The Austin City Council last month passed rules mandating fingerprint-based background checks for prospective ridesharing drivers. These new requirements were part of wider changes to Austin’s ordinance regulating transportation network companies like Lyft and Uber.
Under the new ordinance, to be eligible as a TNC driver, an individual must “provide a complete set of fingerprints and other identifying information [for] a national background check through the FBI.” The requirement, which is slated to go into effect over the next year, has proved highly controversial. Both Uber and Lyft have suspended operations in other cities that have imposed fingerprint-based background checks, citing concerns that the hassle would discourage individuals from becoming drivers. A petition drive to overturn the new requirement is currently being circulated in Austin.
Evaluating the new requirement is difficult, as the ordinance deliberately left several key questions unresolved. For example, while the ordinance states that an individual must “pas”” a criminal background check to be eligible as a TNC driver, it does not specify the offenses for which a conviction would be a disqualifier. Instead, the ordinance states that a list of prohibited offenses will be developed later in a separate ordinance.
Austin’s current regulation of taxis does not bar drivers who have been convicted of “a criminal homicide offense; fraud or theft; unauthorized use of a motor vehicle; prostitution or promotion of prostitution; sexual assault; sexual abuse or indecency; state or federal law regulating firearms; violence to a person; use, sale or possession of drugs; or driving while intoxicated” so long as the driver has shown “good conduct” since release.
In any event, while most of the controversy has focused on the relative safety of TNCs versus traditional taxis, less attention has been given to the reliability of the FBI background check system. This is a mistake.
Fundamentally, the FBI criminal history database is not a database of convictions, but a database of arrests. About half the records in the database do not include information about the final disposition of the case (e.g., whether the arrest resulted in a conviction, acquittal, expungement or if the case was even pursued). That’s significant, because around a third of felony arrests do not lead to a conviction. Among those who are convicted, 30 percent are convicted of a different offense than the one for which they initially were charged (often a lesser offense or misdemeanor).
Further, while the FBI provides a process for individuals to challenge a faulty background information, this process can be time-consuming and difficult to navigate. As a report by the National Employment Law Project states:
When a faulty FBI record stands between the worker and the government agency that is responsible for certifying suitability for employment, job seekers are frequently unable to navigate the complex maze to correct the record and therefore lose out on job opportunities through no fault of their own. Because many criminal justice records are not readily available, individuals often have to travel directly to the sentencing court or arresting agency to obtain proof of the final disposition—which may mean traveling to a courthouse or law enforcement agency in a different county or even state. If an arrest did not result in actual charges, there is likely no court record available. In that instance, the individual must ‘prove a negative’ and obtain paperwork verifying that no official action was taken after the initial arrest.
The federal government itself recognizes the limitations of using the FBI database for background checks. In 2009, the FBI’s Advisory Policy Board formed a Dispositions Task Force to look at the lack of completeness in criminal history records. But while the government has identified the problem, there is currently no timeframe in place to correct it.
Because so many of the FBI’s records are incomplete, the checks can unintentionally become a means of injustice. As Sen. Chuck Grassley, R-Iowa, (chair of the Senate Judiciary Committee) put it recently:
[I]f an employer uses the [FBI] database for hiring purposes, the records can be inaccurate and old. And, just as bad, the database includes arrest records that never resulted in a conviction. It’s unfair that an arrest—not resulting in a conviction—is included in a criminal background check. And, while there is a process by which people can contest their records being in the database, there are flaws in that process that need to be looked and changed.
Until this happens, regulators should be wary of requiring individuals to pass these checks as a condition of employment.