<http://readersupportednews.org/news-section2/318-66/41779-the-fbi-is-buildi
ng-a-national-watchlist-that-gives-companies-real-time-updates-on-employees>
Kofman writes: "The FBI's Rap Back program is quietly transforming the way
employers conduct background checks."
A demonstrator is arrested during a march in protest of Donald Trump's
presidential inauguration, Friday, Jan. 20, 2017, in Portland, Ore. (photo:
Dave Killen/The Oregonian/AP)
<https://theintercept.com/2017/02/04/the-fbi-is-building-a-national-watchlis
t-that-gives-companies-real-time-updates-on-employees/>
The FBI Is Building a National Watchlist That Gives Companies Real Time
Updates on Employees
By Ava Kofman, The Intercept
05 February 17
he FBI's Rap Back program is quietly transforming the way employers conduct
background checks. While routine background checks provide employers with a
one-time "snapshot" of their employee's past criminal history, employers
enrolled in federal and state Rap Back programs receive ongoing, real-time
notifications and updates about their employees' run-ins with law
enforcement, including arrests at protests and charges that do not end up in
convictions. ("Rap" is an acronym for Record of Arrest and Prosecution;
"Back" is short for background). Testifying
<https://archive.org/details/CSPAN3_20151026_210000_Politics_and_Public_Poli
cy_Today?q=john> before Congress about the program in 2015, FBI Director
James Comey explained some limits of regular background checks: "People are
clean when they first go in, then they get in trouble five years down the
road [and] never tell the daycare about this."
A majority of states already have their own databases that they use for
background checks and have accessed in-state Rap Back programs since at
least 2007; states and agencies now partnering with the federal government
will be entering their data into the FBI's Next Generation Identification
<https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi>
(NGI) database. The NGI database, widely considered to be the world's
largest biometric database, allows federal and state agencies to search more
than 70 million civil fingerprints submitted for background checks alongside
over 50 million prints submitted for criminal purposes. In July 2015, Utah
became the first state to join the federal Rap Back program. Last April,
aviation workers at Dallas-Ft. Worth Airport and Boston Logan International
Airport began participating
<http://www.biometricupdate.com/201507/tsa-selects-airports-for-fbis-real-ti
me-criminal-history-monitoring-pilot> in a federal Rap Back pilot program
for aviation employees. Two weeks ago, Texas submitted its first request to
the federal criminal Rap Back system.
Rap Back has been advertised by the FBI as an effort to target individuals
in "positions of trust," such as those who work with children, the elderly,
and the disabled. According to a Rap Back spokesperson, however, there are
no formal limits as to "which populations of individuals can be enrolled in
the Rap Back Service." Civil liberties advocates fear that under Trump's
administration the program will grow with serious consequences for employee
privacy, accuracy of records, and fair employment practices.
Indefinite Retention
In typical federal background checks, the FBI expunges or returns the
fingerprints it collects. But for the Rap Back system, the FBI retains the
prints it collects on behalf of companies and agencies so that it can notify
employers about their employee's future encounters with law enforcement. The
FBI has the license to retain all submitted fingerprints indefinitely - even
after notice of death. Employers are even offered the option to purchase
lifetime subscriptions to the program for the cost of $13 per person. The
decision to participate in Rap Back is at employers' discretion. Employees
have no choice in the matter.
"This type of infrastructure always tends to undergo mission creep,"
explained the ACLU's Jay Stanley, referring to how agencies often find
secondary uses for data beyond its original function.
There are no laws preventing the FBI from using the data it collects for
other purposes, said Jeramie Scott, an attorney with the Electronic Privacy
Information Center. A massive trove of digital fingerprints collected by the
FBI, he noted, could be used to open up devices like smart phones without
the owner's consent. In addition, Scott pointed out that the FBI often
collects a photo of Rap Back participants' faces. "Although the FBI has
stated that they do not use these photos in facial recognition searches," he
said, "there is no legal barrier from the Bureau changing this policy." The
agency is no stranger to mission creep
<https://theintercept.com/2017/01/31/secret-docs-reveal-president-trump-has-
inherited-an-fbi-with-vast-hidden-powers/> . As documents
<https://epic.org/2014/09/epic-foia---fbi-extends-rap-ba.html> obtained by
EPIC show, the FBI's use of facial recognition searches is increasing
<https://theintercept.com/2016/10/18/study-lack-of-face-recognition-oversigh
t-threatens-privacy-of-millions/> and the NGI database continues to expand.
<https://www.fbi.gov/file-repository/ngi-monthly-fact-sheet>
In January, EPIC obtained
<https://epic.org/privacy/fbi/Rap-Back-FOIA-Docs-2nd-Prod.pdf> two years of
monthly statistics for the NGI system under the Freedom of Information Act.
