The FBI isn’t Santa Claus: Fix your lists and check them twice
The recent tragedy in Orlando has set off yet another contentious debate over the issue of gun control. On a June 13 conference call Sen. Chuck Schumer, D-N.Y., explained how the attack motivated Democrats to renew their push to pass S. 551, the Denying Firearms and Explosives to Dangerous Terrorists Act of 2015, which would direct the attorney general to block individuals on the federal Terrorist Screening Center’s “No Fly List” from being able to buy firearms.
At first blush, the logic of the proposal appears sound: if someone isn’t safe enough to board a plane, they certainly can’t be trusted with a weapon. But while this notion might pass the focus-group test, it’s yet another example of policymakers reaching for an error-filled, politically convenient solution to a delicate and far more complicated issue.
Some obviously raise Second Amendment concerns about the proposal. My primary concern is the inherent flaws in the No Fly List, which has made travel all but impossible for numerous innocent Americans. The TSC – a division of the FBI – offer little transparency as to who exactly is on the list, and no due process that would allow the listed to petition to be taken off.
According to a 2013 Intercept report, the No Fly List contained some 47,000 names. Little is known publicly about how the list is constructed, but under the notably dubious standard that has been made public, all a federal agent needs is “reasonable suspicion” that an individual is a threat or connected to terrorism. For sure, this could mean real “bad guys” with connections to terrorism. But it could also include anyone who has ever taken to social media to criticize the government, the war on terror and or the war on drugs. It could include anyone who has ever traveled abroad or uses an encrypted phone.
Famous public servants like Rep. John Lewis, D-Ga., and former Sen. Ted Kennedy, D-Mass., have at one time or another been included on the No Fly List. In fact, the ABC hit comedy Modern Family had a plotline where the precocious ten-year-old Manny Delgado is held up at the airport because he is somehow “accidentally” on the No Fly List. This isn’t just Hollywood fiction but actually happened to an 18-month-old child in 2012. In fact, back in 2008, then-Homeland Security Secretary Michael Chertoff admitted: “We do have circumstances where we have name mismatches.”
Many individuals on the no-fly list don’t even know they are on it until they are in the TSA line at the airport. There is little or no opportunity for the “no flyer” to have a hearing or prove innocence. For anyone not a member of Congress or in a fictional sitcom the process of getting off the flawed list is “basically impossible.”
Instead of rushing to pass legislation that would bar Americans from exercising their constitutional rights, members of Congress should re-examine the federal No Fly List as well as other flawed lists assembled by the federal government that may unfairly impede Americans from other important aspects of the lives, like getting a job.
Last month, residents of Austin, Texas voted to uphold a new city-passed ordinance requiring TNCs (transportation network companies) like Uber and Lyft to require all of their drivers in the city to pass FBI fingerprint-based background checks. The thinking was that the FBI-run database would keep customers safe. But the FBI’s Criminal Justice Information System is seriously flawed, with incomplete, missing and erroneous data. The requirement to use a faulty system prompted Uber and Lyft (who already do their own extensive background checks) to pull out of Texas’ capital city.
Uber and Lyft have good reason to be dissatisfied. A 2013 study by the National Employment Law Center (NELC) found the FBI system “routinely fail(s) to report important information on the outcome of arrests, information that is often beneficial to workers subject to these reports.” Roughly half the records do not include the case’s final settlement, such as whether the individual was arrested but never charged, or whether he or she eventually was acquitted of the charges. The records often aren’t even updated appropriately if an individual’s record was expunged. These inaccuracies have a negative impact on Americans, who may have trouble finding employment even though they are in no way a threat to coworkers, employers or customers.
Former Attorney General Eric Holder echoed NELC’s findings in a recent letter explaining how using the FBI database for employment and licensing background checks goes beyond the scope of database’s clearly defined purpose to aid law enforcement during investigations:
It facilitates investigators who are then expected to follow up on information found in the database to determine whether it is complete or not. It was not designed to be used to determine whether or not someone is eligible for a work opportunity. Relying on it for that purpose is both unwise and unfair.
No one questions the importance of the FBI keeping our nation safe. Unfortunately the inaccuracies in employment background checks and the No Fly List reveals operational deficiencies. In order to correct these problems, as well as to promote security and privacy, Congress should re-examine the ways these lists are used. The No Fly List should not trap law-abiding citizens from being able to travel. Furthermore the FBI fingerprint database should not continue to thwart individuals from finding stable employment.
