action disclosures, if an adverse remove or correct unverified or employer or potential employer action does occur, based in whole inaccurate information in its files, must notify and obtain consent or in part upon information in the typically within 30 days after the from the employee or applicant consumer report, the employer consumer disputes the informa- before seeking a consumer report must still provide the notice of tion.387 from a consumer reporting agency adverse action. for an employment purpose.390 A Consumers may sue for willful or consumer reporting agency may 2. State consumer negligent violations or seek assis- not furnish an end-user with a reporting statutes tance from the U.S. Federal Trade report for employment purposes Commission and other Federal unless the end-user first certifies Approximately one-half of the agencies responsible for the en- to the agency that (a) it has dis- States have their own fair credit forcement of the FCRA.388 closed to the consumer that a con- reporting statutes. Many include sumer report may be obtained for provisions similar to those in the b. Obligations of end-users employment purposes; (b) the Federal FCRA, but some are even under FCRA consumer has authorized in writ- more restrictive. An end-user of information ob- ing the procurement of the report; tained from a consumer reporting and (c) prior to taking any adverse State law is fully preempted with action based in full or in part on respect to certain specified FCRA agency also has obligations under 394 the FCRA. The end-user must, for the consumer report, the employer provisions. In the case of FCRA example, certify to the consumer will give the consumer a copy of provisions that are not fully pre- reporting agency that the end-user the report along with the summary empted, State law is preempted has a permissible purpose to ob- of the consumer’s rights under the only to the extent that it is incon- 391 395 tain the report. The end-user is FCRA. sistent with the FCRA. This has prohibited from using the report been interpreted to mean that State In the employment context, “adverse action” includes denial of 392 384Ibid., at § 1681j. employment or any employment Ibid., at § 1681a (h) and (k); FTC Official Staff Commentary, § 603(h), 385 Ibid. item 2. 386Ibid. 389Ibid., at 1681m. 393Ibid. 387Ibid. 390Ibid., at § 1681b. 39415 U.S.C. § 1681u. 388Ibid., at §§ 1681n, 1681o, 1681s. 391Ibid. 395Ibid.

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law is preempted only when com- from that set in the FCRA. tion directly without using a con- pliance with an inconsistent State Whereas the FCRA imposes the 7- sumer reporting agency.402 law would result in violation of year restriction on the reporting of the FCRA.396 In general, there is arrest information if the expected C. Regulation of no inconsistency if the State law is salary is less than $75,000, the 397 information that end- more protective of consumers. laws in at least four States impose users, particularly the 7-year restriction on the re- Many State fair credit reporting porting of arrests only if the em- employers and laws impose obligations on credit ployee or applicant is expected to landlords, can use to reporting agencies and end-users earn less than $20,000 per year.400 make employment that differ from those imposed by Unlike the FCRA, these States and housing the FCRA without being inconsis- also impose the 7-year restriction decisions tent, making compliance with all limit on the reporting of convic- applicable laws complicated. For tions if the expected salary is less The third category of law, which example, in at least four States than $20,000. indirectly impacts the commercial (California, Montana, Nevada, vendor industry, consists of regu- and New Mexico), a consumer Some State laws also impose dis- lation of the ability of end-users, reporting agency may not report closure requirements that differ particularly employers and land- convictions that are more than 7 from those in the FCRA. For ex- lords, to consider certain criminal years old, even though the FCRA ample, in some States, employers justice information in the course imposes such a time restriction must provide employees/ appli- of making decisions that impact only on the reporting of arrests, cants with a copy of the consumer the individual.403 End-users cus- and has no limitation on convic- report they obtain for employment tomarily enjoy considerable lee- tions.398 Also, unlike the FCRA, purposes, regardless of whether way in making decisions on the California, New Mexico, and New they take any adverse action in basis of criminal justice informa- York preclude the reporting of reliance upon the report.401 In ad- tion, unless there is a specific pro- arrests that do not result in convic- dition, California requires end- hibition in law. Laws in this tions.399 users, including prospective or category include equal employ- current employers, to disclose to ment and fair housing laws at the In addition, some States set the the consumer any information Federal, State, and local level. employee’s expected salary level, gathered on the person’s charac- Commercial vendors can provide which governs the applicability of ter, general reputation, personal additional value for end-users by time limits on reporting arrest characteristics, or mode of liv- providing guidance and by tailor- information, at levels differing ing―including criminal justice ing their reports to account for information―even if the em- these laws.

396 ployer itself obtains the informa- See FTC Official Staff Commen- 1. Regulation of tary, § 622.1. 400 employers’ access to 397 Kan. Stat. Ann. §§ 50-704(a)(5) The FCRA also includes certain criminal justice specific preemption provisions that & (b) (Kansas); Md. Code Ann. §§ override any State law that differs 14-1203(a)(5) & (b)(3) (Maryland); information from the Federal provision, regardless Mass. Gen. Laws 93 §§ 52(a)(5) & of its consistency with the FCRA, (b)(3) (Massachusetts); N.H. Rev. On the Federal level, Title VII of Stat. Ann. §§ 359-B:5(I)(e) & 5(II)(c) 404 depending upon when the State law the Civil Rights Act of 1964 was enacted. See, for example, 15 (New Hampshire). New York sets the prohibits discrimination on the U.S.C. § 1681t(b)(1). salary level at $25,000 (N.Y. Gen. Laws §§ 380-j(f)(1)(v) & basis of factors such as race, 398Cal. Civ. Code § 1786.18(a)(7) (j)(f)(1)(iii)), and Texas sets it at color, sex, religion, and national (California); Mont. Code Ann. § 31-3- $75,000 (Tex. Bus. & Com. Code 112(5) (Montana); Nev. Rev. Stat. Ann. §§ 20.05(a)(4) & (b)(3)). 402Cal. Civil Code § 1786.53. 5698C.150(2) (Nevada); N.M. Stat. 401 Ann. § 56-3-6(a)(5) (New Mexico). See, for example, Cal. Civil Code 403The obligations imposed on end- § 1786.20(a)(2) (California); 20 Ill. 399 users by the FCRA and corresponding Cal. Civ. Code § 1786.18(a)(7) Comp. Stat. Ann. 2635/7(A)(1) (Illi- State statutes are discussed in the (California); N.M. Stat. Ann. § 56-3- nois); Minn. Stat. § 13C.03 (Minne- previous section. 6(a)(5) (New Mexico); N.Y. Bus. Law sota); Okla. Stat. Tit. 24 § 148 § 380-j(a)(1) (New York). (Oklahoma). 40442 US.C. § 2000e et seq.

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origin. The Equal Employment a “zero tolerance” policy), is a certain circumstances, and the Opportunity Commission (EEOC) violation of Title VII.407 employer can rebut a discrimina- and several courts have found that tion allegation by demonstrating in the employment context, inquir- More significantly, many State that the inquiry is job-related and ies about arrest records can be a laws expressly prohibit employers therefore permissible. violation of Title VII,405 although from inquiring about a candidate’s inquiry into and decisions based arrest or conviction record, or State laws that include blanket on convictions are easier to jus- severely limit the extent of per- prohibitions on employers’ inquir- tify. Under Federal law, an em- missible inquiry, even if there is ies about arrest or conviction re- ployer may consider a potential no evidence that the employer’s cords generally do not provide employee’s criminal convictions, inquiry will lead to unlawful em- such leeway, however.409 Several and deny employment based on ployment discrimination.408 In this States, such as California, Illinois, them, provided the employer can sense, the State equal employment Massachusetts, Michigan, New establish a legitimate business laws are far more restrictive than York, and Rhode Island, explicitly purpose for doing so.406 However, the parallel Federal law, because prohibit employer inquiries about in determining whether to con- as Title VII has been interpreted arrest records.410 In addition, sider arrest records in an employ- and applied, an employer’s use of many States have issued adminis- ment decision, an employer must criminal justice information can trative guidance to the same ef- consider not only the relationship constitute discrimination, or have fect: Arizona, Colorado, Kansas, of the charges to the position a discriminatory impact, only in Nevada, New Hampshire, New sought, but also the likelihood that Jersey, Ohio, South Dakota, Utah, the applicant actually committed and West Virginia.411 Other 407 the offense charged. In light of See, for example, Marshall v. Klas- sen, 1977 US Dist Lexis 17375 (S.D. this fact, and because some minor- 409 ity groups may be arrested more Ind. 1977); Green v. Missouri Pacific See, generally, Littler Mendelson, Railroad Co., 523 F.2d 1290 (8th Cir. The 2003–2004 National Employer on often than others, courts have 1975). See also, International Broth- Compact Disc (February 2003) at Vol. found that the use of arrest records erhood of Teamsters v. United States, II, pp. 1105–1130, “Reference Table – in employment decisions has a 431 U.S. 324 at 336 n. 15 (1977) State Privacy & Statutory Individual disproportionate or “disparate” (Disparate impact results from the use Rights.” Hereafter, Littler Mendelson effect on the employment oppor- of “employment practices that are CD. tunities of the members of these facially neutral in their treatment of 410 different groups but that in fact fall See Cal. Lab. Code § 432.7(a); groups. As a result, a blanket pol- more harshly on one group than an- 775 ILCS 5/2-103; Mass. Gen, Laws icy that an arrest record is an ab- other and cannot be justified by busi- ch. 151B 4(9)(ii); Mich. Comp. Laws solute bar to employment (that is, ness necessity; proof of motive is not § 37.2205(a)(1) (prohibits inquiries required.”) A decision on the use of into misdemeanor arrests only); N.Y. an arrest record in making an em- Exec. Law § 296(16); R.I. Gen. Laws § 28-5-7(7). ployment decision must be based upon an individual analysis that con- 411See Labor Policy Association, 405 See, for example, 29 C.F.R. § siders (1) the nature and gravity of the “Reauthorization of the Fair Credit 1607.4(c)(1); Gregory v. Litton Sys., offense, (2) the time that has passed Reporting Act,” Memoranda (Jan. 17, 316 F. Supp. 401 (C.D. Cal. 1970), since the arrest occurred, and (3) the 2003) at p. 20 (hereafter, LPA FCRA th aff’d as modified, 472 F.2d 631 (9 nature of the job held or sought. memoranda), citing Arizona Civil Cir. 1972) (fact that an individual Green v. Missouri Pacific Railroad Rights Division’s Pre-Employment th suffered a number of arrests without Co., 549 F.2d 1158, 1160 (8 Cir. Guide; Colorado Civil Rights Com- any convictions was not conclusive as 1977). mission guidelines on pre- to wrongdoing and was irrelevant to 408 employment inquiries; Kansas Human work qualifications and, because the The EEOC has issued guidance that appears to condone State bans on Rights Commission’s Guidance on mere inquiry into arrest records tends Equal Employment Practices; Nevada to have a chilling effect on minority inquiries, even though the Commis- sion also acknowledges that arrest Pre-Employment Inquiry Guide; New job applicants, inquiries about arrests Hampshire Commission for Human may violate Title VII). information can be pertinent to hiring decisions. See “Equal Employment Rights guidelines; New Jersey Guide 406See, for example, Green v. Mis- Opportunity Commission Policy to Pre-employment Inquiries; Ohio Civil Rights Commission’s “A Guide souri Pacific Railroad Co., 523 F.2d Guidance on the Consideration of 1290 (8th Cir. 1975); Carter v. Galla- Arrest Records in Employment Deci- for Application Forms and Inter- gher, 452 F.2d 315 (8th Cir. 1971), sions Under Title VII 5-6 and 9” views”; South Dakota Division of cert. denied, 406 U.S. 950 (1972). (1990). Human Rights Pre-employment In- quiry Guide; Utah Industrial Commis-

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States, such as Idaho and Mis- (such as misdemeanor drunken- the applicant would involve an souri, permit arrest inquiries only ness, simple assault, speeding, unreasonable risk to property or to if the employer shows business minor traffic violations, or dis- the safety or welfare of individu- necessity.412 turbing the peace), as well as other als or the public.419 misdemeanor convictions if the Some States are even more restric- conviction, or completion of in- 2. Regulation of tive by imposing limits on em- carceration resulting from it, oc- landlords’ access to ployers’ inquiries into conviction curred 5 or more years earlier, criminal justice records. For example, the District unless the person has been con- information of Columbia, Alaska, and Ohio victed of any offense within 5 prohibit inquiries into convictions years.416 These restrictions can be In the housing context, Federal, more than 10 years old.413 In addi- significant in light of the penalties State, and local law must also be tion to limiting inquiries to con- that are imposed for violations.417 considered. As noted above, under victions less than 10 years old, Federal law, public housing agen- Hawaii permits inquiry into con- Finally, some States (including cies are expressly authorized to viction records only if “the con- Missouri, New Hampshire, New obtain criminal justice information viction record bears a rational Jersey, Rhode Island, South Da- with respect to persons applying relationship to the duties and re- kota, and Utah) allow inquiries for public housing.420 Indeed, pub- sponsibilities of the position,” but into convictions only when the lic housing agencies (PHAs) and such inquiry may take place “only employer proves that such inquir- owners of federally assisted hous- after the prospective employee has ies are job-related.418 Similarly, ing are expressly required to received a conditional offer of New York law provides that an screen out prospective tenants employment, which may be with- application for employment can- who have engaged in particular drawn if the prospective employee not be denied by reason of the types of criminal activity. For has a conviction record that bears applicant’s having previously example, they must turn down an a rational relationship to the duties been convicted of a criminal of- applicant who is subject to a life- and responsibilities of the posi- fense, unless (1) there is a direct time registration requirement un- tion.”414 California prohibits in- relationship between the offense der a State sex offender quiries into marijuana convictions and the employment; or (2) hiring registration program; therefore, more than 2 years old.415 Massa- they are required to perform chusetts prohibits inquiries into “criminal history background certain first-time convictions 416Mass. Gen. Laws Ch. 151B § checks necessary to determine” 4(9)(ii). whether any household member is 417 sion, Anti-Discrimination Division For example, California imposes subject to such requirements “in Pre-employment Inquiry Guide; and a $200 fine for each violation (a the State where the housing is West Virginia Bureau of Employment minimum of $500 for an intentional located and in other States where Programs Guidelines for Pre- violation). Cal. Labor Code § household members are known to 432.7(c). These penalties can add up Employment Inquiries. Some States have resided.”421 make exceptions for particular catego- if an employer were to include an ries of employers. improper inquiry on hundreds of employment applications and a class 412 Ibid., citing the Idaho Human action were to be brought on behalf of Rights Commission Pre-employment all applicants. Inquiry Guide; Missouri Guide to Pre- 419See N.Y. Exec. Law § 296(15) 418See LPA FCRA memoranda, su- employment Inquiries. and Corr. Law § 752 pra note 411, at p. 20, citing Missouri 413 Ibid., citing Alaska Admin. Code Guide to Pre-employment Inquiries; 420See 42 U.S.C. § 1437d(q). tit. 13 § 68.310(b)(3); District of Co- New Hampshire Commission for 421 lumbia Code Ann. § 2-1402.66; Ohio Human Rights guidelines; New Jersey 24 CFR § 882.518(a)2; see also Civil Rights Commission’s “A Guide Guide to Pre-employment Inquiries; 24 CFR §§ 5.856, 960.204. PHAs for Application Forms and Inter- Rhode Island Commission for Human must also deny admission to an appli- views.” Rights Guidelines; South Dakota Di- cant who has “ever been convicted of drug-related criminal activity for 414 vision of Human Rights Pre- Haw. Rev. Stat. § 378-2.5; Ha- manufacture or production of meth- employment Inquiry Guide; and Utah waii Civil Rights Commission Guide- amphetamine on the premises of fed- line for Pre-Employment Inquiries. Industrial Commission, Anti- Discrimination Division Pre- erally assisted housing” or who has 415Cal. Lab. Code § 432.8. employment Inquiry Guide. been evicted from public housing within the previous 3 years for drug-