The summary sheets show that the database's expansion has been fueled by
submissions of non-criminal identifiers, such as the prints submitted for
background checks. Fact sheets from January 2015 through August 2016 show
the database growing at a much higher rate from its collection of data from
civil settings than from criminal justice purposes. During that period,
civil submission rates constituted nearly 70 percent of new submissions.
"Through the Rap Back program the FBI is collecting biographical and
biometric data on potentially millions of civilians for purposes not
associated with criminal justice," Scott said.
At least two dozen separate state laws already include provisions for
various kinds of individuals to be entered into the Rap Back Service.
Slideshows obtained by EPIC through a FOIA request
<https://epic.org/privacy/fbi/Rap-Back-FOIA-Docs-2nd-Prod.pdf> reveal that
the FBI planned as early as 2013 for the Rap Back program to be introduced
into various employment-related legislation across states. In a slide
identifying "legislating hurdles," the FBI listed the need to identify state
legislators to "champion" the program and to "attach needed language to
other legislation already on calendar." The program's greatest victory in
this respect is a little-known provision
<https://www.govtrack.us/congress/bills/111/hr3590/text> of the Affordable
Care Act, which awards grants for states to develop the means to implement
Rap Back for long-term home healthcare providers as well as other "direct
patient access" employees. According to an explainer
<https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCe
rtificationGenInfo/downloads/backgroundcheckqanda.pdf> provided by the
Centers for Medicare & Medicaid Services, it is possible that Congress may
require states to enroll in Rap Back in order to receive federal funding for
health care programs.
In June, Hawaii <http://time.com/4382831/hawaii-gun-control-fbi-database/>
became the first state to put gun owners into its Rap Back system, which
will notify law enforcement whenever a gun owner is arrested for a crime in
any state. Jay Stanley, of the ACLU, said that such a real-time database for
monitoring might seem like a good idea in theory - until the same logic is
applied to all kinds of other groups in practice. In Utah, for instance,
anytime <http://le.utah.gov/~2015/bills/static/SB0184.html> an immigrant
with a driver's license generates any sort of criminal record, the state's
Rap Back program will notify ICE, possibly triggering deportation
proceedings.
What the program counts as "triggering events" differs depending on how
subscribers configure their systems. In Missouri, where public school
teachers are entered into the program, a police captain told a local paper
<http://www.news-leader.com/story/news/education/2016/03/03/rap-back-program
-keep-close-eye-missouris-public-school-employees/81122862/> that scanning
fingerprints triggers the release of closed records, including charges that
are not prosecuted and judicial decisions that result in dismissals or not
guilty findings.
Such a broad mandate could "provide employers with an unprecedented window
into employees' lives," according to Jennifer Lynch, a lawyer at the
Electronic Frontier Foundation. In domestic violence cases reported to the
police, for instance, both the abuser and victim can be arrested. "Depending
on workplace discrimination laws," Lynch said, "this could allow employers
to use a minor criminal infraction as a reason to demote or fire an
employee."
Lynch said it's possible that employees could be fired for an arrest where
they were exercising their First Amendment rights: filming public officials,
attending protests, blocking streets. "It's unclear if an employer that
takes action based on the arrest would know the arrest is tied to First
Amendment protected activity."
Faulty Records
Outdated and incorrect
<https://theintercept.com/2016/03/15/terrorist-watchlist-errors-spread-to-cr
iminal-rap-sheets/> criminal history information already leads to workers
losing <https://www.wired.com/2009/10/ncic/> their jobs. Labor and privacy
advocates fear that the national Rap Back program, which draws on a massive
NGI database and depends on data sharing between several agencies, will only
make these errors worse.
FBI and state databases are not known for their accuracy. As the National
Employment Law Project reported
<http://www.nelp.org/publication/wanted-accurate-fbi-background-checks-for-e
mployment/> in 2013, as many as 50 percent of the FBI's arrest records fail
to include information on the final disposition of a case - that is, whether
a person was convicted, acquitted, or if charges against them were dropped.
Because many people who are arrested are never charged or convicted, a high
percentage of the FBI's records incorrectly indicate a subject's involvement
with a crime.
"Often this is because states fail to update their own records, and the FBI
does not proactively verify the accuracy of information coming from the
states," Lynch explained. "This has a much greater impact on communities of
color because all criminal history systems include a disproportionate number
of African Americans, Latinos, and immigrants." An estimated 1.8 million
workers a year are subject to FBI background checks, according to the NELP.
An FBI spokesperson from the Rap Back program said that the program "works
diligently with all agencies to maintain accurate Identity History Records"
and that if discrepancies exist, teams are in place to assist subscribers
and individuals.
Jay Stanley, of the ACLU, views the Rap Back program as part of a larger
trend toward the monitoring and policing of everyday life. "The whole
purpose of program," he said, "is for people to be fired."
