Federal Bureau of Investigation - Congressional Statements

I am David R. Loesch, Assistant Director in Charge of the Criminal Justice Information Services Division (or CJIS Division) of the Federal Bureau of Investigation. The FBI has been asked to comment on proposed legislation which would authorize nationwide name checks -- rather than fingerprint-based checks -- of volunteers and we welcome this opportunity to provide the Congress with the FBI's views on this matter. Our position is predicated upon the extensive experience and lengthy discussions by legal, policy, and technical specialists within the FBI, representatives of state criminal identification systems, and other federal agency information specialists who both contribute and use Criminal History Record Information (or CHRI). In light of this collective wisdom, the FBI remains firmly opposed to name-based criminal history checks for noncriminal justice purposes, including that particular application envisioned by HR 3410.

Name checks are often argued as a substitute for fingerprints because of historical delays in processing fingerprint submissions. In 1997 the CJIS Division made a concerted effort to reduce its fingerprint backlog, which in turn, resulted in a corresponding drop in the number of days necessary to process fingerprint cards. The CJIS Division has eliminated its backlog, and the time to process civil fingerprint cards at the CJIS Division is presently eleven days.

Let me assure you that the FBI is doing everything within its power to continue to reduce its processing times. The Integrated Automated Fingerprint Identification System (or IAFIS) became operational in July 1999. This next generation system culminated a decade-long effort costing approximately $640 million to wed the speed of name checks with the certainty of fingerprints. The IAFIS concept of operations detailed two hour criminal and twenty-four hour noncriminal turnaround on electronically submitted fingerprints, and it is operating within these parameters.

The implementation of the IAFIS created the reality of fingerprint images taken at local law enforcement agencies by live-scan or card-scan equipment and then electronically transmitted to the FBI for processing by the FBI IAFIS. The IAFIS allows the FBI to provide no slower than 24-hour turnaround for civil fingerprint electronic submissions, providing the benefit of a prompt turnaround akin to that associated with name checks but with the certitude of a fingerprint check.

During the past two months, representatives of the FBI have met with representatives from the National Center for Missing and Exploited Children, Boys and Girls Clubs, the Department of Housing and Urban Development, Department of Justice (DOJ) Office of Policy Development, as well as private employment associations and state governments. There is consistent recognition of the preferability of a fingerprint-based system, as well as an appreciation that, although no single application may warrant incurring the costs attending live scan technology, aggregation of uses (and users) more than justify its application.

In short, we are taking important steps to safeguard children and the elderly by improving the speed of background checks, but we are doing so without running the substantial risks posed by name-based checks.

HR 3410 anticipates that the proposed name checks would be performed using the National Crime Information Center (or NCIC) Interstate Identification Index (or III), a predominantly name-based, descriptor system. A system designed to promptly provide CHRI to law enforcement, it has operated since 1981 consistent with that intention. The III is an automated system of criminal history records accessed via the NCIC. It holds automated criminal history records on approximately 36 million individuals, but does not contain the manual criminal history records of approximately 5 million additional individuals. Name checks on these individuals cannot be accomplished by performing an NCIC III check.

For almost twenty years, NCIC III has been relied upon because law enforcement "on the scene" had no fingerprint or positive identification alternative. This "quick and dirty" mechanism was relied upon with the understanding that a law enforcement officer could determine whether the suspect and the subject of the criminal record were the same by relying upon his training and experience. This same logic also supports the use of name-based checks in one unique, broad-based system -- the FBI's national instant check system (NICS) for proposed gun purchasers. The FBI's NICS examiners -- like law enforcement officers -- have the training and experience to evaluate name-based background checks correctly, but the same is generally not true of others who would seek to use name-based checks for non-criminal justice purposes.

Since some 94 percent of the records in III are the property of state and local law enforcement, the CJIS Advisory Policy Board (APB) was established pursuant to the Federal Advisory Committee Act, 5 U.S.C. Appendix 2. Comprised of representatives of federal, state, and local law enforcement agencies, the CJIS APB provides advice to the FBI Director and the Attorney General regarding proper use of CHRI. Regarding the instant matter, CJIS APB and FBI policy require positive fingerprint identification by the FBI or a State Identification Bureau (SIB) before use of the III to obtain criminal history records for noncriminal justice purposes.