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Public housing agencies are addition, before a conviction can Even outside the context of feder- authorized to obtain criminal his- be used as a basis for denying ally assisted or public housing tory record information from the admission, enforcing a lease, or where criminal history screening National Crime Information Cen- evicting a tenant, the subject must is affirmatively required, there is ter (NCIC), FBI, State and local be given an opportunity to dispute little to discourage landlords from police departments, and other law the accuracy and relevance of the using criminal history information enforcement agencies.422 But criminal history information.425 in tenant screening. Unlike the guidance from the U.S. Depart- situation faced by employers, ment of Housing and Urban De- Under the HUD regulations, Federal fair housing law does not velopment (HUD) has made clear PHAs are required to establish preclude the use of criminal his- that they are not required to use policies, within certain guidelines, tory information in making hous- such sources, and that they can to govern how they will screen out ing-related decisions, since contract out their background applicants who have engaged in persons with criminal records do screening obligations.423 Once a criminal activities, but they have not constitute a legally protected PHA or owner obtains criminal substantial discretion in setting class.429 Indeed, the Fair Housing history records for screening pur- such policies. Thus, for example, Act explicitly provides that a poses, they must establish and in screening family behavior and dwelling need not be made avail- implement a records management suitability for tenancy, the PHA able “to an individual whose ten- system that will maintain the con- may consider “all relevant infor- ancy would constitute a direct fidentiality of the records.424 In mation,” which may include, inter threat to the health or safety of alia, “a history of criminal activity other individuals or whose ten- related criminal activity. See 24 CFR involving crimes of physical vio- ancy would result in substantial §§ 5.854, 882.518, 960.204. lence to persons or property and physical damage to the property of 430 422The NCIC, police departments, other criminal acts which would others.” and other law enforcement agencies adversely affect the health, safety, are authorized to give PHAs informa- or welfare of other tenants.”426 As a general matter, State fair tion regarding “criminal conviction The tenant selection criteria to be housing laws also do not include records” of adult applicants “for pur- established and information to be criminal record status as a suspect poses of applicant screening, lease considered must be “reasonably category on which claims of hous- enforcement and eviction.” 42 USC 1437d(q)(1)(A). To obtain access to related to individual attributes and ing discrimination may be based. such records, the PHA must require behavior of an applicant,” and not For example, the California Fair applicant families to submit a consent related to “those which may be Employment and Housing Act form signed by each adult household imputed to a particular group or recognizes discrimination only on member. See, for example, 24 CFR category of persons of which an 5.903(b). applicant may be a member.”427 If 429 423See, for example, Department of unfavorable information is ob- Title VIII of the Civil Rights Act Housing and Urban Development, tained about an applicant, “con- of 1968 (Fair Housing Act), as “Screening and Eviction for Drug amended, prohibits discrimination in sideration shall be given to the the sale or rental of dwellings based Abuse and Other Criminal Activity: time, nature, and extent of the Discussion of Final Rule,” 66 Federal on race, color, national origin, relig- Register 28776 et seq. (May 24, 2001) applicant’s conduct” and to other ion, sex, familial status (including at 28776 (“although this rule provides factors that could point to favor- children under the age of 18 living a mechanism for obtaining access to able future conduct, such as evi- with parents of legal custodians, preg- criminal records, HUD recognizes that dence of rehabilitation or nant women, and people securing custody of children under the age of many PHAs and owners may now use participation in appropriate pro- 18), and handicap (disability). 42 other means of obtaining criminal grams.428 records and may continue to use these U.S.C. § 3604. Although the catego- other means … However, HUD cau- ries of unlawful discrimination identi- tions PHAs and owners to handle any fied in the Fair Housing Act do not information obtained about criminal 425See, for example, 24 CFR § refer to criminal arrest or conviction records in accordance with applicable 5.903(f). status, in light of the disparate impact analysis that has been adopted in the State and Federal privacy laws and 426 with the provisions of the consent See, for example, 24 CFR § employment context, it is possible that forms signed by the applicants.” 960.205(b)(3). the Fair Housing Act could be inter- 427 preted to provide similar protections. 424 24 CFR § 960.203(a) See, for example, 24 CFR § 430 5.903(g). 428Ibid. 42 U.S.C. § 3604(f)(9).

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the basis of race, color, religion, ample, in Wisconsin, the Dane identity, disability or AIDS/HIV marital status, national origin, County Fair Housing Ordinance status, familial status, source of ancestry, familial status, disability provides that unlawful housing income, weight, height, or place of the person, sexual orientation, discrimination includes discrimi- of birth, persons with arrest or and age.431 Similarly, the New nation on the basis of arrest or conviction records are not pro- York Human Rights Law identi- conviction record, in addition to tected.438 fies bases of unlawful discrimina- race, gender, age, religion, color, tion in housing to include only national origin, ancestry, marital D. Negligence race, color, creed, national origin, status, family status, mental ill- doctrines that sexual orientation, military status, ness, physical condition, appear- encourage sex, age, disability, marital status, ance, lawful source of income, or familial status, although as student status, sexual orientation, employers and noted above, employment may not military discharge status, or politi- landlords to obtain be denied because of a conviction cal beliefs.435 Similarly, the cities criminal justice record unless there is a relation- of Champaign and Urbana, Ill., record information ship between the offense and the prohibit discrimination based on employment.432 In Wisconsin, prior arrest or conviction record, The judicial doctrines of negli- housing discrimination is prohib- as well as personal appearance, gence constitute an additional ited based on sex, race, color, sex- sexual preference, matriculation, incentive for users, such as em- ual orientation, disability, religion, political affiliation, or source of ployers and landlords, to conduct national origin, marital status, income.436 In contrast, New York criminal background checks in family status, lawful source of City’s Human Rights Law does order to minimize potential liabil- income, age, or ancestry.433 Even not include such a protected class, ity that may occur in the event that in the District of Columbia, which although it does preclude dis- an employee or tenant harms a has a broad Human Rights Act, crimination based on actual or coworker, customer, tenant, or housing may not be denied “for a perceived gender identity, al- member of the public. discriminatory reason based on ienage or citizenship status, age, the actual or perceived: race, and lawful occupation, among 1. Negligent hiring and color, religion, national origin, others.437 Similarly, while San retention sex, age, marital status, personal Francisco ordinances prohibit appearance, sexual orientation, discrimination in housing and Courts in the majority of States familial status, family responsi- public accommodations based on recognize the theory of negligent bilities, disability, matriculation, race, religion, color, ancestry, age, hiring, under which employers political affiliation, source of in- sex, sexual orientation, gender may be held liable for actions of their employees that are outside come, or place of residence or 439 business of any individual.”434 the scope of their employment. 435Dane County Ordinances, § The doctrine applies in cases Landlords must also comply with 31.02. The City of Appleton, Wisc., where an employer fails to exer- local fair housing ordinances, also recognizes persons with arrest or cise proper care in selecting and however. Some local jurisdictions conviction records as a protected class. See Metropolitan Milwaukee 438 have included refusals to rent to Fair Housing Council Web site at See the San Francisco Human persons with records of criminal Rights Commission Fair Housing and Public Accommodations Web site at convictions or arrests among cate- (visited Apr. 6, 2004). (visited Apr. 6, fair housing ordinances. For ex- Champaign Cooperative Housing, 2004). “COUCH and Fair Housing Laws” 439 (Nov. 12, 2002) available at See, generally, Littler Mendelson 431 See Cal. Gov. Code § 12955 et (visited Apr. 6, 2004). 235; Vol. III § 257; Robert Hunter, “Past as Prologue: Assessing Job 432 See N.Y. Exec. Law, Art. 15, § 437See, for example, the New York Candidates,” Security Management 296(5); N.Y. Corr. Law, Art. 23-a. City Commission on Human Rights Online (March 2002) available at 433Wisc. Stat. § 106.50. Web site, at (visited Apr. 6, 434D.C. Code § 2-1402-21 (a). /housing.html> (visited Apr. 6, 2004). 2004).

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retaining employees; that is, the hiring theory, the employer’s li- Some States recognize a rebutta- employer knew, or should have ability extends to an employee’s ble presumption of “due care” in known, that an employee poses a intentional torts and crimes, and hiring.444 Even with such a pre- threat to coworkers, customers, or other acts outside the scope of the sumption, however, conducting a the general public. Under this doc- employee’s job responsibilities.442 thorough pre-employment back- trine, an employer may be liable In many jurisdictions, the negli- ground check has become increas- for damages caused by that em- gent hiring theory has been ex- ingly important in protecting an ployee. panded to include the related torts employer from potential liability of negligent retention and negli- for negligent hiring.445 The tort of negligent hiring is not gent supervision, which have based on principles of vicarious similar elements, but arise at dif- liability, such as those covered by ferent points in the employment 443 ensure safety of third parties). As a the doctrine of respondeat supe- relationship. practical matter, the use of back- rior, under which an employer is ground checks to avoid potential neg- held responsible for the em- ligent retention liability is much less ployee’s acts within the scope of widespread than in connection with his or her duties, or in furtherance person into contact with an employee initial hiring, as there is great variabil- of the employer’s interests. In- whom the employer knows or should ity in the frequency with which em- have known is predisposed to com- ployers perform background checks of stead, “negligent hiring is a doc- mitting a wrong under circumstances existing employees, particularly in the trine of primary liability; the that create an opportunity of entice- absence of a specific precipitating employer is principally liable for ment to commit such a wrong”; negli- event. See, generally, Littler Mendel- negligently placing an unfit per- gent hiring claim dismissed because son CD, supra note 409, at Vol. I §§ son in an employment situation McDonald’s had no actual or con- 233–235, Vol. III § 257. structive knowledge that manager involving an unreasonable risk of 444See, for example, Fla. Stat. Ch. 440 would assault a customer)). harm to others.” Thus, in negli- 768.096 (1999) (employer presumed gent hiring cases, “the ultimate 442Some States have held that negli- not to have been negligent in hiring if, question of liability to be decided gent hiring actions cannot be brought before hiring the employee, the em- is ‘whether it was reasonable for against employers for the acts of in- ployer conducted a background inves- dependent contractors. See, for exam- tigation which did not reveal an employer to permit an em- ple, Camargo v. Tjaarda Dairy, 25 information that reasonably demon- ployee to perform his job in light Cal. 4th 1235, 1238 (2001); Kahrs v. strated unsuitability); Evans v. of information about the employee Conley, 729 N.E.2d 191 (Ind. Ct. Morsell, 395 A.2d 480 (Md. 1978). which [the] employer should have App. 2000) (court confirmed long- 445 441 See for example, Doe v. Garcia, known.’ ” Under a negligent standing rule that principal is not liable for negligence of an independent 961 P.2d 1181 (Idaho 1998) (hospital contractor, but recognized five excep- employee molested a patient; if hospi- 440J. v. Victory Tabernacle Baptist tions to that general rule: if the work tal had inquired of previous employer, Church, 372 S.E.2d 391, 394 (Va. is intrinsically dangerous, will create a his personnel file would have shown previous similar offense); Oakley v. 1988), citing Note, Minnesota Devel- nuisance, will probably cause injury opments – Employer Liability for the without due precautions, is illegal, or Flor-Shin Inc., 964 S.W.2d 438 (Ky. Criminal Acts of Employees Under if the principal is, by law, charged Ct. App. 1998) (evidence that em- Negligent Hiring Theory: Pontiacs v. with performing the specific duty); ployer knew, or would have known if K.M.S. Investment, 68 Minn. L. Rev. Giles v. Shell Oil Corp., 487 A.2d 610 it had conducted a criminal back- 1303, 1306–07 (1984) (confirms Vir- (D.C. 1985). ground check as per its established policy, of employee’s past criminal ginia’s recognition of tort of negligent 443 hiring; church knew or should have See, for example, Retherford v. record, presented issue of fact on AT&T Communications of the Moun- negligent hiring theory); Kladstrup v. known that employee, who sexually assaulted a young girl, had been contain States, Inc., 844 P.2d 949, 973 n. Westfall Health Care Center, Inc., victed of similar crime and was on 15 (Utah 1992) (tort of negligent em- 701 N.Y.S.2d 808, 811 (Sup.Ct. N.Y. probation). ployment encompasses negligent 1999) (nature of duties of nurse’s aide hiring, negligent supervision, and oblige employer “to make an in-depth 441Brown v. Zaveri, 164 F.Supp.2d negligent retention). See also Yunker inquiry to assure that an applicant … 1354, 1360 (S.D. Fla. 2001) (quoting v. Honeywell, 496 N.W.2d 419, 423 does not have a history of sexual mis- from Gillis v. Sports Auth., Inc., 123 (Minn. Ct. App. 1993) (doctrines of conduct”); Kelley v. Baker Protective F. Supp.2d 611, 617 (S.D. Fla. 2000) negligent hiring and negligent reten- Servs., Inc., 401 S.E.2d 585 (Ga. Ct. (under Florida law, employer is liable tion are distinct theories of recovery; App. 1991) (fact that background for negligent hiring/retention only difference focuses on when employer check performed on employee re- when the employer “has somehow was on notice that an employee posed vealed no convictions or propensities been responsible for bringing a third a threat and failed to take steps to for criminal behavior supported sum-

