One simple step Congress and the courts must take to increase accuracy in background checks
© Greg Nash

In an age of unheard of gun violence in workplaces, schools, places of worship and other vulnerable areas, there is an understandably audible debate over how background checks are conducted and who should be subjected to them. To ensure the utmost protection for the public, it is important to understand who does what kinds of background checks and how policymakers’ decisions – no matter how seemingly small – impact the overall effectiveness of a background check.

Background checks help protect our homeland, our workplaces, our citizens and our assets from bad actors. It is important to note the distinctions between different kinds of background checks. Currently, when a gun is purchased from a Federal Firearm Licensed (FFL) seller, a background check is performed through the National Instant Criminal Background Check System (NICS). This is a one-time instant background check as opposed to the more thorough background checks performed by a third party known as a Consumer Reporting Agency (CRA) that research and compile data from both private and public sources for purposes including employment, tenant and volunteer screening.

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The accuracy of any background check is dependent on access to personal identifiers such as complete name and complete date of birth (DOB). To some, it seems a no-brainer that this information would be available to those conducting background checks, especially since every check is done with the permission of the subject. However, that is not always the case. At the state level, DOBs are generally available in all state court repositories. At the federal court level, however, DOBs are systemically unavailable in the federal record keeping system known as PACER.

This dynamic makes it extraordinarily difficult for professional background screeners to definitively determine whether or not a federal criminal record belongs to a particular individual, especially when the individual has a common (or even relatively common) name. Imagine how many John Smiths have committed federal crimes like drug trafficking, weapons offenses, identity theft and wire fraud versus the many law-abiding John Smiths who are simply looking for a job. This can lead to false negatives where a professional background screener does not report potential federal criminal record information and potentially compromises the safety and security of others because they can’t definitively link the record to the consumer when the only identifier available is the name.

The inability to positively identify individuals with federal criminal records has extraordinary unintended consequences. In addition to those previously mentioned, federal crimes include terrorist threats, kidnapping, embezzlement, bomb threats, and financial and internet crimes. Many background screeners perform background checks on government contractors working in sensitive positions to ensure they don’t have these offenses on their record. Financial institutions need to identify individuals who have committed financial crimes. Additionally, the lack of identifiers in systems such as PACER can also impact the federal government, which consistently has a backlog of Office of Personnel Management background checks – a backlog the Government Accountability Office recently labeled as “high risk.”

It is imperative that any personal information is handled with the utmost care concerning the security of one’s identity in a manner that continues to prioritize public safety as well. Keep in mind that CRAs already have the consumer’s identifying information and consent to conduct a background check. Simply having the ability to provide the DOB to PACER and receive confirmation of a match would be a major step forward. DOB is not a gateway identifier to financial fraud or identity theft. Of the 48 states with data breach notification legislation, 47 do not classify DOB as an identifier that, if breached, would require notification. Lastly, CRAs are trained to properly handle personally identifiable information and are subject to strict regulations under the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act of 2003. They are also regulated extensively by federal, state and local rules pertaining to data security and privacy laws. 

The remedy to this dilemma is a very simple fix. Congress and the Judicial Conference, the national policy-making body for the federal courts, should take steps to fix the problem and ensure access to DOB in PACER. Doing so will help ensure those with access to some of the nation’s most sensitive facilities and our communities’ most vulnerable populations don’t also have federal crimes on their records that go undetected.

Melissa Sorenson is the executive director of the National Association of Professional Background Screeners.