The great weight of the evidence supports the FBI and the CJIS APB's conclusion that a name check of criminal history record systems is a "rough" process which produces many "false negatives" (in which a criminal is not identified) and "false positives" (in which an individual without a criminal record is identified as having a record). It is only through the processing of fingerprints that one can actually verify whether a criminal history record is maintained on a particular individual.

To fulfill the FBI's obligations under the Government Performance and Results Act of 1993, 31 U.S.C. §1116, in 1998 the CJIS Division analyzed a statistically valid sample of the 6.9 million fingerprint cards submitted for employment and licensing purposes during FY 1997. When compared with the criminal prints on file at the FBI, some 8.7 percent, or approximately 600,000 of the fingerprints, resulted in "hits." Of greatest importance, we determined that some 11.7 percent of the hits, or 70,200 civil fingerprint cards, reflected entirely different names than those listed in the applicants' criminal history records and were only identified because of the fingerprint submissions. Hence, the criminal history records of these persons -- whom we deemed intentionally provided false names to evade detection of their records -- would have been missed entirely during the background examination had the record check been name-based. Using these projections, of the 52,000 applicants for school system employment, some 5,900 or 11 percent who had criminal histories would use names entirely different from that listed on their criminal record. These intentionally misleading applicants had prior convictions ranging from assault to drug sales and were only detected because of positive, fingerprint-based identification.
Two independent investigations by the Small Business Administration of individuals participating in its loan program also support the conclusion that the criminal element perceives names checks as an opportunity to perpetrate fraud. The SBA studies were performed because of the high rate of SBA loan default and the SBA's suspicion that a significant percentage was attributable to active and intentional borrower fraud. In reviewing some 3,300 nonperforming loans, it was determined that 11.6 percent of these borrowers had concealed the existence of their criminal past and had fraudulently certified that they did not have criminal records. Spurred on by these figures, the SBA conducted a second investigation of 500 defaulting loans and found that some 8 percent of nonperforming loans were to borrowers with intentionally undisclosed criminal records. Fingerprint checks of these individuals would have thwarted most of these schemes.
In 1996, the state of Ohio went to an "all fingerprint" system for noncriminal justice purposes. In 1999, that state alone performed more than 490,000 background checks, and determined that it "caught" more than 9,000 individuals with criminal records who would not have been identified as criminals had name checks (and other descriptors) been used in lieu of fingerprints. The significance of this figure cannot be overstated, inasmuch as these 9,000 applicants knew that they were being fingerprinted and that such fingerprints were going to be analyzed. It is our opinion that the number would have been much higher had these applicants been required to undergo backgrounding predicated instead upon name and descriptor check.

In addition to the statistical evidence, various specific incidents warrant your attention:

In 1998, New York City Patrolman Anthony Mosomillo died because a fugitive parolee in police custody on an unrelated charge was released on bond by using fake identification to evade detection during a name-based check. Once released, he was able to assault and kill Officer Mosomillo. As a result of that incident, New York City abandoned the name check policy it had in effect since the mid-1970s and now uses only fingerprint-based identification prior to releasing arrestees on bond, explicitly recognizing that name-based identification is not only untrustworthy, but dangerous.
Some states even go so far as prohibiting placement of personnel until after the results of a fingerprint-based criminal background investigation are available. California, which experienced firsthand the dangers of placing unidentified criminals in positions wherein they could prey upon those most at risk, expressly forbids the employment of applicants during the pendency of their fingerprint-based check. Section 45125 of the California Education Code mandates that during the background investigation, "[i]f a school district is notified by the (California) Department of Justice that it cannot ascertain the required information about a person, the school district may not employ that person until the (California) Department of Justice ascertains that information." This is not a unique statutory provision or policy initiative.

Of course, the preceding statistical and anecdotal information only tell a part of the story, that of the "false negatives." They fail to relate the consequences of the "false positives:" those persons who are inaccurately and unjustly identified as having a criminal record because of similar descriptors.