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In order to prevail on a negligent also held that performance of an Many examples of egregious hiring claim, the plaintiff must adequate or industry-accepted situations have resulted in em- prove that the employer knew or background check can insulate an ployers’ liability. For example, in should have known of the em- employer from a negligent hiring T.W. v. City of N.Y., a community ployee’s dangerous propensities claim.447 In general, the decision center custodian sexually as- and that the employer’s negli- concerning the need for, and ade- saulted a young girl. The custo- gence caused the plaintiff’s dam- quacy of, a background check dian had stated on his employment ages. Cases have held that a hinges upon the type of position at application that he had a criminal plaintiff can satisfy the first re- issue. If the position is likely to conviction, but the employer did quirement by showing evidence involve frequent contact with the not investigate the applicant’s exists that would have put the public, the bar is likely to be set criminal history, which included employer on notice, or that a more higher, although depending upon armed robbery, assault, theft, bur- thorough background check would the type of position at issue, an glary, and possession of a con- have revealed pertinent informa- adequate background check does trolled substance. The court held tion.446 Conversely, courts have not always require investigation of that because the employer knew 448 criminal history records. that the applicant had a criminal background, it had a duty to inves- mary judgment for employer on neg- 449 ligent hiring claim); Burnett v. C.B.A. tigate further. Sec. Serv., 820 P.2d 750 (Nev. 1991) employee who physically assaulted a (background check performed by customer); Ponticas v. K.M.S. Inv., Similarly, a jury awarded $3 mil- employer and sheriff’s department 331 N.W.2d 907 (Minn. 1983) (em- lion to a 55-year-old mentally revealed no indication that employer ployer liable for hiring a resident handicapped woman who had would commit offense); Welsh Mfg. v. apartment manager with a violent been raped by a bus driver. The Pinkerton’s, Inc. 474 A.2d 436 at 441 criminal background who raped a (R.I. 1984) (security service employee driver had been hired, without a tenant living in the apartment); criminal background check, to assisted thieves in robbery; court Gaines v. Monsanto Co., 655 S.W.2d found that “background checks in 568 (Mo. Ct. App. 1983) (parents of transport handicapped persons. It these circumstances should seek rele- murdered woman sufficiently alleged turned out that he had been previ- vant information that might not oth- a cause of action for negligent hiring ously convicted of robbery, reck- erwise be uncovered. When an or retention of a mail clerk, a con- employee is being hired for a sensitive less driving, concealment of a victed rapist). occupation, mere lack of negative firearm, and possession of mari- evidence may not be sufficient to 447See, for example, C.C. v. Road- juana. The victim based her discharge the obligation of reasonable runner Trucking, Inc., 823 F.Supp. claims against the bus company care.”). 913 (D.Utah 1993), affirming Magis- on several theories, including neg- 446 trate’s Decision reported at 1993 U.S. ligent hiring, arguing that the bus See, for example, Murray v. Re- Dist. Lexis 7251(background check of company should have performed a search Found. of State Univ. of N.Y., type usually performed in trucking 707 N.Y.S. 2d 816 (N.Y. Sup. Ct. industry was performed and deemed criminal background check on the 2000), aff’d 283 A.D.2d 995 (N.Y. driver. The U.S. Court of Appeals th adequate, in case in which truck driver App. Div. 4 Dept. 2001) (necessary raped hitchhiker); Gay v. United element of a cause of action for negli- States, 739 F.Supp. 275 (D. Md. Furniture Co. v. Harrison, 583 So.2d gent hiring is that employer knew or 1990) (employer had conducted thor- should have known of employee’s 744, 750 (Fla. Dist. Ct. App. 1991) ough background check; assault was (employer’s responsibility to investi- propensity for the conduct that caused unpredictable, out of character, and injury; proof can include evidence gate employee’s background is de- could not reasonably have been an- fined by the type of work to be done); that more thorough background check ticipated or guarded against by em- would have uncovered such informa- Ponticas v. K.M.S. Inv., 331 N.W.2d th ployer); Connes v. Molalla Transport 907, 913 (Minn. 1983) (employer’s tion); Evan F., 8 Cal. App. 4 828 System, Inc., 831 P.2d 1316 (Colo. (1992) (in California, employer can be liability for negligent hiring is deter- 1992); Burnett v. C.B.A. Sec. Serv., mined by the totality of circumstances held liable for negligent hiring if he 820 P.2d 750 (Nev. 1991). knows the employee is unfit, or has surrounding hiring and whether em- reason to believe employee is unfit, or 448See, for example, Connes v. Mo- ployer exercised reasonable care). fails to use reasonable care to discover lalla Transport System, Inc., 831 P.2d See, generally, Littler Mendelson CD, the employee’s unfitness before hiring 1316, 1320-23 (Colo. 1992) (trucking supra note 409, at Vol. I §§ 233–235; him); Abbot v. Payne, 457 So. 2d company had no duty to conduct in- Vol. III § 257. 1156 (Fla. Dist. Ct. App. 1984) (com- vestigation of driver’s criminal history 449T.W. v. City of N.Y., 286 A.D.2d pany found liable for negligent hiring because level of required investigation 243 (N.Y. App. Div. 1st Dept., Sep- because it failed to inquire into the depends on type of work and antici- tember 2001). past employment or references of an pated potential contact with public);

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for the Fourth Circuit upheld the a claim could succeed under gen- Thus, as a general matter, under a verdict and affirmed the judg- eral theories of landlord liability. “premises liability” theory, a land- ment.450 lord could be held liable for negli- It is well established that as a gen- gence if he had reason to know In light of the rising number of eral matter, a landlord has no duty that a crime was likely to be statutorily required criminal back- to protect a tenant from the crimi- committed against a tenant, failed ground checks, and the increasing nal acts of a third person. A land- to take reasonable precautions to accessibility of criminal justice lord is not an insurer, and cannot prevent such an act (for example, information to employers of all be held liable for the occurrence by providing reasonable security types, it is not surprising that the of, or resulting damages from, or taking other actions), and such public, as well as courts, have unforeseeable events such as such failure was the proximate cause of concluded, in more and more cir- criminal acts. A landlord does harm to a tenant. Precedent ad- cumstances, that it is “reasonable” have a duty, however, to provide dressing this and similar theories to expect employers to review the habitable premises. If a landlord suggests, however, that a plaintiff criminal background of job appli- retains control over the security in such a case would have to meet cants. Consequently, the incentive and safety of the leased premises, a high threshold of proof.453 for employers to do so, if only to the landlord has a duty to provide protect themselves from potential secure premises (for example, If a landlord were to make repre- liability, has also increased. secure common areas in an apart- sentations concerning the security ment complex) by taking reason- he would provide to tenants— The extent of this “incentive,” able precautions to provide perhaps by advertising that he however, can be overstated. Most tenants with reasonable security in conducts criminal background successful negligent hiring claims response to foreseeable dangers. checks of all tenants or that he involve employees with unsuper- will not rent to persons with vised access to vulnerable popula- “Premises liability,” a special criminal records―and then the tions (children, the elderly) or form of negligence applicable to landlord negligently implemented sensitive venues. Even today, landlords, can arise if the landlord such measures (for example, by most employers are unlikely to fails to use ordinary care to reduce failing to perform background ever be confronted with a negli- or eliminate an unreasonable risk checks or failing to take reason- gent hiring judicial challenge. of harm created by a premises able precautions in light of the condition of which the landlord is, results of such checks), one could 2. Negligence theories or reasonably should have been, make a credible argument for li- applicable to claims aware.451 The existence of the ability under a general negligence against landlords landlord’s duty depends upon the theory, such as that which under- foreseeability of the harm. Fore- There does not appear to be a de- seeability, in turn, is based upon finitive legal doctrine of “negli- whether a reasonably prudent per- gent leasing” similar in nature to son would have anticipated that an 400, 225 Cal. 4th 763 (2001); Mason the more well-established doctrine injury was likely to result from the v. U.E.S.S. Leasing Corp., 96 N.Y.2d of negligent hiring. Nonetheless, performance or nonperformance 875 (N.Y. App. 2001); Valencia v. under certain circumstances, such of the act.452 Michaud, 79 Cal. App. 4th 741 (Cal. App. 2000 (unpublished, and not citable); Estate of J. Hough v. Estate 450 451 of W. Hough, 205 W. Va. 537 (1999); “Beverly,” by her Guardian John See, for example, discussion in Goode v. St. Stephens United Method- Doe v. Diamond Transportation Serv- Urena v. Western Investments Corp., ist Church, 329 S.C. 433 (1997); Tay- ices, 1999 U.S.App.Lexis 11136 (4th 2003 Tex. App. Lexis 7152 (Ct. App., st lor W. and Taylor J., “A Plaintiff’s Cir. 1999). See also Read v. The Scott 1 Dist., 2003), citing Timberwalk Approach to the Preparation of Prem- Fetzer Co., 990 S.W.2d 732 (Tex. Apartments Partners, Inc. v. Cain, ises Liability Cases Based on the 1998) (upholding $160,000 damage 972 S.W.2d 749 (Tex. 1998). Criminal Acts of Third Persons,”53 J. award against vacuum cleaner com- 452 Mo. B. 98 (Mar/Apr. 1997). pany and its distributor for failure to See, for example, Johnson v. Spectrum of Supportive Services, 453 verify references or conduct criminal See, for example, Saelzler v. Ad- background check of door-to-door 2003 Ohio 4404 (2003); Urena v. vanced Group 400, 225 Cal. 4th 763 Western Investments Corp., 2003 Tex. salesman who raped a customer in her st (2001), and other cases cited in this home). App. Lexis 7152 (Ct. App., 1 Dist., section. 2003); Saelzler v. Advanced Group

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lies the negligent hiring doc- ples, however, do require compa- form a body of best practices for trine.454 nies to (a) make available infor- all members.”461 The organization mation about the nature and has adopted a Code of Conduct This suggests that if criminal sources of public record informa- which, among other things, pro- background checks are performed tion in their databases, and (b) vides that employees will “per- as part of a landlord’s tenant either correct inaccurate informa- form professional duties in screening process, in order to tion or direct individuals to the accordance with the law and the avoid potential liability under a source of the information.457 The highest moral principles,” “safe- premises liability or general neg- organization announced its disso- guard confidential information ligence theory, landlords should lution on September 6, 2001, cit- and exercise due care to prevent take reasonable and appropriate ing implications of the Federal its improper disclosure,” and actions and precautions in re- Gramm-Leach-Bliley financial “avoid injuring the professional sponse to the results of such privacy law. Nonetheless, some reputation or practice of col- checks. companies continue to observe the leagues, clients or employers.”462 Principles as a standard of good The explanations that accompany E. Self-regulatory practice. the NAPBS Code of Conduct state efforts of that individuals shall “not know- commercial In January 2003, a new industry ingly release misleading informa- information vendors organization—the National Asso- tion nor encourage or otherwise ciation of Professional Back- participate in the release of such 463 Self-regulatory efforts taken by ground Screeners (NAPBS)—was information.” commercial information vendors formed to “represent the interest are also relevant. In 1997, for ex- of companies offering employment and background screen- ample, a number of major players 458 in the commercial information ing.” According to its mission industry formed the Individual statement, NAPBS exists “to pro- Reference Services Group (IRSG) mote ethical business practices, to regulate the industry’s use and promote compliance with the Fair dissemination of personal data, Credit Reporting Act and foster including criminal justice infor- awareness of issues related to con- mation, through a set of self- sumer protection and privacy rights within the background regulatory principles agreed to by 459 member companies (IRSG Princi- screening industry.” Among ples).455 The IRSG Principles op- other things, NAPBS intends to erate on the premise that public provide relevant programs and record information, including training to empower its member- criminal justice information, is ship “to better serve clients and set standards within the back- “usable without restriction unless 460 legally prohibited.”456 The Princi- ground screening industry.”

454 The NAPBS has formed several See discussion in Urena v. West- ern Investments Corp., 2003 Tex. committees, including one to fo- App. Lexis 7152 (Ct. App., 1st Dist., cus on establishing an ethics 2003) citing Timberwalk Apartments board; the other to provide practi- Partners, Inc. v. Cain, 872 S.W.2d cal information on the FCRA and 749 (Tex. 1998). 461Ibid., at 455Available at 457Ibid., at Principles III and IX. (visited Apr. 6, 458 456Individual Reference Services NAPBS Web site, available at 2004). Group, “Principles,” Principle IV, (visited Apr. 6, 2004). Ibid., at available at (visited Apr. 6, 2004). _principles_principles.htm> (site undergoing redesign). 460Ibid. 463Ibid.

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Part III. Criminal justice record information, commercial vendors, and the development of public policy

A. Introduction My office will be glad to backgrounding and direct market- send a representative at your ing.466 Consider the following marketing request to go into this deli- pitch: cate matter at greater Commercial information vendors 464 American businessmen are length. have been collecting, maintaining, faced with a grave problem and disseminating criminal justice … Our working forces in- Was this pitch for background record information obtained from clude more than a few radi- checking made in the days imme- court records and other public cals, socialists, diately following the terrorist at- record repositories for at least 50 revolutionaries, Communists tacks of September 11, 2001? years (newspapers have been col- and trouble-makers of all Quite the contrary. In fact, it lecting, maintaining, and dissemi- sorts. The colleges and comes from a data management nating this same information far schools are educating and company brochure published in longer). training thousands more who the late 1960s. will soon be seeking em- What’s different today? Most of ployment. The hiring and It is frequently assumed that the the important differences are mat- training cost to industry for commercial sale of criminal his- ters of scale: more criminal justice individual workers run into tory information (and other per- information is collected and main- the many thousands of dol- sonally identifiable public record tained; more customers are served lars. Before they are em- and publicly available informa- for more purposes; the informa- ployed, their educational and tion) is a recent phenomenon. In tion is more accurate, complete, professional backgrounds are fact, more than 30 years ago, R. L. and reliable; and the information screened most carefully. On Polk testified before Congress that is far more apt to be combined the other hand, little, if any- it maintained information on “200 with other sources of public re- million names in its marketing cord and publicly available infor- thing, is done to determine 465 their philosophy of life. In services division.” Actually, R. mation to create a more or less many cases this is of para- L. Polk had been compiling and complete personal profile. mount importance. selling a city directory since the early part of the 20th century. In Part III, we look at several im- th ***** Throughout the 20 century, the portant public policy questions: Polk City Directory, containing • Regulation. Should the in- the name, address (rent or own), Our files are the most reli- formation practices of com- marital status, occupation, place able, comprehensive and mercial vendors, courts, State of employment, and telephone complete and second only to repositories, and corrections number for virtually every adult those of the FBI which, of departments all be subject to American, was the Bible for course, are not available to the same rules? you… • Privacy. Should the Fair 464C. Pyle, “Uncle Sam is Watching We can supply you with all Credit Reporting Act (FCRA) You,” at 57–58, 1971, as cited in the data regarding your peo- be amended to impose obliga- “Commercial Information Brokers,” 4 tions on all end-users of ple that you may deem ad- Col. Hum. R. L. Rev. at pp. 217–218 criminal justice record visable … (Winter 1972). 465Hearings on H.R. 2730 before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 91st Congress, sec- 466See Hearings on H.R. 2730, at p. ond session at p. 69 (1970). 56.

