The FBI is building a national watchlist that gives companies real time updates on employees
By Ava Kofman
Feb 4 2017
The 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 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 (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 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.
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. As documentsobtained by EPIC show, the FBI’s use of facial recognition searches is increasing and the NGI database continues to expand.
In January, EPIC obtained 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.