Employers can use FBI database for real-time background checks

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• AVA KOFMAN, REPORTER:

  Yes. So, in a typical background check, an employer's only getting a one-time snapshot, as you pointed out. And so, this has been something that's kind of occurred to a lot of different employees and employers and federal agencies, you know, over the years that you might be hearing someone and five years down the line, they get into trouble, and you wouldn't ever had a chance of knowing that.

  So, what the Rap Back system does it provides real time ongoing notifications, so that if someone has contact with law enforcement and is in a sensitive key position of trust, as the FBI calls it, such as a nurse or someone who works with children, or the elderly or disabled, their employer would actually get a notification, saying, hey, this person has had contact with law enforcement, since the background check happened, you know, say, five years ago.

• SREENIVASAN:

  So, who owns that Rap Back database and how does information get into it?

• KOFMAN:

  So, the Rap Back is owned by — I mean, I guess — I don't know if "owned" would be the right word, but it's, you know, maintained and operated by the FBI. But states, it's worth noting, also have their Rap Back databases. And so, those are coordinated through their, you know, criminal database systems.

  And one of the kind of concerns with entering all of this information into the federal system is obviously, you know, the FBI is doing background checks, you know, for years. It's the gold standard for background checks. However, the FBI usually gets a finger print submission and then they expunge that data. You know, they run the background check and they take that data away.

  With the Rap Back system, they're actually keeping those finger prints on file, because they need them in order to scan them for ongoing notifications. And the concern is that that data can now be used for all kinds of other purposes. It's entered this massive database, not just of civilian data submitted for background checks or, you know, data submitted from the DMV, but it's in this massive database called the Next Generation Identification Database that also searches all of these criminal submissions alongside it.

• SREENIVASAN:

  OK. So, if somebody is keeping my fingerprints on file for a long time, how — how can that be used against me later on?

• KOFMAN:

  Well, one of the concerns is that because all of these fingerprints are now being submitted like subject to kind of searches alongside, you know, criminal fingerprints, the data that you've used for one purpose is all of a sudden subjecting you to what, you know, civil liberties advocates call a perpetual police lineup. It's being searched when someone else's databases are being scanned in a system for a criminal purpose.

  And so, one concern is false matches. But let's not even — let's pretend that false matches are never a problem and a database works well. Another concern is that you're actually — you start to get the representation of people that are more subject to encounters with law enforcement kind of grows in that system.

  So, one concern is that African-Americans are disproportionately impacted by, you know, policing and by over-policing of their communities. And the increase submissions of, you know, their fingerprints or their facial photos subject them to more and more searchers.

• SREENIVASAN:

  What about the accuracy of the information going in? What if I didn't do anything wrong but I just happened to have my fingerprint in the system anyway?

• KOFMAN:

  Yes. So, accuracy has already been a major concern with background checks and there have been a lot of movements, you know, asking the FBI before it continues to, you know, be the gold standard of background checks to fix their records. So, like the national employment labor project shown in 2013 that 50 percent of the — like information that the FBI has that it uses to run background checks doesn't actually include the final disposition of the case.

• SREENIVASAN:

  Uh-huh.

• KOFMAN:

  So, what that means is that so many people's records incorrectly indicate a link to a crime that A, they might have been not, you know, accurately charged with, B, those charges might have been dropped, or, C, that case might have been sealed.

• SREENIVASAN:

  And employers are for this, even though there's that caveat that you just mentioned, that technically the screen could come back that Hari's in the system and that might already preclude me from getting a second look or my resume going on to the next round. Well, he's in the system, I don't know whether he's guilty or not, but he's in the system, let's move on.

• KOFMAN:

  Yes, it kind of seems like employers are split on background checks in a way, because we've seen a lot of movements and a lot of activism towards, you know, a kind of "ban the box" legislation across states and in a federal government. Obama and the Obama administration in 2015 decided that federal employees would not longer be asked about their criminal history. That's what, you know, banning the box meant.

  And so, a lot of people have decided that, actually, you know, you want to encounter the background check process later in the system. So, while some employers might want, you know, to have more sensitive information about their employees, to receive more ongoing updates, there has been a large push towards understanding background checks as unfair and discriminatory practices especially in the early stages of hiring.

• SREENIVASAN:

  So, how does this get fixed?

• KOFMAN:

  Well, it seems like the one thing that everyone has agreed upon both for regular background checks and for something new like the Rap Back system is making sure that the records are accurate being they're being given to employers, because the number one things that people encounter especially in times of great unemployment is, you know, incorrect background check information, making it really difficult for them to find a job. Studies have found this over and over again.

• SREENIVASAN:

  All right. Ava Kofman, contributor to "The Intercept" — thanks for joining us.

• KOFMAN:

  Thank you so much.

  END