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information? Should the sonal data to create “pro- • the purpose of the intended FCRA be amended so that it files,” what are the public use of the information. reaches all commercial crimi- safety and risk management The Privacy Task Force rejected nal justice record information benefits and what are the pri- basing law and policy on the iden- products? vacy threats? Should public tity of the source or the identity of policy be developed to ad- • Relevancy. Are there rele- the party managing the informa- dress these issues? vancy considerations in the tion.467 collection, use, and dissemination of criminal justice re- B. Should State central The National Task Force on the cord information? If so, who repositories, courts, Commercial Sale of Criminal Jus- determines what is relevant? and commercial tice Record Information reached a Is criminal justice record in- vendors be subject parallel, but more specific, con- formation relevant to to the same rules? clusion. The protections and re- antiterrorism efforts? Should quirements in the FCRA should public policy pivot on This question begs a key public apply, regardless of whether em- whether the information in policy question: Does it really ployers and other users obtain question is arrest information make any sense that different pri- criminal history data from com- or conviction information? vacy protections apply when the mercial vendors or directly from exact same information is held by courts or law enforcement. • Reintegration. Each year, different parties? Specifically, approximately 650,000 of- does it make sense that when 1. Systems emerged to fenders are released from in- commercial vendors communicate carceration. If commercial meet different needs criminal history data to employ- vendors retain criminal jus- ers, the protections in the FCRA It is difficult to understand the tice record information in- apply; but, when employers obtain Nation’s current “stovepipe” sys- definitely (and make this these data directly from courts or tem of regulating criminal justice information available indefi- law enforcement, and do so for the record information (one set of nitely), does this frustrate ef- very same purpose, none of these information privacy rules for State forts to reintegrate these protections apply? central repositories, a second set offenders into society? for the courts, and a third set for • Biometrics. Should commer- The BJS/SEARCH National Task commercial vendors) without a 468 cial vendors be permitted, en- Force on Privacy, Technology, historical context. couraged, or required to use a and Criminal Justice recom- biometric (presumably a fin- mended the development of a For many centuries in the United gerprint) when identifying in- “new generation” of confidential- States, as in England, court re- dividuals who are subject to ity and disclosure law and policy cords have been public by both 469 criminal background checks for criminal justice record infor- tradition and law. As a public and when matching a criminal mation. This new generation of

justice record to an individ- law and policy would take into 467 ual? account― Privacy Task Force report, supra 106, at p. 73. • Data Quality. If (and this is • the type of information (for 468Indeed, there is really a fourth set very much a question) com- example, whether it is convic- of rules applicable to the media and mercial vendor criminal jus- tion or arrest information) its acquisition, maintenance, use, and tice record checks suffer from disclosure of criminal history record • the extent to which the data- incompleteness, inaccuracy, information. base contains other types of or staleness, what, if any- 469 criminal justice information Houston Chronicle Publishing thing, should be done about Co. v. City of Houston 531 SW 2d this from a public policy • whether other sensitive per- 177, 186 (Court of Civil Appeals, standpoint? sonal information is main- Texas 1975), “The press and the public have a constitutional right of ac- tained with the criminal • Profiling. When commercial cess to information concerning crime justice information (for ex- vendors combine criminal in the community and to information ample, medical or financial justice data with other per- relating to the activities of law en- information) forcement agencies.” On the other

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policy matter, access to court re- 2. Vendor systems and cord information is subject to the cords—particularly criminal court regulatory controls FCRA, more accountability and records—has been seen as a pro- privacy protection applies than tection against secret arrests and In a very real sense, commercial when the information is provided secret “star chamber” proceed- vendor services customarily to end-users directly by reposito- ings. Furthermore, access to these merely extended or amplified ries or courts. records has been seen as a vehicle court record systems. In recent for effective oversight of the years, this has been supplemented Also, under the FCRA, the Fed- courts and assurance that indi- with corrections information and eral Trade Commission and State viduals/defendants receive the some repository information attorneys general can bring en- benefit of appropriate constitu- where permitted by law. Vendors forcement actions for FCRA vio- tional rights. The downside of obtain records from the courts that lations. In addition, aggrieved open access to court records is the are entirely public and could, record subjects may bring private threat to privacy, but many courts theoretically, be obtained directly rights of action against the com- that have looked at this issue have from the courts by the end-user. mercial vendor to recover dam- taken comfort from the fact that a Commercial vendors obtain these ages. Further, in certain situations, court record is incomplete and records from numerous courts; vet such as when an individual know- thus presents only a modest risk to the information for accuracy; ver- ingly and willfully obtains infor- privacy interests.470 ify the individual’s identity; up- mation from a consumer reporting date the information; and, in some agency under false pretenses, By contrast, repository records, cases, append other information criminal penalties are available. particularly as they were first de- about the record subject (such as Moreover, as noted, most States veloped, were created for the pur- educational records, driving re- have also adopted their own ver- pose of providing complete and cords, and other public records). sion of the FCRA, which may comprehensive information to All of this, of course, could be provide additional remedies and criminal justice agencies―for law done by the end-user (and with- protections. enforcement investigative pur- out, therefore, triggering the vari- poses, for prosecution purposes, ous privacy protections and 3. Is a unified regulatory and occasionally for sentencing restrictions afforded by the system desirable or purposes. Because repository re- FCRA). Many end-users, how- even possible? cords provided a more or less ever, do not have the resources to complete picture of an individ- obtain and assemble this informa- A central public policy issue is ual’s criminal history, they posed tion and find it more convenient whether these sets of law, which a significant privacy risk.471 and economical to outsource these arose as a result of separate needs tasks to commercial vendors. and separate problems, can or should be synthesized into a single Today, when end-users obtain regulatory scheme for the govern- criminal history data directly from ance of criminal justice record courts or repositories, some ac- information for noncriminal jus- countability and privacy protec- tice purposes. hand, in both Cox Broadcasting v. tion is provided through a Cohn, 420 US 469 (1975) and Florida Star v. BJF, 109 S. Ct. 2603 (1981), patchwork of State-based em- The Task Force concluded that the the Supreme Court made clear that a ployment law. In some States, for most viable approach would be to court may restrict access to criminal example, employers are not per- regulate the use of criminal justice history information maintained in mitted to base an employment record information by applying court records on a case-by-case basis. decision, for example, on arrest- FCRA-type protections on the 470See, for example, Reporters only information. The FCRA also end-user. The Task Force took the Committee for Freedom of the Press imposes some obligations on end- view that it makes little sense v. Department of Justice, 489 U.S. users, particularly those that ob- from a policy standpoint for pri- 749 (1989). tain reports for employment pur- vacy protections to apply to a 471See, for example, New Bedford poses. The Task Force concluded, background check if the employer Standard-Times Publishing Co. v. however, that, where commercial obtains that information from a Clerk of the Third District Court, 387 vendors’ acquisition, use, and consumer reporting agency, but N.E. 2d 110 (1979). disclosure of criminal justice re- not in cases where the same em-

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ployer obtains the same informa- Other Task Force members, while concerns may limit the ability to tion, for the same purpose, di- not opposed to the regulation of consolidate the three bodies of law rectly from a court or repository end-users, viewed regulatory con- (court, repository, and vendor) rather than from a consumer re- trols on access to criminal justice into one coherent approach. As porting agency. record information held by the noted above, the law in each of courts and government agencies these three areas evolved in re- Some Task Force members also as a viable approach for enhancing sponse to different circumstances suggested that commercial ven- privacy and promoting other so- and concerns. The courts, for ex- dors should not be restricted with cietal goals, such as reintegration ample, have a strong legal and respect to the information that of offenders into society. In short, cultural tradition of making their they can collect and include in if the data cannot be accessed, records publicly available (al- reports. Instead, restrictions, if then it cannot be used. Regulation though not necessarily in bulk), any, should be placed on the abil- of specific data elements, such as the principal exception being spe- ity of end-users to use such infor- the Social Security number, can cific instances where a judge de- mation for employment or other both help protect individuals from termines that records should be purposes. This approach also ac- identity theft and reduce the abil- sealed. Several Task Force mem- commodates the purchase of ity of commercial vendors to link bers from public agencies empha- criminal justice record informa- personal data about individuals sized that any effort to harmonize tion from courts and other sources from multiple databases. the law in this area should con- on a bulk basis by commercial tinue to distinguish between dis- vendors. Under this approach, the A few Task Force members took a closures made by government commercial vendor does not have different view, urging the imposi- instrumentalities and disclosures a particular use or purpose in tion of restrictions on commercial made by the private sector in light mind. Instead, commercial ven- vendors’ access to criminal justice of these traditions and the public dors buy the information in bulk record information (particularly, policy reasons for which courts and maintain that information in preventing bulk sales of court and and agencies make information their own data warehouse (fre- corrections data). They argue that available. quently enhancing and enriching this will protect privacy by the information) for future re- preventing (or at least making it In addition, harmonization of quests and uses by end-users.472 much more difficult) for commer- these three bodies of law could cial vendors to create comprehen- have considerable financial impli- sive national background checking cations, either in terms of new 472A 2002 decision by the Iowa Su- products to rival the State reposi- compliance costs or lost revenues. preme Court under the Federal Driv- tory and FBI systems. This would It was noted that many courts and ers Privacy Protection Act (DPPA) reduce or effectively eliminate State and local governments likely balked at this approach to relevancy commercial vendors as an alterna- would resist a new Federal man- and prohibited a commercial vendor tive to the repository system and, date unless the Federal law pro- from buying motor vehicle records in given the restricted or closed na- vided necessary funding. Other bulk. The court interpreted the DPPA to require that a party purchasing ture of those systems in most Task Force members noted that motor vehicle and driver’s license States, put the State legislatures even if funding were not an issue, information from a State Department firmly in control of who can ac- States likely would vigorously of Motor Vehicles must be able to cess criminal history record in- resist any attempt by Congress to meet one of the 14 specific uses under formation for which purposes. mandate how State courts and the DPPA and tie the particular record criminal justice agencies may dis- to that particular use. The case in- Task Force members noted that seminate their criminal justice volved a commercial vendor that in- 473 tended to buy driver’s license constitutional and institutional record information. information in bulk and disseminate it only to an end-user armed with at DPPA. The court, in other words, least one of the 14 permissible DPPA insisted that the commercial vendor, 473 uses. Although the Court’s decision and not its end-user, meet the rele- Several States, for example, vig- was based on a technical reading of orously opposed implementation of vancy test. See, LOCATE.PLUS.COM the DPPA, the underlying public pol- INC. d/b/a Worldwide Information, the Federal DPPA, 18 U.S.C. § 2721 icy interest focused on the fact that Inc. v. Iowa Department of Transpor- et seq., which regulates State disclo- the vendor did not itself meet any of tation, 650 NW 2d 609 (2002). sure of motor vehicle records, unsuc- the relevancy criteria under the cessfully challenging the

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With these difficulties in mind, minations involving employment, ple, the individual’s skills and the Task Force settled on the view licensing, access to credit, insur- talents) of hiring or otherwise that the most practicable way to ance, housing, or other valued interacting with an individual with harmonize the legal and privacy statuses or benefits. a criminal record. This decentral- requirements would be to apply ized approach means that deci- FCRA-type protection, regardless As a result, the current default, sions may vary widely depending of the source of the criminal his- especially in an increasingly dan- upon the risk management choices tory data. gerous and risk-averse society, is of the employer or other deci- to allow all (or virtually all) sionmaker. C. Are there relevancy criminal justice information to considerations in the reach end-users and then permit The question facing an employer collection, use, and end-users, based on their own or other end-user is whether an needs, culture, and law, to sort out individual’s particular interac- dissemination of the relevancy of the information. tion(s) with the criminal justice criminal justice Employers, for example, enjoy system (arrest, indictment, convic- information? wide latitude in determining tion, acquittal, etc.) should dis- whether criminal justice record qualify that individual for Many believe that the Nation’s information about an individual employment, either for any posi- information policy is inevitably should disqualify an individual tion or for a particular position. In migrating from a scarcity model from eligibility for a position, addition to the nature and circum- (information was difficult and except in those cases where the stances surrounding the interac- expensive to find; expensive and law specifically prohibits consid- tion, when the offense occurred difficult to maintain, retrieve, and eration of certain information may also be a consideration. Tim- update; and, therefore, most if not (such as arrest information in ing can vary from a more or less all of the information collected some States) or requires that indi- contemporaneous interaction to was used) to a relevancy model viduals with certain criminal his- events that occurred decades ear- (information is cheap and easy to tories be barred from positions (as lier. find; cheap and easy to maintain, is the case for certain air transpor- retrieve, and update; and, there- tation employees, for example). The metrics for relevancy, of fore, this wealth of data must be This latitude places the responsi- course, may vary, depending not screened). Applying a relevancy bility for risk management on the only on the nature of the criminal model, the question becomes not employer or other end-user, allow- justice record information in- what information can companies ing them to weigh the potential volved, but also on its intended obtain, maintain, and use, but costs (for example, liability, use. When hiring an individual to what information should compa- physical harm, lost training work in a daycare center, for ex- nies obtain, maintain, and use? costs474) and benefits (for exam- ample, it is likely to be considered The relevancy model for the col- 474 lection, use, and disclosure of Economic loss as a result of em- against employees that had passed the criminal justice record informa- ployee theft or other malfeasance has traditional limited county record tion remains in a very nascent been documented. See, for example, check. The results of this rescreen Hollinger Retail report, supra note discovered that the company hired stage. Information is increasingly 201. Research directly tying that loss readily available, but relevancy 2,600 employees with criminal re- to employees with criminal back- cords, 1,100 of which had been termi- determinations are unclear. As a grounds is not as readily available, nated for workplace misconduct— society, we know very little about however. There is some anecdotal including theft—within 6 months of whether, and under what circum- evidence, however. For example, being on the job. The average cost of stances, criminal justice record ChoicePoint informed the Task Force the workplace misconduct was that it “conducted a project with a information (and different kinds $1,000. The company determined that well-known national retailer who the cost to hire, train, and terminate an of criminal justice record informa- rescreened their employees using tion) is relevant to various deter- employee was $7,200. All told, this ChoicePoint’s National Criminal Re- retailer estimates that the 1,100 em- cord File and based on the results then ployees with criminal records cost the studied the work history for those retailer more than $9,000,000.” constitutionality of the statute. Reno employed individuals that were found ChoicePoint comments, supra note v. Condon, 528 US 141 (2000). to have a previously unknown crimi- 50. nal record. This rescreen was run