Statistics maintained by the FBI reflect that approximately 8.7 percent of the 6.9 million civil fingerprint submissions in FY 1997 were matched with criminal records. Yet, when name check inquiries of all types were made on NCIC's III for calendar year 1997, an astonishing 39.34 percent of the 33,753,306 inquiries were "hits." Because of FBI concern that the majority of these inquiries were in response to what was perceived as possible criminal activity (wherein recidivism might upwardly skew the percentage), we removed those inquiries from our analysis. The remaining 6,049,649 inquiries were conducted on individuals for purposes such as national security checks under the Security Clearance Information Act, 5 U.S.C. §9101, and for criminal justice employment. Logically, these populations should have no greater incidence of prior criminality than the general population and, most likely, reflect a smaller incidence of prior criminality than the 8.7 percent reflected by the general population screened using fingerprint submissions. The results were nonetheless astonishing.

Of these 6 million noncriminal justice inquiries, 977,426, or some 16.2 percent of the names checked, resulted in "hits". In light of the 8.7 percent of civil applicants which are historically identified by fingerprints with criminal records, we can conclude that at least 7.5 percent (the 16.2 percent less the 8.7 percent), are "false positives." To translate such percentage into real terms, had name checks been made of the 6.9 million civil applicants, some 517,500 "false positives" would have resulted, and these individuals would have been, at least temporarily, falsely identified with criminal records. Stigmatization is the least of the consequences of "false positives:" because of the confidentiality typically associated with personnel decisions and criminal history record information, an applicant incorrectly identified may well not have an opportunity to challenge the incorrect determination and denial of employment or volunteer opportunities.

The validity of this calculus was again confirmed by another CJIS Division study. A statistical review of the first seven months of FY 1998 disclosed that of the 3,038,497 civil fingerprint cards processed, 382,063 individuals (or some 12.6 percent) were tentatively identified as having criminal histories by name checks. However, when fingerprint comparisons were subsequently made, only 260,159 (or 68.1 percent) of those tentatively identified were positively identified. The remaining 121,904, or some 31.9 percent of those tentatively identified, were "false positives."

Recognizing the forces which call for the instant legislation, in June 1998, the Attorney General commissioned a task force consisting of the Bureau of Justice Statistics, the Florida Department of Law Enforcement, the Department of Housing and Urban Development, and the FBI, to study the issue of name checks for noncriminal justice purposes. In July 1999, the Interstate Identification Index Name Check Efficacy: Report of the National Task Force to the U.S. Attorney General (Name Check Efficacy Study) was concluded. The Name Check Efficacy Study rendered the following conclusions which support the FBI's position:

FBI fingerprint searches are highly preferable to III name checks as a means of criminal history screening. Individual fingerprint patterns are known to be unique. For this reason, fingerprint comparison is, and has for many decades been, the accepted standard for establishing positive identification of criminal history record subjects in the United States. Modern automated fingerprint identification systems are believed to produce identification error rates of less than one percent. Compared to FBI fingerprint searches, III name checks result in appreciable numbers of both false positives and false negatives.
In this regard, the study suggests that if the 6.9 million civil applicant background checks processed by the FBI in 1997 had been processed by III name checks alone, approximately 346,500 false positives and 70,200 false negatives would have resulted. In addition, it is clear from the number of name checks being conducted at the state level against state databases that the absolute number of false positives and false negatives would be significantly higher in a national system that permitted III name checks in lieu of fingerprint searches. The convenience of name checks would encourage many more requests for national criminal record searches than the 6.9 million submissions received by the FBI in 1997 under current procedures requiring the obtaining and submission of fingerprints.
Since the prospect of fingerprint-based criminal history record screening deters persons with criminal histories from applying for positions for which they are not fit, it can be inferred that the incidence of false negatives documented by the study of Florida civil applicants would be higher in an environment in which name search-only background checks were permitted.
The Task Force acknowledges that a number of state criminal history record repositories have for many years used name checks as the sole method of searching their state criminal history files for a variety of noncriminal justice purposes. A primary rationale for these uses of name checks is that fingerprint-based searches commonly entail long mailing and processing delays which are inconsistent with the needs of record users with time-critical requirements. In addition, the process of having one's fingerprints taken for background screening purposes may be inconvenient or even impracticable and usually involves the payment of a fee.
The development and implementation of automated fingerprint identification systems and related technologies providing for the electronic capturing and transmission of fingerprint images has made it possible to dramatically reduce fingerprint transmission and processing delays at both the state and federal levels.

