Governor Set to Sign Legislation Expanding Employee Background Checks

Authors: Ryan P. Farrell, Matt Marcellis

July 25, 2018

On May 25, 2018, the General Assembly passed Senate Bill 2907 and on June 22 sent it to Governor Bruce Rauner where it awaits his signature. The bill, which amends the current Criminal Identification Act, would allow agencies in Illinois that can either perform or receive national criminal background checks to participate in the FBI’s Next Generation Identification (NGI) Rap Back Service. This service, which will be administered in Illinois by the State Police, allows authorized agencies to receive notification of arrests anywhere in the country on employees who have had their fingerprints submitted to the FBI database. Such fingerprints could be taken as part of a background check run at the time of hire. This service eliminates the need for repeated background checks on a person from the same applicant agency. Prior to this legislation, employers in Illinois only received a one-time snapshot of an employee’s criminal record at the time of hire along with updates only on any crimes the individual committed within the state. Participation in the FBI’s service would allow employers to receive real-time notifications of infractions of law anywhere in the U.S.

This capability has obvious benefits for agencies employing persons in positions of trust, such as school teachers or daycare workers, but the program raises some potentially serious issues as well. The American Civil Liberties Union (ACLU) of Illinois is opposed to the measure because, as a part of the system, the fingerprints submitted to the FBI database are retained by the federal agency indefinitely, and the FBI is not restricted to using the prints solely for the Rap Back System. Furthermore, employers could be notified of mere arrests, not just convictions, potentially impacting an employee’s livelihood before guilt of any wrongdoing is proven. While the Illinois State Police indicate they do not intend to send out notifications of arrests, but rather only convictions, the possibility remains.

A second concern is the accuracy of the information the Illinois State Police could relay to employers. In 2004, the National Institute of Standards and Technology reported that fingerprint identification was 99.6% accurate. This is an impressive figure to be sure, but it still allows for a .4%, or 1 in 250, chance that there will be an error. Add to this the fact that the FBI’s fingerprint database, the Integrated Automated Fingerprint Identification System (IAFIS) which the Rap Back system draws from, had more than 70 million prints in the criminal master file alone as of 2012. Countless law enforcement agencies across the county access this FBI system daily to look for matches with alleged perpetrators. While the chance for error is low, the sheer volume of prints and cross-checks that occur make it a virtual certainty that errors will occur.

While there are definite benefits to the FBI’s NGI Rap Back Service for municipalities employing persons in positions of trust, there are also potential issues to consider. These include the security of the prints submitted to FBI’s system, the potential for misuse, and the possibility of a false criminal identification greatly impacting an innocent employee. We will be closely monitoring whether the governor chooses to sign Senate Bill 2907 and make the FBI NGI Rap Back Service available to Illinois employers.