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relevant that the individual has to light. One woman who worked 2. Guidelines for five arrests for child molestation, as a pipe insulator, for example, relevancy even if the individual has never allegedly was barred from the been convicted of that crime. By Lilly facilities as a result of a mis- An area of particular interest to contrast, the same information demeanor conviction for a $60 the Task Force was whether suffi- may not be so relevant if that bounced check to a refrigerator- cient guidance is available to em- same individual is being consid- rental company, which she says ployers and other users of criminal ered for a position as a bartender. occurred because she closed the justice record information. There account without realizing that the were two broad areas where Task 1. What is relevant?: The check had not yet cleared.478 An- Force members thought guidance example of Eli Lilly other was arrested 6½ years be- to end-users would be valuable: fore for “a misdemeanor battery (1) understanding the meaning of In the aftermath of the September charge that had since been dis- the information provided, and (2) 11 attacks, pharmaceutical manu- missed.”479 A third “had been assistance in making relevancy facturer Eli Lilly revised its back- fined $250 and served 20 hours of determinations. ground-screening requirements, community service 14½ years ago including those it required of more for misdemeanor marijuana pos- The Task Force considered devel- than 7,000 employees of its ven- session.”480 Another had no crimi- oping such guidelines as part of its dors, whose work assignments nal record at all, but was work, but could not reach consen- required access to Eli Lilly phar- erroneously reported to have a sus on this issue amid concerns maceutical manufacturing facili- record actually belonging to a that the composition of the Task ties. The policy changes required relative with the same name.481 Force was not appropriate for the that vendors use a Lilly-picked preparation of such detailed guid- vendor to conduct all background Lilly’s actions were criticized. “I ance. In addition, some Task checks, using a standardized understand not employing a mad Force members expressed concern 475 form. Lilly originally proposed bomber, (but) it just doesn’t seem that even if the guidance produced conducting credit and motor vehi- right,” was the reaction of one was clearly designated as volun- cle checks, as well as criminal union official.482 According to tary, many employers may feel background checks, but relented Indianapolis labor lawyer Bill compelled to comply because of 476 after union officials protested. Groth, “Lilly has really decided to the U.S. DOJ’s sponsorship of the crack down. A good point can be Task Force’s work. According to union officials, made that Lilly is overreaching… when the results of the criminal I don’t know how the Indiana The Task Force noted that some checks were received, at least 100 courts would look at this. It would guidance had been developed to workers were banned from Lilly be a difficult case.”483 Amid com- assist end-users, such as employ- facilities as a result of the plaints, Lilly subsequently re- ers, through the background 477 checks. This did not necessarily lented and allowed some contract screening process. For example: mean that the workers lost their workers it initially barred from its jobs, since they actually worked premises to return.484 • Screening persons who for Lilly vendors, but many did work with vulnerable popu- lose their jobs because the vendors lations. In 1998, the Office of did not have any non-Lilly work Juvenile Justice and Delin- for them to do. The company quency Prevention (OJJDP), 478 came under criticism when the Ibid. within the U.S. DOJ’s Office nature of some of the offenses for 479Ibid. of Justice Programs, pub- which workers were banned came lished “Guidelines for the 480Ibid. Screening of Persons Work- 481Ibid. 475Associated Press, “Post-Sept. 11 ing with Children, the Eld- background checks prompt layoffs at 482AP Layoff article, supra note 475 erly, and Individuals with Lilly” (Feb. 2, 2002). Hereafter, AP (quoting Don Ireland, identified as a Disabilities in Need of Sup- Layoff article. local union official). port,” which were developed 476Davis article, supra note 180. 483Ibid. in association with the American Bar Association’s 477 484 Ibid. Davis article, supra note 180. Center on Children and the

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Law.485 The Guidelines were analysis and selection of pling for the first time developed to help meet a appropriate screening with the numerous com- congressional mandate that practices that would be plex issues inherent in the Attorney General “de- used in addition to ‘Basic conducting those checks. velop guidelines for the adop- Screening,’ which in- In addition, for compa- tion of appropriate safeguards cludes reference checks, nies that already have a by care providers and by interviews, and a written background check proc- states for protecting children, application.”487 ess, the Protocol provides the elderly, or individuals an opportunity to com- with disabilities from • Labor Policy Association pare their processes abuse.”486 Protocol. In 2003, the Labor against other companies, Policy Association (LPA) using the Protocol as a With respect to criminal published the “LPA Back- benchmark.”489 background checks, the ground Check Protocol: Guidelines: Achieving the Appropriate With respect to the criminal Balance Between Workplace background component of a “…do not mandate Security and Privacy.” LPA is background check, the Proto- criminal record checks “a public policy advocacy or- col notes that the FCRA and for all care providers but ganization representing senior State law regulate the types of do present advice on es- human resource executives of criminal justice record infor- tablishing a policy that more than 200 of the largest mation that can be reported provides an appropriate corporations doing business and considered.490 The Proto- level of screening based in the United States” and em- col characterizes the em- upon specific situa- ploying more than 19 million ployer process for using tions… The first step worldwide.488 The Protocol criminal justice information presented in this decision was developed by the LPA to make an employment deci- model includes an as- Workplace Security Advisory sion as follows: sessment of ‘triggers’ Board, which is comprised of that pertain to the setting Where not limited by the top security officials of in which the care is pro- state law, the employer LPA member companies. Ac- vided, the employee’s or may consider criminal cording to LPA, the Protocol the volunteer’s level of convictions in making is: contact with the individ- employment decisions. ual receiving care, and “a model background The mere presence of a the vulnerability of the check process that is de- criminal conviction care receiver. The next signed to further the se- should not necessarily step is weighing the curity interests of render an individual in- availability of informa- America’s employers and eligible for employment. tion, the costs of the the United States in sev- In making such deci- screening, and the human eral important respects. sions, the employer resources needed to carry First, the Protocol serves should consider: out the screening proc- to provide guidance to ess. The third step is the companies that may have • The circumstances and little past experience with type of the crime; background check prac- 485 • The length of time Office of Juvenile Justice and De- tices and may be grap- linquency Prevention, “Guidelines for since the crime oc- the Screening of Persons Working curred; With Children, the Elderly, and Indi- 487Ibid. viduals with Disabilities in Need of 488 Support” (April 1998). Available at Labor Policy Association Work- place Security Advisory Board, “LPA (visited June 29, Background Check Protocol: Achiev- 2004). ing the Appropriate Balance Between 489Ibid., at p. 19. Workplace Security and Privacy” 486Ibid., at p. iii. (March 2003) at p. 3. 490Ibid., at pp. 33-34.

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• Whether the applicant ployment is appropri- after the proceedings are has completed a reha- ate.491 complete.493 bilitation program; and With respect to arrest records, • Other sources. The Task • The applicant’s the Protocol states: Force also noted that other employment record sources of guidance exist, since the commission Generally, employers do such as newspaper and maga- of the crime. not disqualify applicants zine articles on the subject. In on the basis of arrests Determination of addition, in cases where a where there was no con- whether a crime is rele- background check is conviction. Some employers vant to the job will gen- ducted through a commercial may decide not to con- erally be made on a case vendor, the commercial ven- sider such arrests under by case basis. For exam- dor may provide the end-user any circumstances. Even ple, a conviction for driv- with guidance as to what en- where arrests are consid- ing while intoxicated tries mean and whether an of- ered, the mere fact of an may result in an adverse fense might be relevant to an arrest typically should employment determina- employment or other deci- not, in and of itself, result tion with regard to a de- sion. in an adverse employ- livery truck driver but ment decision. That an 3. Public policy issues not necessarily an ac- applicant was arrested counting clerk. Similarly, does not establish that a. Who determines a conviction for passing the applicant actually relevancy? Should public bad checks may disqual- committed the alleged policy pivot on whether ify the latter but not the crime. In addition, be- the criminal justice former. For positions cause the use of an arrest record information is where integrity is par- conviction or arrest-only record in employment ticularly essential to the information? decisions may have a job, such as a corporate disparate impact upon A critical public policy question is ethics officer, any con- certain protected classes, whether employers and other end- viction may be relevant. employers should be very users should be permitted to see careful about the use of all of this sensitive and heteroge- However, there are cer- such records in employ- neous information. Should they be tain crimes that will be ment decisions.492 permitted, indeed expected, to sort relevant to the vast ma- out all of this information based jority of jobs, including And with respect to ongoing on their own determination of crimes of violence, such matters: relevancy? Should society step in as murder, rape, robbery, and determine relevancy either and assault; and dishon- Where criminal proceed- through legislation that prohibits esty-related crimes, such ings are pending or the consideration of certain crimi- as theft, burglary, em- where adjudication of a nal justice information or by ap- bezzlement, forgery, and charge is deferred, the pointing a State agency or agent to fraud. Unrehabilitated hiring process will often evaluate the relevancy of criminal drug-related crimes may be suspended or termi- justice information on a case-by- also be considered, con- nated. In such instances, case basis? sistent with the Ameri- the applicant should be cans with Disabilities informed that he or she Recent legislation seeking to Act, for all positions. may reapply for a posi- amend the National Child Protec- Multiple convictions, in- tion with the employer tion Act (NCPA) takes the view volving any combination that organizations providing care of crimes, will also be to the elderly, handicapped, and considered as a factor in children should be permitted to determining whether em- 491 Ibid., at p. 39. 492Ibid., at p. 40. 493Ibid., at p. 40.

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see all of a criminal history record Many employers and landlords criminal justice record informa- and determine for themselves, argue that they should be able to tion; information about juveniles; based on their own relevancy access as much information as and inconclusive (i.e., arrest) standards, whether any of that possible to make the most in- criminal justice record informa- information is a disqualifier.494 By formed choices.497 Most commer- tion.499 contrast, current NCPA law per- cial vendors agree, arguing that mits only an authorized State relevancy should not be an impor- b. Is criminal justice record agency to review a criminal his- tant consideration or litmus test in information relevant to tory record in order to make a their effort to compile a complete terrorism-prevention efforts? relevancy determination. Further- criminal history record and com- more, NCPA law makes a sharp municate that record to an end- Questions have been raised about distinction between conviction user. Both groups argue that an the relevance of the typical back- information and nonconviction end-user should be able to see the ground check to screen out poten- information.495 entire record and then sort out the tial terrorists. Even representatives use of the record, based on the of some commercial vendors The Fair Credit Reporting Act end-user’s estimation of rele- question whether a criminal back- also recognizes a sharp distinction vancy. ground check, despite other bene- between conviction information fits, can help prevent terrorism. As and arrest information. Under the By contrast, some argue that if a spokesman for one commercial FCRA, with certain exceptions, law and policy permits the entire vendor put it: “Truth is, conven- arrest information can be main- record to be reviewed by an end- tional methods for screening ap- tained in a consumer report only user, most end-users will have plicants would not, in most cases, 500 for 7 years from the date of the little choice, in an increasingly screen out a potential terrorist.” arrest. By contrast, the FCRA was risk-averse society, but to opt not amended in 1998 to permit the to hire (or not to provide other the reporting of arrest information, disclosure of conviction informa- benefits or statuses to) a person with certain exceptions, to 7 years tion in perpetuity and regardless with a criminal record. A pro- from the date of entry of the arrest. 15 496 U.S.C. §§ 1681c(a)(2), (5). State law of the date of the conviction. posed solution is the withholding may impose more restrictive require- of aged criminal justice informa- ments. According to vendors, using 498 tion; incidental or “minor” the date of release as a standard could 494 present difficulties for commercial See, H.R. 5556, The National vendors because data made available Child Protection and Volunteers for semination frustrates efforts to reinte- by corrections departments do not Children Improvement Act of 2002, grate arrestees into society; and its always include the release date. 107th Cong., 2nd Sess. (amending the dissemination may have a dispropor- NCPA at 42 U.S.C. § 5119c); see tionate impact upon minorities. Pri- 499Restrictions in current law on the also, S. 22, 108th Congress, 1st Session vacy Task Force report, supra 106, at type of criminal history information (same). p. 80. that can be reported to a State reposi- 495 497 tory or to the FBI reflect an implicit Ibid. The Labor Policy Association, relevancy determination based on the 496 the National Apartment Association, content or sensitivity of various kinds Consumer Reporting Employ- and the National Multi Housing Coa- ment Clarification Act of 1998, Pub. of criminal history information. These lition, for example, all support access kinds of restrictions may also, how- L. No. 105-347 at § 5. The National to more criminal justice information Task Force on Privacy, Technology ever, reflect the fact that, historically, either through reduction of State and it was expensive to compile, maintain, and Criminal Justice Information Federal regulation of what informa- recommended that new criminal jus- retrieve, and update information; thus, tion they can consider or through the only the most important or serious tice privacy law and policy “continue increased availability of FBI back- to give weight to the distinction be- information should be reported to a ground checks. See the following repository. tween conviction information and discussion of reintegration for addi- non-conviction information.” The tional information. 500Society for Human Resources Privacy Task Force noted that the 498 Management, “Life Goes On: The distinction between conviction and Age of a criminal event, of Sept. 11 Attacks Were Over Within nonconviction information has long course, depends upon the defining Hours, But the Effects Linger Even been a “cornerstone” of criminal his- event from which age is measured (for Today. This Is How Employers are tory privacy policy. The Privacy Task example, arrest, conviction, release Adapting,” HR Magazine, Vol. 47: Force report further noted that non- from incarceration, etc.). The FCRA Issue 9 (Sept. 1, 2002) (quoting Ste- conviction information carries with it places no restriction on the reporting ven James, Background Profiles Inc.). a presumption of innocence; its dis- of conviction information and restricts