<http://e-max.it/posizionamento-siti-web/socialize>
Error! Hyperlink reference not valid.Error! Hyperlink reference not valid.
A demonstrator is arrested during a march in protest of Donald Trump's
presidential inauguration, Friday, Jan. 20, 2017, in Portland, Ore. (photo:
Dave Killen/The Oregonian/AP)
https://theintercept.com/2017/02/04/the-fbi-is-building-a-national-watchlist
-that-gives-companies-real-time-updates-on-employees/https://theintercept.co
m/2017/02/04/the-fbi-is-building-a-national-watchlist-that-gives-companies-r
eal-time-updates-on-employees/
The FBI Is Building a National Watchlist That Gives Companies Real Time
Updates on Employees
By Ava Kofman, The Intercept
05 February 17
he FBI's Rap Back program is quietly transforming the way employers conduct
background checks. While routine background checks provide employers with a
one-time "snapshot" of their employee's past criminal history, employers
enrolled in federal and state Rap Back programs receive ongoing, real-time
notifications and updates about their employees' run-ins with law
enforcement, including arrests at protests and charges that do not end up in
convictions. ("Rap" is an acronym for Record of Arrest and Prosecution;
"Back" is short for background). Testifying
<https://archive.org/details/CSPAN3_20151026_210000_Politics_and_Public_Poli
cy_Today?q=john> before Congress about the program in 2015, FBI Director
James Comey explained some limits of regular background checks: "People are
clean when they first go in, then they get in trouble five years down the
road [and] never tell the daycare about this."
A majority of states already have their own databases that they use for
background checks and have accessed in-state Rap Back programs since at
least 2007; states and agencies now partnering with the federal government
will be entering their data into the FBI's Next Generation Identification
<https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi>
(NGI) database. The NGI database, widely considered to be the world's
largest biometric database, allows federal and state agencies to search more
than 70 million civil fingerprints submitted for background checks alongside
over 50 million prints submitted for criminal purposes. In July 2015, Utah
became the first state to join the federal Rap Back program. Last April,
aviation workers at Dallas-Ft. Worth Airport and Boston Logan International
Airport began participating
<http://www.biometricupdate.com/201507/tsa-selects-airports-for-fbis-real-ti
me-criminal-history-monitoring-pilot> in a federal Rap Back pilot program
for aviation employees. Two weeks ago, Texas submitted its first request to
the federal criminal Rap Back system.
Rap Back has been advertised by the FBI as an effort to target individuals
in "positions of trust," such as those who work with children, the elderly,
and the disabled. According to a Rap Back spokesperson, however, there are
no formal limits as to "which populations of individuals can be enrolled in
the Rap Back Service." Civil liberties advocates fear that under Trump's
administration the program will grow with serious consequences for employee
privacy, accuracy of records, and fair employment practices.
Indefinite Retention
In typical federal background checks, the FBI expunges or returns the
fingerprints it collects. But for the Rap Back system, the FBI retains the
prints it collects on behalf of companies and agencies so that it can notify
employers about their employee's future encounters with law enforcement. The
FBI has the license to retain all submitted fingerprints indefinitely - even
after notice of death. Employers are even offered the option to purchase
lifetime subscriptions to the program for the cost of $13 per person. The
decision to participate in Rap Back is at employers' discretion. Employees
have no choice in the matter.
"This type of infrastructure always tends to undergo mission creep,"
explained the ACLU's Jay Stanley, referring to how agencies often find
secondary uses for data beyond its original function.
There are no laws preventing the FBI from using the data it collects for
other purposes, said Jeramie Scott, an attorney with the Electronic Privacy
Information Center. A massive trove of digital fingerprints collected by the
FBI, he noted, could be used to open up devices like smart phones without
the owner's consent. In addition, Scott pointed out that the FBI often
collects a photo of Rap Back participants' faces. "Although the FBI has
stated that they do not use these photos in facial recognition searches," he
said, "there is no legal barrier from the Bureau changing this policy." The
agency is no stranger to mission creep
<https://theintercept.com/2017/01/31/secret-docs-reveal-president-trump-has-
inherited-an-fbi-with-vast-hidden-powers/> . As documents
<https://epic.org/2014/09/epic-foia---fbi-extends-rap-ba.html> obtained by
EPIC show, the FBI's use of facial recognition searches is increasing
<https://theintercept.com/2016/10/18/study-lack-of-face-recognition-oversigh
t-threatens-privacy-of-millions/> and the NGI database continues to expand.
<https://www.fbi.gov/file-repository/ngi-monthly-fact-sheet>
In January, EPIC obtained
<https://epic.org/privacy/fbi/Rap-Back-FOIA-Docs-2nd-Prod.pdf> two years of
monthly statistics for the NGI system under the Freedom of Information Act.