Hence, the Name Check Efficacy Study confirmed the FBI's position and the position of law enforcement in general that fingerprints should be required for noncriminal justice access to CHRI.

As many of you are aware, the CJIS APB has repeatedly weighed in against name checks for other than criminal justice purposes. Moreover, at the June 1997 CJIS APB meeting in St. Petersburg, Attorney General Reno, in speaking in support of Title I of the National Criminal History Access and Privacy Act, explicitly affirmed "the belief reflected in the Interstate Compact that fingerprint-based [checks] (sic) are better than name-based ones...." The Attorney General applauded the Interstate Compact as "a sensible and an efficient approach to the interstate exchange of criminal history information for noncriminal justice purposes. The Interstate Compact will require the certainty which comes from fingerprint-based identification prior to the release of criminal history information." As the Attorney General recognized, although there are some time and cost savings associated with the name-check system, its imperfection stands in stark contrast "to the absolute accuracy and reliability associated with fingerprint-based background checks.

Reliance on III name checks alone as a method for criminal history record screening can mean that, on a national basis, large numbers of persons who do not have disqualifying criminal records may be unfairly excluded. More importantly, large numbers of persons may be permitted to volunteer in positions for which they are unfit and in which they pose societal risks because their criminal records are not discovered.

Recent federal legislation also serves to reaffirm the commitment to fingerprints. The National Crime Prevention and Privacy Compact, Title II of Pub. L. 105-251 (the Compact), requires that "Subject fingerprints or other approved forms of positive identification shall be submitted with all requests for criminal history record checks for noncriminal justice purposes" (Article V[a]). Six states (Colorado, Florida, Georgia, Iowa, Montana and Nevada) have adopted the Compact and its governing body, the Compact Council, has met and is implementing the Compact.

In addition to the Compact, recently enacted criminal backgrounding legislation specifically requires fingerprints. Pub. L. 105-277 (concerning nursing homes and home health care agencies) and the Volunteers for Children Act (Section 221 and 222 of Pub. L. 105-251), which amended the National Child Protection Act, impose a fingerprint requirement for noncriminal justice access.

Numerous federal statutes also authorize fingerprint-based access to FBI CHRI for noncriminal justice purposes. See, e.g., 15 U.S.C. §78q, concerning the securities industry; 7 U.S.C. §21(b)(4)(e), concerning the Commodity Futures Trading Commission; 10 U.S.C. §520a, concerning military recruiting; 42 U.S.C. §2169, concerning Nuclear Regulatory Commission regulatees; 5 U.S.C. §9101, concerning the five Security Clearance Information Act (SCIA) agencies; Pub. L. 100-413, the Parimutuel Licensing Simplification Act (appearing at note to 28 U.S.C. §534); 49 U.S.C. §44936, the Aviation Security Improvement Act of 1990; 42 U.S.C. §13041, concerning day care providers at federal facilities; 25 U.S.C. §3205-07, concerning child care workers on Indian reservations; 25 U.S.C. §2701 et seq., the Indian Gaming Regulatory Act; Pub. L. 105-277, concerning workers at nursing homes and home health care agencies; and 42 U.S.C. §5119a, the National Child Protection Act, as amended by the Volunteers for Children Act.

In light of the significant impact upon the states which contribute 94 percent of the CHRI in the FBI database, a survey was conducted commencing January 27, 2000, which indicated that only 10 of 50 states responding viewed favorably a proposal which would expand name checks to the extent envisioned by the instant legislation.

These are serious and complicated areas for discussion, and the FBI appreciates the opportunity to provide the Subcommittee with our views. Be assured that the FBI is continuously concerned with improving its service to both the criminal justice community and other agencies authorized access to our system of records.