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According to another, “An iden- D. Do commercial lent offense.”504 At current rates of tity check is probably a better pre- vendor criminal incarceration, an estimated 1 out ventative measure for terrorism justice information of every 20 persons (5.1%) will than a criminal background serve in prison during their life- check.” 501 And a third: “We can databases and the time.505 In the case of certain help employers make sure the increased reliance males in certain minority groups, person they’re hiring is who they on criminal the estimates are considerably represent themselves to be… background checks higher, suggesting that, “an esti- What we can’t tell is if they’re a frustrate efforts to mated 28% of black males will terrorist. There’s no database for enter State or Federal prison dur- 502 reintegrate offenders that.” into society? ing their lifetime, compared to 16% of Hispanic males and 4.4% 506 Without question, however, fear The current public policy regard- of white males.” of terrorism has encouraged a ing the employment, housing, and heightened interest in knowing overall reintegration of offenders Most of these individuals eventu- more about not only employees into society creates an anomaly. ally will be released back into the and prospective employees, but On the one hand, various laws and community. According to the Of- also customers (such as air travel- public policies encourage the rein- fice of Justice Programs, “nearly ers) and business partners. In tegration of offenders into society. 650,000 people are released from some, albeit limited, cases, crimi- On the other hand, various laws incarceration yearly and arrive on nal justice record information may and public policies encourage, the doorsteps of communities na- 507 be directly relevant. An individual permit, or require that criminal tionwide.” This equates to may be on the Most Wanted Ter- background checks be conducted about 54,166 people released each rorist List or may have previous for employment and housing pur- month, 12,500 released each terrorism-related arrests or convic- poses. This anomaly raises a week, and 1,786 each day. These tions. Even if the typical criminal number of public policy questions individuals often need assistance background check may not iden- regarding how best to balance the reintegrating into society upon tify or predict a potential terrorist, need to reintegrate offenders into their release, as President Bush does this matter? If a company society with concerns that society noted in his 2004 State of the Un- decides to conduct background has about public safety and recidi- ion Address: checks out of a terrorism- vism. Tonight I ask you to consider prevention motivation or simply another group of Americans to reassure itself or its customers, 1. Reintegration in need of help. This year, does it matter that the individual is some 600,000 inmates will subsequently disqualified not due The societal impact of the reinte- be released from prison back to terrorism concerns, but because gration issue has grown in concert into society. We know from the report produced criminal jus- with the size of the prison popula- long experience that if they tice record information the em- tion. That population has “nearly can’t find work, or a home, ployer deems disqualifying? doubled since 1990 at the state or help, they are much more level, increasing from 708,393 in likely to commit crime and 1990 to 1,277,127 at yearend 503 2002.” In 2000, “about 10% of Federal inmates and 49% of State 504Bureau of Justice Statistics, inmates were in prison for a vio- “Criminal Offenders Statistics” (Jan. 14, 2004) available at 503 (visited June 29, 2004). Wilson, Reentry Trends in the United 505Ibid. 501Curtis article, supra note 171 States, section on “Growth in State (quoting Gary Cornick, president of prison and parole population” (Wash- 506Ibid. ington, D.C.: U.S. Department of San Jose-based Peoplewise). Justice, Bureau of Justice Statistics, 507Office of Justice Programs, 502Ibid. (quoting Renee Svec, April 2004) available at “Learn about Reentry,” available at spokeswoman for Florida-based (visited June 29, 2004). .html> (visited June 29, 2004).

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return to prison. So tonight, I former offenders: “Employers tion, jail, and prison time.514 propose a four-year, $300 were less likely to respond posi- “Prison is found to have an espe- million prisoner re-entry ini- tively to ex-convicts than those cially large and persistent negative tiative to expand job training who provided no information effect on earnings, suggesting the and placement services, to about past convictions. Recent impact of prison on the erosion of provide transitional housing, survey data similarly suggest that job skills.”515 and to help newly released employers would be more likely prisoners get mentoring, in- to hire welfare recipients or appli- While the impact of criminal jus- cluding from faith-based cants with little work experience tice record information on the groups. (Applause.) America than ex-convicts.”510 At the same overall reintegration of ex- is the land of second chance, time, data suggest that “serving offenders may require additional and when the gates of the time in prison can diminish an research, it is clear that having a prison open, the path ahead individual’s earnings, but not nec- criminal record can exclude an ex- should lead to a better life. essarily employment pros- offender from certain jobs and (Applause.)508 pects.”511 housing activities. “At least six States bar ex-offenders from pub- As these individuals are released, It does not appear, however, that lic employment. Federal laws bar they reenter local communities all interactions with the criminal many ex-prisoners from public and usually need to find housing justice system result in the same housing and federally assisted and/or employment. These reinte- adverse affect on offenders.512 “If housing programs. Some States gration efforts can be adversely stigma attaching to criminal jus- place restrictions on fields of work impacted, however, by the fact tice contact reduces earnings or ex-inmates can pursue, including that these individuals have been employment, we might expect law, real estate, medicine, nursing, incarcerated. The future employ- little difference in the effects of physical therapy, and educa- ment prospects of former inmates arrest, conviction, probation, or tion.”516 may be impacted by the stigma incarceration. From the em- associated with imprisonment as ployer’s viewpoint, each interven- Negligent hiring doctrine, for ex- well as “the erosion of human tion carries similar information ample, also may act as an im- capital.” As one researcher de- about the trustworthiness of a pro- pediment to reintegration by scribes it: “[w]hile social stigma spective worker.” 513 Some re- discouraging employers from describes employers’ perceptions search, however, suggests “taking a chance” on someone of those with criminal records, the differing economic impact as a with a criminal record (particu- erosion of human capital refers to result of arrest, conviction, proba- larly for serious offenses). Even if real deficiencies in the productiv- the employer tends to believe that ity of ex-inmates as a consequence the offender poses no threat, the 510 of their imprisonment.”509 Ibid., at p. 3. employer may still elect to hire a 511Ibid., at p. 21 (citations omitted). This same researcher suggests that 512 Current debate focuses on the stigma does have at least some whether “the labor market experiences 514 impact on the reintegration of Ibid., at p. 21. “[D]ata suggest of ex-offenders [are] due to the effects that the earnings penalty of impris- of conviction or incarceration or are onment ranges from 10 to 30 percent. they due to characteristics of offend- By contrast, the evidence on employ- 508President George W. Bush, “State ers that simultaneously place them at ment and earnings penalties from of the Union Address” (Jan. 20, 2004) risk of arrest and low earnings or arrest, conviction, and time in jail is (transcript available at employment.” In other words, uneven.” Ibid. ) (visited Jan. whether incarceration is responsible 21, 2004). for undermining the economic oppor- 515Ibid., at p. 14 (citations omitted). 509 tunities of ex-offenders or if “it may 516 Bruce Western, et al., The Labor simply be officially earmarking se- Geraldine Sealey, “No Second Market Consequences of Incarcera- verely disadvantaged men who would Chances? Ex-Prisoners Face Mount- tion, Working Paper #450 (Princeton otherwise have poor job prospects, ing Barriers to Re-entering Society,” University Industrial Relations Sec- ABC News (Dec. 10, 2002) available although without the dubious distinction, January 2001) at p. 4 (citations tion of membership in a policy- at (visited April 9, 2004). ble, October 2000. 513Ibid., at p. 14 (citations omitted). Hereafter, Sealey newscast.

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candidate without a criminal his- 59% within 2 years, and 67% and too unrealistic to outweigh the tory to avoid potential liability. by the end of 3 years. public’s very real interest in public safety. • Within 3 years, 52% of the Simple stigma also may impede 272,111 released prisoners an offender’s reintegration. As 3. Public policy options were back in prison either be- one commercial vendor asserts in cause of a new crime or be- promoting a tenant-screening a. Sealing and purging cause they had violated their product, “Virtually all criminals The stigmatization that can be parole conditions (for exam- live in rental housing. Do you caused by criminal justice record ple, failed a drug test or really want them living in information raises concerns that missed a parole office ap- yours?”517 the availability of this information pointment). through government and commer- 2. Recidivism • These 272,111 inmates “had cial sources and increased reliance accumulated more than 4.1 on criminal background checks Undoubtedly, one of the reasons million arrest charges prior to may result in the creation of, “in that reintegration and public their current imprisonment essence, a subclass of citizens safety goals conflict is the lack of and acquired an additional called former prisoners who are confidence in society’s ability to 744,000 arrest charges in the forever disadvantaged in their rehabilitate offenders. This lack of three years following their efforts to achieve reintegration … confidence is corroborated by discharge in 1994.”519 their sentence is never over.”520 recidivism. In June 2002, the Bu- • The study also found that reau of Justice Statistics released One means of promoting reinte- “post-prison recidivism was data from the largest recidivism gration is to have that record strongly related to arrest his- study ever conducted in the sealed or expunged. “Nationwide, tory. Among prisoners with United States, which tracked pris- a growing number of convicted one arrest prior to their re- oners discharged in 15 States (rep- felons are seeking to erase any lease, 41 percent were re- resenting two-thirds of all State trace of past crimes as more em- 518 arrested. Of those with two prisoners released in 1994). ployers perform background prior arrests, 47 percent were According to the study― checks on job applicants— rearrested. Of those with particularly since 9/11.”521 At pre- • 67% of former inmates re- three earlier arrests, 55 per- sent, laws in 40 States provide for leased from State prisons in cent were rearrested. Among the purging of nonconviction (that 1994 committed at least one those with more than 15 prior is, arrest-only) information and in serious new crime within the arrests, that is about 18 per- 26 States for the purging, under following 3 years. This recent of all released prisoners, some circumstances at least, of arrest rate was 5% higher 82 percent were rearrested conviction information. Also, laws than that among prisoners re- within the three-year period.” leased during 1983. in 31 States provide for the seal- Robust recidivism and a lack of ing of nonconviction information • Most former convicts were confidence in rehabilitation create and in 30 States for the sealing of rearrested shortly after getting a climate in which reintegration out of prison: 30% within 6 goals are viewed as too optimistic months, 44% within 1 year, 519 Another BJS study found that 520 Sealey newscast, supra note 516 517First American Registry, “Prod- about 3 in 8 defendants in felony (quoting Jeremy Travis, senior fellow ucts and Services: National Criminal cases in State courts in the Nation’s at the Urban Institute). 75 largest counties in May 1998 had Check,” available at 521 (vis- an active criminal justice status at the Seth Stern, “Ex-felons see crimi- ited Jan. 21, 2004). time of the current charged offense. nal records as a ‘life sentence’: Con- Sixteen percent were on probation, cern about fairness drives some states 518Bureau of Justice Statistics, 14% on pretrial release, and 5% were to consider laws that erase criminal “Two-Thirds of Former State Prison- on parole. Bureau of Justice Statistics, records,” Christian Science Monitor ers Rearrested for Serious New “Criminal Case Processing Statistics” (Apr. 1, 2002) available at Crimes” (June 2, 2002) available at (Jan. 14, 2004) available at (quoting Rob Karr of the Illinois Retail Merchants /rpr94pr.htm> (visited June 29, 2004). (visited June 29, 2004). Association). Hereafter, Stern article.

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conviction information.522 (Purg- riodically obtaining complete new held by a commercial vendor or ing, of course, means the destruc- data “dumps” from their sources the media when the underlying tion and/or redaction of (thereby limiting the information “official” repository record is information. Sealing customarily available to that which is currently purged or sealed. The Privacy means that the information is no available from the source agency). Task Force report noted that in an longer part of the official record; Not all vendors, however, neces- information age, effectively “un- is stored separately, and is avail- sarily undertake efforts to update doing” history may, as a practical able for inspection only upon a their records to eliminate records matter, no longer be possible (or, court order). that have been officially sealed or perhaps, even desirable).525 purged. Standards for purging and sealing b. Restricting end-user vary substantially among the One vendor that does, National access and ability to use States, but typically pivot on the Background Data (NBD), at- criminal justice record information type of offense, the number of tempts to address the issue by previous offenses, and whether the periodically obtaining new data Another means of promoting rein- record subject has established a dumps, as described above. How- tegration is to legally regulate the sufficiently long “clean record” ever, expunged records may still use and/or disclosure of criminal period. Sealing and purging orders be reported. If a disputed offense justice record information for pur- typically apply to criminal history record has been expunged but is poses of employment, housing, or information at the central State still in the public record informa- other life activities deemed central repository but not to original re- tion that NBD receives, the com- to an offender’s reintegration. cords of entry―for example, not pany deletes the expunged record With certain exceptions, for ex- to police blotter information at the upon receipt of a certified copy of ample, the FCRA prohibits con- station house and not to the court the expungement documentation. sumer reporting agencies from record (although judges can and If a prospective employer has al- reporting arrest information more do, in appropriate circumstances, ready received the report, NBD than 7 years old (it does not, how- order the sealing or even the de- also recommends that the con- ever, bar consumer report users struction of court records). “About sumer obtain a fingerprint-based from going directly to government a dozen states do wipe out at least background check from the State agencies to get the information for some felony convictions. Most repository and helps the consumer themselves). In addition, State law require ex-convicts to stay out of locate the repository. Finally, regulates or prohibits the use of trouble for a set number of years NBD works with the agency that arrest and/or conviction informa- and will only expunge first of- provided the expunged record to tion for certain purposes, such as fenses. Most, too, refuse to erase ensure that other expunged re- employment. Of course, as previ- crimes such as murder, arson, and cords are also purged from the ously noted, many State and Fed- child molestation.”523 data NBD receives.524 eral laws also mandate or encourage the conduct of criminal The purging/sealing approach can The obvious public policy ques- background checks for certain restrict the flow of information tion, is what, if anything, should employment and housing oppor- from courts and government be required to occur to a record tunities. agencies, once the order is issued, c. Expanding end-user but it does not guarantee that 524Robert W. Holloran, et al, “Spe- access and ability to use commercial vendors will have cial Issues Associated with Using purged the information from their Public Records in FCRA-Compliant criminal justice record systems (though many may) or Criminal History Background information Checks,” National Background Data Both of the options discussed erase the event from media ar- nd chives. Some vendors that obtain Inc., presented to the 2 Courtroom above effectively reduce the 21 Conference on Privacy and Public amount of criminal justice record data in bulk seek to address the Access to Court Records, Williams- sealing and purging issues by pe- burg, Va., Nov. 2, 2002, at p. 23. information available to employ- Available at ers, landlords, and other interested 522 parties. Those stakeholders, how- Privacy Task Force report, supra (visited June 28, 2004). Hereafter, Holloran 523Stern article, supra note 521. Special Issues report. 525Ibid.