The summary sheets show that the database's expansion has been fueled by
submissions of non-criminal identifiers, such as the prints submitted for
background checks. Fact sheets from January 2015 through August 2016 show
the database growing at a much higher rate from its collection of data from
civil settings than from criminal justice purposes. During that period,
civil submission rates constituted nearly 70 percent of new submissions.
"Through the Rap Back program the FBI is collecting biographical and
biometric data on potentially millions of civilians for purposes not
associated with criminal justice," Scott said.
At least two dozen separate state laws already include provisions for
various kinds of individuals to be entered into the Rap Back Service.
Slideshows obtained by EPIC through a FOIA request
<https://epic.org/privacy/fbi/Rap-Back-FOIA-Docs-2nd-Prod.pdf> reveal that
the FBI planned as early as 2013 for the Rap Back program to be introduced
into various employment-related legislation across states. In a slide
identifying "legislating hurdles," the FBI listed the need to identify state
legislators to "champion" the program and to "attach needed language to
other legislation already on calendar." The program's greatest victory in
this respect is a little-known provision
<https://www.govtrack.us/congress/bills/111/hr3590/text> of the Affordable
Care Act, which awards grants for states to develop the means to implement
Rap Back for long-term home healthcare providers as well as other "direct
patient access" employees. According to an explainer
<https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCe
rtificationGenInfo/downloads/backgroundcheckqanda.pdf> provided by the
Centers for Medicare & Medicaid Services, it is possible that Congress may
require states to enroll in Rap Back in order to receive federal funding for
health care programs.
In June, Hawaii <http://time.com/4382831/hawaii-gun-control-fbi-database/>
became the first state to put gun owners into its Rap Back system, which
will notify law enforcement whenever a gun owner is arrested for a crime in
any state. Jay Stanley, of the ACLU, said that such a real-time database for
monitoring might seem like a good idea in theory - until the same logic is
applied to all kinds of other groups in practice. In Utah, for instance,
anytime <http://le.utah.gov/~2015/bills/static/SB0184.html> an immigrant
with a driver's license generates any sort of criminal record, the state's
Rap Back program will notify ICE, possibly triggering deportation
proceedings.
What the program counts as "triggering events" differs depending on how
subscribers configure their systems. In Missouri, where public school
teachers are entered into the program, a police captain told a local paper
<http://www.news-leader.com/story/news/education/2016/03/03/rap-back-program
-keep-close-eye-missouris-public-school-employees/81122862/> that scanning
fingerprints triggers the release of closed records, including charges that
are not prosecuted and judicial decisions that result in dismissals or not
guilty findings.
Such a broad mandate could "provide employers with an unprecedented window
into employees' lives," according to Jennifer Lynch, a lawyer at the
Electronic Frontier Foundation. In domestic violence cases reported to the
police, for instance, both the abuser and victim can be arrested. "Depending
on workplace discrimination laws," Lynch said, "this could allow employers
to use a minor criminal infraction as a reason to demote or fire an
employee."
Lynch said it's possible that employees could be fired for an arrest where
they were exercising their First Amendment rights: filming public officials,
attending protests, blocking streets. "It's unclear if an employer that
takes action based on the arrest would know the arrest is tied to First
Amendment protected activity."
Faulty Records
Outdated and incorrect
<https://theintercept.com/2016/03/15/terrorist-watchlist-errors-spread-to-cr
iminal-rap-sheets/> criminal history information already leads to workers
losing <https://www.wired.com/2009/10/ncic/> their jobs. Labor and privacy
advocates fear that the national Rap Back program, which draws on a massive
NGI database and depends on data sharing between several agencies, will only
make these errors worse.
FBI and state databases are not known for their accuracy. As the National
Employment Law Project reported
<http://www.nelp.org/publication/wanted-accurate-fbi-background-checks-for-e
mployment/> in 2013, as many as 50 percent of the FBI's arrest records fail
to include information on the final disposition of a case - that is, whether
a person was convicted, acquitted, or if charges against them were dropped.
Because many people who are arrested are never charged or convicted, a high
percentage of the FBI's records incorrectly indicate a subject's involvement
with a crime.
"Often this is because states fail to update their own records, and the FBI
does not proactively verify the accuracy of information coming from the
states," Lynch explained. "This has a much greater impact on communities of
color because all criminal history systems include a disproportionate number
of African Americans, Latinos, and immigrants." An estimated 1.8 million
workers a year are subject to FBI background checks, according to the NELP.
An FBI spokesperson from the Rap Back program said that the program "works
diligently with all agencies to maintain accurate Identity History Records"
and that if discrepancies exist, teams are in place to assist subscribers
and individuals.
Jay Stanley, of the ACLU, views the Rap Back program as part of a larger
trend toward the monitoring and policing of everyday life. "The whole
purpose of program," he said, "is for people to be fired."
http://e-max.it/posizionamento-siti-web/socializehttp://e-max.it/posizioname
nto-siti-web/socialize
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