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ever, typically want access to E. Should commercial been retrieved or that the right more, rather than less, criminal vendors be updating or amending information justice record information to make permitted/ has been appended to the right informed decisions that enhance file. All of this is not merely a safety and limit liability exposure. encouraged/ matter of good practice or even As one merchant association required to use a uniform practice but is mandated spokesman commented, “Retailers biometric when by State law, as well as applicable do hire people who’ve made mis- identifying Federal law.530 takes…but we want to do it with individuals who are 526 our eyes open.” subject to criminal Commercial vendors, on the other history record hand, customarily have relied This desire to enter into employ- upon name-plus-identifier checks. ment, housing, or other relation- checks and when This reliance has been driven in ships with their “eyes open” is matching criminal part by necessity (since commer- reflected in the legislative goals of history record cial vendors customarily have not employer and housing groups. The information with a had access to fingerprint-based Labor Policy Association, for ex- particular checks), as well as the fact that ample, has called for Congress to individual? name-plus-identifier checks have amend the FCRA to, among other customarily been far less expen- things: (1) preempt State laws The Task Force took note that sive than fingerprint-based checks limiting inquiries into arrest and commercial vendors have made and could be processed far more conviction records; (2) remove the impressive strides in using name quickly. As fingerprinting tech- FCRA’s 7-year limit on certain and other information to make nologies improve, however, the information (which the group be- reliable identifications. Nonethe- cost and time necessary to conduct lieves to be arbitrary); and (3) less, the Task Force urged the fingerprint-based checks decline. expand the ability of employers to commercial industry to more ag- The Task Force believes that the conduct background checks gressively incorporate biometrics, time has arrived when any cost or 527 through the FBI. With respect and primarily fingerprints, into timeliness benefits derived from to the latter point, the National their identification processes. name-plus-identifier checks are Apartment Association and the outweighed by potential accuracy National Multi Housing Council With rare exceptions, State crimi- problems. also have made obtaining a nal history record repositories and broader ability to conduct back- the FBI create criminal history 1. Benefits of fingerprint- ground checks through the FBI a records only when the demo- supported checks 528 legislative priority. graphic information associated with the record (such as name, The benefits of associating finger- address, and other explicit identi- prints with criminal history re- fiers) is supported by a finger- cords are well documented. A print.529 This ensures that these fingerprint-based check virtually repositories will not maintain du- eliminates the occurrence of a plicate records about the same “false positive.” False positives individual (who, perhaps, is using are easy to come by. It is esti- an alias or a slightly different mated, for example, that there are name). Moreover, the association 23,000 individuals with the name of a biometric―a finger- “Michael Smith” in the United print―with the record means that States. It is also estimated that when the record is retrieved or approximately 3,000 of these Mi- when additional information is chael Smiths move every year 526Stern article, supra note 521. added to the record, there is an (thus, rendering address informa- 527 assurance that the right record has LPA FCRA memoranda, supra note 411, at p. 6. 530See, for example, The National 528NAA/NMHC Joint Legislative 5292001 Use and Management re- Crime Prevention and Privacy Com- Program, supra note 207. port, supra note 236, at p. 28. pact Act, 42 U.S.C.A. §14611 et seq.

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tion unreliable).531 A report of the name-plus-identifier checks not to In the case of false positives, rele- National Task Force on Interstate have a criminal history record. vant laws (the Federal Fair Credit Identification Index Name Check This means that about 11.7 per- Reporting Act and similar State Efficacy found, in a sample of cent of all those applicants with laws in a majority of the States) more than 82,000 individuals, that criminal history records were require that an individual whose 4,562 were inaccurately indicated “beneficiaries” of a false nega- consumer report is used as a basis by name-plus-identifier checks to tive.534 for denying employment will ob- have criminal records. This repre- tain access to that report. Even sents approximately 5.5% of the From a public policy standpoint, when the FCRA does not apply, sample.532 obtaining a fingerprint before there are many other instances conducting a criminal background when an individual who is falsely The occurrence of false negatives check has another important bene- and incorrectly identified as hav- arising from name-plus-identifier fit. The act of obtaining the fin- ing a criminal record obtains no- checks presents even more serious gerprint serves as more or less tice of the reported record (and, public policy questions. When a dramatic notice to the individual indeed, is often asked for an ex- name-plus-identifier check is that a check will be conducted. planation of the reported record). used, a false negative can occur if Furthermore, because, for all prac- the individual uses an alias; if an tical purposes, it is not possible to Of course, when confronted with a individual materially misstates his obtain a fingerprint without the resourceful and determined of- name or other identification; if the record subject’s cooperation, the fender who is willing to use an identifying information is mistran- fingerprint requirement also can alias and able to back up the alias scribed; or if a simple search error act as an informal or de facto form with fraudulent identification, a is made.533 The Name Check re- of consent. name-plus-identifier check can port found that, out of more than (and, in fact, usually will) produce 82,000 individuals in the sample, 2. Benefits of name-plus- a false negative. This shortcoming 10,673 had fingerprint-verified identifier checks may be mitigated, however, to the criminal history records but of extent that the population that is these, 1,252 were indicated by Law, tradition, and perhaps even the subject of background checks common sense, all suggest that for noncriminal justice purposes is criminal justice records that are less apt to use aliases and to pre- 531Testimony of LexisNexis before supported by fingerprints and that sent fraudulent identification than the U.S. Senate Commerce Commit- are retrieved, updated, and the population that is arrested. tee, May 23, 2002. amended based on fingerprints are Nonetheless, the risk of false 532Interstate Identification Name more reliable than criminal justice negatives arising from name-plus- Check Efficacy: Report of the Na- records that are retrieved, updated, identifier checks cannot be dis- tional Task Force to the U.S. Attorney and amended based on name. The missed and, indeed, was found to General, NCJ 179358 (Sacramento: Task Force notes, however, that be significant by the National SEARCH Group, Inc., July 1999) at experience does not quite bear this p. 3. Available at Task Force on Interstate Identifi- (visited June 29, 2004). cacy. Hereafter, Name Check report. Commercial information vendors have seldom, if ever, had access to 533False negatives can also result Large and sophisticated commer- from other factors. False negatives fingerprints or, for that matter, cial information vendors, how- can occur, for example, if information access to fingerprint-supported ever, use skip trace reports and that would produce a positive result criminal history repositories. As a other information resources to exists in databases that have not been consequence, they have had little identify individuals who seem to checked as part of the search. False choice but to use name and other have concocted fictitious aliases. negatives may also occur in cases identifiers. where an offense exists, but it has not On the other hand, individuals been incorporated into a database who fraudulently adopt a name because it does not meet an agency’s and identification of an existing criteria for inclusion (for example, it individual (and, presumably, one is not fingerprint-supported, it is a who operates without the benefit 534 misdemeanor offense and the database Name Check report, supra note of a criminal justice record) pre- checked includes only felonies, etc.). 532 at pp. 6–7. sent a far more serious challenge.

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Nevertheless, some commercial practice are denied access to re- Even if commercial vendors con- vendors report low false negative positories whose criminal history tinue to be prohibited from sub- rates. According to ChoicePoint, records are organized and sup- mitting fingerprints to for example, “[i]nternal statistical ported by fingerprints (such as repositories, if commercial ven- reviews show that approximately State central criminal history re- dors could use the fingerprinting one-half of one percent of the cord repositories). process to positively verify the criminal record histories that are identity of an individual, then the disputed results in ChoicePoint 3. Increasing use of vendor could submit the correct having to amend the report be- biometrics in the name with confidence that the cause of a false negative.”535 It is private sector vendor is not facing an alias unclear, however, whether other and/or counterfeit identification. commercial vendors have a com- Today, the environment with re- Indeed, law enforcement agencies parable false negative rate. spect to the availability and use of increasingly are using a version of biometrics, including fingerprints, this approach in the criminal jus- There are other reasons why is changing rapidly. Biometrics tice context by submitting a name- commercial vendors (and their are becoming commonplace. They plus-identifier check (for speed customers) have been comfortable are losing whatever stigma was and economy) and later verifying using name-plus-identifier checks. associated with “being finger- the results with a fingerprint, at First, not all criminal justice re- printed.” Biometrics, for example, least in those cases where there is cord information is fingerprint- can be found on driver’s licenses a question of identity or authentic- supported (for example, records of in many States (customarily, a ity. low-level misdemeanors or certain thumbprint); are used for identifi- driving offenses are often not fin- cation verification on checks by Over the next 10 years, it seems gerprint-supported and therefore some banks and convenience increasingly likely that virtually would likely not be produced as a stores; and are used in many other all courts and criminal justice result of fingerprint-based government and privately used agencies will support at least new checks). Second, name-plus- identification systems. Further, entries to their record system with identifier checks customarily cost more and more individuals are a biometric. (Indeed, 20 years ago, far less than a fingerprint-based required to use a biometric as a almost no court records were check. Third, name-plus-identifier password surrogate to log onto automated. Today, court records checks have, at least until quite their computer or gain access to are increasingly automated ― sug- recently, taken far less time to secure areas of their workplace or gesting the speed with which complete than a fingerprint check. in other venues.536 courts can make and have made Fourth, in the noncriminal justice progress in their information man- arena, there has traditionally been Public opinion polls also indicate agement capabilities.)538 a “stigma” associated with being that the public is becoming more required to provide a fingerprint. comfortable with biometrics. In a Public policy in the privacy area is This is especially true when indi- 2002 public opinion survey, a frequently challenged and, indeed, viduals have been asked to go to majority of respondents indicated complicated by advances in tech- the local police station to have that they would be comfortable nology. In this instance, however, their prints “rolled.” with providing a finger- technology and, specifically, the print―particularly where the print proliferation of biometric tech- Finally, for commercial vendors is not rolled but, instead, is ob- nologies, also may work to solve there has been an element of tained by a process that is similar or mitigate problems associated “making a virtue out of a neces- to putting an individual’s thumb with the collection, management, sity.” Commercial vendors seldom or fingers on a photographic and retrieval of criminal justice have access to fingerprints. Even plate.537 if they were to obtain a fingerprint, commercial vendors rou- nologies, Crime Prevention and Pri- tinely by law, regulation, or 536Morris, “Tracking Work Done by vacy,” (Aug. 15, 2002). Touch, Not Punch,” New York Times (Jan. 17, 2002). 538Polansky, Computer Technology 535 ChoicePoint comments, supra 537 in the Courts (Westport, Ct.: note 50. Opinion Research Corp., “Public Greenwood Press, 1980). Attitudes Toward Identification Tech-

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information by commercial ven- encourage surveillance activities personal privacy, prevent identity dors. or the development of a national theft, and weaken the Social Secu- identification system. The Task rity number as the de facto na- In anticipation of this progress, Force urged that appropriate atten- tional identification number. the National Task Force on Pri- tion be given to these issues. vacy, Technology and Criminal Removal of the Social Security Justice Information recommended 4. Efforts to exclude number and other identifiers from that, “criminal history record in- certain descriptors criminal justice records could, formation, whether held by the from public records however, undermine the accuracy courts, by law enforcement, or by of name-plus-identifier-based commercial compilers and resel- In recent years, Congress, State background checks. As discussed lers, should, subject to appropriate legislatures, the courts, and gov- above, name alone is not a suffi- safeguards, be supported by and ernment agencies have been grap- cient basis for confidently return- accessible by fingerprints to the pling with the privacy issues ing the results of a criminal extent legally permissible and to raised by the loss of the de facto background check; additional de- the extent that technology, cost privacy standards that existed scriptors are essential. Address and the availability of fingerprints when all government records were can be used, but given the tran- to both database managers and part of manual systems that were sient nature of the population, users, make this practicable.”539 once much more difficult to ac- address is of only limited utility. The Commentary to that recom- cess (though still publicly avail- Similarly, physical description can mendation notes that changes in able) than they are in the vary over time; besides which, it technology, particularly livescan automated Internet age. The is not included in many criminal fingerprinting, may soon make growth of identity theft as a crime justice records. As a result, the fingerprinting, “just as quick, also has prompted significant pol- Social Security number and date convenient and inexpensive as icy concerns. of birth are very important to the [name-plus-identifier] checks.”540 industry’s efforts to provide accu- One approach to addressing iden- rate name-plus descriptor checks. The Task Force agrees. The Task tity theft concerns and increasing Force concluded that commercial privacy protections is to restrict The Task Force notes that removal vendors should be “encouraged” access to, or prohibit the inclusion of these identifiers from public to use biometrics, and specifically of, information in public records records could increase the poten- fingerprints, to the fullest extent that is deemed to be too private tial for false positives or effec- possible. (such as certain financial informa- tively limit the ability of tion) or a potential facilitator of commercial vendors to provide On the other hand, the use of bio- identity theft. The Social Security criminal background checks on a metrics by commercial vendors number, given its extensive use by name-plus-identifier basis because will, inevitably, raise privacy con- the government and private sector the reports produced would not be cerns, including whether biomet- for record organization purposes, sufficiently reliable. Removal of rics and biometric-supported as an account number and a means these identifiers may also increase databases will be consensual, and of verifying identity, falls into the the cost of the commercial ven- whether these technologies could latter category. Also in the latter dors’ products. An increase in category are other identifiers, such false positives is potentially dam- as date of birth and mother’s aging to the individuals involved maiden name, given that this in- and also increases costs. Loss of formation is also frequently re- the ability to conduct reliable quested by institutions as a means name-plus-identifier checks would of verifying the identity of the be likely to increase the demands individual for purpose of provid- on Congress and the State legisla- ing account information over the tures for access to fingerprint- telephone, for example. Many based checks through the FBI and 539 policymakers and privacy advo- Privacy Task Force report, supra the State repository system. 106, at p. 75. cates believe that it essential to 540 reduce the public availability of Ibid. Social Security numbers to protect

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F. Do commercial criminal records on the chance even to miss altogether a particu- vendor criminal that the individual may have lar prosecution, although as previ- justice record committed a crime while passing ously noted, commercial vendors through a distant jurisdiction was “salt” their requests for court re- checks suffer from impractical. cords as a quality control measure. completeness, Where an individual is detained or accuracy, or With the recent growth of com- even arrested but no charges are timeliness problems mercial “nationwide” criminal brought and the individual is and, if so, what justice information databases, never indicted or arraigned, it is types of public however, at least one vendor, Na- more likely that a commercial policy “fixes” should tional Background Data, has sug- vendor check will not uncover this gested that the customary local information.543 be employed? check is no longer sufficient, ar- 1. Data quality guing that given technological Other “data quality” problems advances, “Failure to check coun- confront commercial vendors. challenges ties and states beyond the appli- There is, of course, the problem, As noted earlier, the primary cants’ current and recent discussed earlier, that can arise sources of criminal justice record residences can no longer be justi- when a name-plus-identifier check information for commercial ven- fied on the basis of cost and time is incorrect and the wrong crimi- 541 dors have, by far, been the courts. required to check other areas.” nal justice record information is Court records, however, are com- At the same time, however, com- matched with the wrong individ- prehensive (if even then) only mercial vendors still see a role for ual. Furthermore, when criminal with respect to events that oc- local agency checks. As Rap- justice record information is curred in that particular court. sheets.com notes, “Though much bought in bulk, as opposed to ob- This means, for example, that of the data provided by Rap- tained from a repository or a court lower court records do not always sheets.com is the most complete in response to a customized, one- include dispositions. Furthermore, and up to date information avail- off search, the information ob- events that took place in other able instantly on the Internet, the tained in bulk grows stale from courts, whether arising from the service provided here does not the date of its acquisition and same or separate or subsequent always substitute for an in-person must be updated in a continual events, are found only in the re- courthouse search of criminal re- and systematic way in order to 542 cords of these other courts. cords.” Many vendors also take capture dispositions or other care to note the sources of the events.544 This dispersion of records pre- information in their databases, sents a significant challenge to putting users on notice that the commercial vendors relying upon database is not necessarily com- 543Some commercial vendors have court records as their only, or at prehensive and allowing the end- policies against reporting arrest in- least primary, source of criminal user to identify gaps in the ven- formation where subsequent adjudica- justice record information. Ven- dor’s coverage that may be rele- tion never occurred. For example, “ChoicePoint’s Employment Service dors use various types of screens vant to the end-user’s decision whether or not to use the database. Center’s current policy for reporting and sources (employment checks, criminal record information is to re- SSN traces, motor vehicle records, port only criminal record information records of prior addresses, etc.) to In addition, it is always possible where some type of adjudication has identify relevant jurisdictions and, for a commercially conducted, occurred or the case is currently pend- thus, relevant courts whose data- court-based, criminal check to ing an upcoming court appearance.” miss an available disposition or ChoicePoint comments, supra note bases should be searched. Such an 50. approach to defining the scope of 544 a criminal background check con- This is not to say that searches done 541Holloran Special Issues report, ducted by a commercial vendor by end-users directly with the State supra note 524, at p. 11. central repository or the FBI (when customarily has been viewed as 542 permitted) or directly with the courts appropriate by the marketplace. Rapsheets.com, “A History of Delivering Public Records,” available are necessarily free of data quality The marketplace recognized that at (visited June 28, 2004). customarily do not maintain records of “non-serious” events—defined

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2. Fair Credit Reporting of the FCRA, for example, re- tant protection that enhances the Act protections quires consumer reporting agen- likelihood of accuracy and com- cies to have in place “reasonable pleteness in the criminal justice When commercial vendors pro- procedures” to ensure maximum information ultimately used to vide criminal justice records under possible accuracy. make an employment determina- the Federal Fair Credit Reporting tion. Act and under State FCRA laws, Furthermore, where public record protections exist that promote the information (defined to include The FCRA does not apply in inaccuracy, completeness, and time- criminal justice record informa- stances where end-users go di- liness of the records. Section 607 tion obtained from repositories or rectly to court, a repository, or courts) is obtained by a consumer other agency to obtain the records variously in the States, but usually reporting agency for an employ- themselves. In addition, the FCRA comprising at least some misdemean- ment purpose, and where that applies only to commercial ven- ors. Further, although State central criminal justice record is likely to dors with criminal justice record repositories exist for the purpose of have an adverse effect upon a products that are used or expected compiling a comprehensive record of consumer’s ability to obtain em- to be used for FCRA-permissible all criminal events relating to an individual that have occurred in that State, ployment (by definition, a crimi- purposes. Even where the FCRA’s research indicates that arrests are nal justice record), then the protections do apply, notice to the sometimes (and, in some States, fre- consumer reporting agency must, consumer relieves a consumer quently) not reported to the reposi- at the time that the agency pro- reporting agency of certain accu- tory. Moreover, by definition, a State vides the criminal justice record to racy obligations. Some argue that repository maintains a record of only the end-user, notify the consumer the FCRA inherently recognizes those offenses that have occurred in that State. While a State repository that this information is being re- that despite a vendor’s best ef- can initiate a national search to obtain ported and indicate the name and forts, errors will occur and builds criminal history records about an address to whom the information in notification procedures and individual from other States, the fact is being reported or maintain reinvestigation requirements to remains that an in-state-only search is “strict procedures” designed to compensate for this. Others argue, just that. ensure that the information is however, that these safeguards The FBI’s criminal history database has its own data quality problems. By complete and up to date. The should not be used as an excuse its own admission, the FBI obtains FCRA goes on to say that, “items by commercial vendors to ration- available dispositions for only ap- of public record relating to arrests, alize inaccurate reporting. proximately 50% of the arrest records indictments, convictions…shall be held by the FBI. Furthermore, of considered up to date if the cur- As a result, the FCRA does not course, many arrests are not even rent public record status of the necessarily settle the accuracy and reported to the FBI, particularly ar- item at the time of the report is completeness issue. The extent to rests for nonreportable (minor) of- 545 fenses. Finally, both the State reported.” which commercial vendors should repositories and the FBI are far more be permitted to make honest mis- apt to have accurate, complete, and In addition, under the FCRA a takes or experiment with new uses timely information with respect to consumer can request access to of information or technology, events that have occurred during the the report and can seek to amend even if some inaccuracy may re- last 10, and particularly, the last 5, or correct inaccurate information sult, is a question for both policy- years. Older criminal history record information, particularly where the in the report. As a practical mat- makers and the marketplace. individual has established a clean ter, any time a commercial vendor Accuracy is clearly a desirable record period that includes the most subject to the FCRA reports goal, but too stringent an accuracy recent 10 years, is apt to be incom- criminal justice information to an requirement (and accompanying plete, inaccurate or missing alto- employer for an employment pur- liability) could discourage private gether. pose, the consumer must be given sector participation in the conduct It also must be emphasized that when end-users, such as employers, notice and will have an opportu- of criminal background checks. attempt to go directly to the courts for nity to review and correct the This, in turn, could indirectly criminal history record checks rather criminal justice record informa- work against the public policy than using a commercial vendor, most tion in question. This is an impor- interests served by the conduct of experts believe that the risk of obtain- criminal background checks. ing inaccurate or incomplete information balloons. 54515 U.S.C. § 1681k.

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It was the sense of the Task Force or responsibility for corporate tion that an employer may deem that, on the whole, there is not a funds); medical history if the posi- relevant together with criminal substantial reliability issue with tion requires a particular fitness justice record information. Third, respect to commercial vendors level or physical activity (and employers can “shop” and obtain because commercial vendors have subject to the strictures of the different pieces of relevant back- a strong business interest in trying Americans with Disabilities Act); ground information, either directly to produce reliable, accurate, and and even prior addresses (how from various sources (such as complete products. close does the applicant live to the going to schools and colleges to job and have there been problems check an individual’s educational G. When commercial with landlords, etc.). Furthermore, background) or from various ven- vendors combine enhanced demographic informa- dors. In this model, it is the em- criminal justice tion has become increasingly im- ployer―not the vendor―who portant to ensure that the person puts together a comprehensive record information applying for the job is, in fact, background assembled from a with other personal who he says he is. A 1998 study variety of sources. data to create a by the Society for Human Re- “profile,” what are source Management, for example, 2. Profiling and privacy the public safety and found that “over half of the em- risks risk management ployers that check references on From a record subject’s/ appli- benefits, and what applicants discover some kind of false information and 45 percent cant’s privacy standpoint, it’s not are the privacy of them found applicants lied at all clear that it makes a differ- threats? Does there about criminal records.”546 Com- ence whether the employer ob- need to be a public bine this with the pressure on em- tains a turnkey, comprehensive policy focus on this ployers to hire the right person for information profile from one ven- issue? the right job, and the burgeoning dor or whether the employer uses employer appetite for comprehen- its in-house human resources staff 1. Reasons for profiling sive background information is to assemble the same profile from easily explained.547 a variety of sources. Either way, There is little question that com- the employer in our example ends bining various types of personal Employers, to continue our exam- up with a considerable amount of information creates an information ple, customarily look to three information about the applicant. dividend for end-users that are sources for information about ap- making hiring decisions; decisions plicants. First, employers obtain a In point of fact, however, because about accepting volunteers for great deal of information from the the FCRA and its State law youth groups and sports organiza- applicants themselves. Second, equivalents provide significant tions; licensing decisions; and employers can look to consumer privacy protections if the appli- other decisions about benefits, reporting agencies to provide all cant’s information is compiled statuses, and entitlements. or most of the personal informa- and communicated by a consumer reporting agency, the record sub- In making an employment deci- ject/applicant enjoys the most sion, for example, criminal justice 546Labor Policy Association, protection if an employer buys a record information is often “Reauthorization of the Fair Credit turnkey product from a consumer deemed to be relevant by employ- Reporting Act,” Memoranda (March reporting agency. A privacy 8, 2003) at p. 7. ers. Of course, other kinds of per- downside in the information ven- sonal information also are relevant 547Making an appropriate hiring de- dor model, however, is that now to an employment determination, cision is important for employers for two parties have access to, and such as educational records and cost reasons; for post-September 11 perhaps maintain, this report: the concerns, and for concerns arising background; prior employment; from the negligent hiring doctrine. employer and the consumer re- motor vehicle and drivers’ records See, Robert Hunter, “Past as Pro- porting agency (but, of course, the (especially if the position involves logue: Assessing Job Candidates” report remains subject to the driving for the prospective em- (March 2002) available at FCRA). ployer); credit history (particularly if the position involves access to (visited Jan. 21, 2004).

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The Privacy Task Force report into a comprehensive profile on focused on the privacy risks posed the individual should be resisted by criminal justice record data- because, once a comprehensive bases that are “enriched” by other database has been built, it cannot types of personal information. The (or will not) be redivided into its Privacy Task Force recommended component parts. As a result, that, “criminal justice record in- these amalgamated databases will formation law and policy should only continue to grow both in restrict the amalgamation of terms of data content and in terms criminal justice record informa- of uses. tion in databases with other types of personal information except Other Task Force members ques- where necessary to satisfy public tioned whether such a regulatory policy objectives.”548 The Privacy approach would be viable. Some Task Force noted, however, that Task Force members argued that there are instances where the technological advances in search amalgamation of criminal justice software capabilities have made information with other types of the idea that privacy can be pro- personally identifiable informa- tected by preventing the combination is necessary to further public tion of data from multiple safety. databases into one database an outdated concept because there The Privacy Task Force took the may be little difference between position that official criminal re- going to one database for the in- cord databases maintained in State formation and doing a Google central repositories and the courts search and pulling the data from should not be “tainted” with non- two separate databases. criminal justice information. At the same time, the Privacy Task Some members of the Task Force Force recognized that commercial representing commercial vendors vendors that “gather both CHRI noted that their systems currently [criminal history record informa- rely upon multiple databases (or- tion] and other types of personal ganized by information source or information from disparate data type), not one master data- sources as part of an investigation, base; some or all of these data- consumer report background bases are searched in the course of check or similar inquiry” are responding to an end-user’s re- beneficial and should “remain quest, depending upon the scope unchanged.”549 of the search the end-user requested. Other Task Force mem- The Commercial Sale of Criminal bers emphasized that these matters Justice Record Information Task cannot (and should not) be ad- Force does not express a view on dressed in the abstract. Prohibiting whether policymakers should cre- the use of a particular type of ate barriers to the creation of technology is not a viable ap- amalgamated profiles. Some proach. Instead, policymakers members of the Task Force argued should identify specific undesir- that the amalgamation of criminal able acts and prohibit them. justice data and other types of data

548Privacy Task Force report, supra 106, at p. 78. 549Ibid., at p. 79.

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Conclusion

In September 2004, the House tainly civil liberties and privacy Republican leadership introduced interests, all demand the develop- H.R. 10, the “9/11 Recommenda- ment of a blueprint. One part of tions Implementation Act.” Buried that blueprint, undoubtedly, must in that 609-page bill was a provi- lay out the role of commercial sion that gave private employers, background screening companies. with State authorization, direct access to the FBI’s Integrated This report, and the work of the Automated Fingerprint Identifica- Commercial Sale of Criminal Jus- tion System (IAFIS) for criminal tice Record Information Task history record employment back- Force, represents an important and ground checks. While this provi- first-ever effort to lay the ground- sion did not become law, its work for drafting that blueprint, inclusion reflected growing con- especially as it relates to the role gressional concern about not only of commercial background screen- the number of requests for statu- ing companies. tory authorization for criminal history employment background checks, and not only the variety of types of jobs and other positions that would be subject to these checks, but also the utter lack of a consistent national approach to backgrounding.

Sometimes, State and Federal bills call for fingerprint-based checks, and sometimes not. Sometimes, State and Federal bills specify that the check should go through the State repository or through the FBI, and sometimes not. Some- times, State and Federal bills specify the type of criminal history record to be obtained (conviction versus nonconviction, etc.), and sometimes not. And sometimes, State and Federal bills pre- scribe various privacy protections, and sometimes not.

As our Nation—at least on a de facto basis—moves rapidly toward universal backgrounding, it is certainly understandable that members of Congress and other policymakers are alarmed that no blueprint is in place for prescrib- ing and regulating these checks. The Nation’s security, as well as on-the-job efficiency, and cer-

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Appendix: Task Force members

Chair Marc Krass David Walchak Associate General Counsel Deputy Assistant Director Professor Kent Markus The Procter & Gamble Company Communications/Technology Capital University Law School Branch Ohio Carlos Lacambra Federal Bureau of Investigation Vice President Members A-Check America Lana Adams Law Enforcement Liaison Lewis Maltby U.S. Department of Justice Program Services President Federal Investigations Service National Workrights Institute Carol G. Kaplan U.S. Office of Personnel Chief Management Garry Mathiason National Criminal History Senior Shareholder Improvement Programs Melvin Carraway Littler Mendelson Bureau of Justice Statistics Superintendent Indiana State Police Stuart Pratt SEARCH, The National Executive Vice President Consortium for Justice Francis D’Addario Governmental Relations Information and Statistics Vice President Associated Credit Bureaus, Inc. Partner and Asset Protection Sheila J. Barton Starbucks Coffee Company James Shea Deputy Executive Director Assistant Director John Ford Office of Systems Robert R. Belair Chief Privacy Officer New York State Division of Oldaker, Biden & Belair Equifax, Inc. Criminal Justice Services General Counsel

Bud Gaylord Solveig Singleton Kevin Coy Director Senior Policy Analyst Oldaker, Biden & Belair Case Analysis and Support Competitive Enterprise Institute Associate Division National Center for Missing & Tim Spainhour Owen M. Greenspan Exploited Children Legal Compliance Leader Justice Information Services Acxiom Corporation Specialist Lt. Col. Jeffrey Harmon Deputy Chief Donna Uzzell Eric C. Johnson Maine State Police Director Policy Research Analyst Criminal Justice Information Juanita Hicks Services

Clerk of Superior Court Florida Department of Law Fulton County (Georgia) Superior Enforcement Task Force members and staff are listed Court with their titles and agency affiliations at Richard Velde the time of their participation in Task Robert Holloran Attorney-Advisor Force deliberations and the development of this report. Chief Executive Officer National Background Data, LLC Kush Wadhwa Senior Consultant Robert Kamerschen International Biometric Group Vice President Law and Public Policy ChoicePoint, Inc.

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