The past two decades have seen a surge in demand for criminal history record background checks for noncriminal justice purposes—such as screening an individual’s suitability for employment, licensing, or placement in positions of trust.
This demand is driven by public and private employers who want to exercise due diligence in protecting employees, business assets and the public, as well as by nonprofit organizations, who want to screen their employees and volunteers who work with vulnerable populations such as children or the elderly.
The demand is such that noncriminal justice background checks now eclipse background checks for criminal justice purposes, according to published reports. Hundreds of laws passed at both the federal and state levels allow such checks and Pub. L. 92-544 empowers the FBI to exchange identification records with officials of state and local governments for purposes of licensing and employment if authorized by a state statute that has been approved by the U.S. Attorney General.
Employers and volunteer organizations interested in screening potential employees or volunteers have several available options. Many private companies provide criminal record check services for fees ranging from a few dollars to more expensive and extensive background checks. However, these checks are primarily named-based, although they may include other identifiers such as Social Security number or date of birth, and can be circumvented by an individual using an alias or a counterfeit identification document.
Meanwhile, criminal record repositories in some states maintain websites where the public can conduct name-based background checks for a fee.
SEARCH has long been involved with efforts by the States and Federal Government to tackle the legal, policy, and operational aspects of criminal history background checks for noncriminal justice purposes. For example:
- We helped states establish and maintain sex offender registration and community notification programs, as required by federal statutes. All states and many Indian tribes now maintain publicly accessible online sex offender registries, which are now available via the Dru Sjodin National Sex Offender Public Website
- We have supported the creation and ratification of the National Crime Prevention and Privacy Compact, which created a Compact Council to oversee noncriminal justice use of the Interstate Identification Index.
- We provide assistance, guidance and expertise on background check initiatives, including the National Instant Criminal Background Check System (NICS) and implementation of the NICS Improvement Amendments Act of 2007.
We also offer information and guidance to private-sector employers seeking advice on conducting background checks.
Montana was the first state to ratify, on April 8, 1999, and New York the latest, on March 28, 2013. The compact’s provisions apply between the States that ratified the Compact and the Federal government.
Eleven other states and territories have signed a Memorandum of Understanding through which they effectively subscribe to relevant directives and rules of the Compact Council: American Samoa, Guam, Illinois, Kentucky, Mississippi, Nebraska, New Mexico, North Dakota, Puerto Rico, South Dakota and Virginia.
Nearly a dozen SEARCH Members serve on the Compact Council, with Idaho Member Dawn Peck currently serving as Council Chair and Missouri Member Major Tim McGrail as Vice Chair.
States Control Record Access. Congress’s approval of the Compact, part of the Crime Identification and Technology Act of 1998, gives states control when other states or the Federal government access their criminal history record information through III for noncriminal justice-purpose checks.
NICS: National Instant Criminal Background Check System
The Brady Handgun Violence Prevention Act of 1993 required the U.S. Attorney General to establish a National Instant Criminal Background Check System (NICS) that firearm dealers could contact by telephone or other electronic means for information on whether a firearm transfer violates federal or state law.
The NICS became operational on November 30, 1998, and is administered by the FBI. It was designed to immediately respond to background check inquiries for prospective firearm transferees. When a firearm dealer initiates a NICS background check, a name and descriptor search is conducted to determine whether the potential purchaser has any matching records in three nationally held databases:
- Interstate Identification Index (III), a database of criminal history record information
- National Crime Information Center (NCIC), which includes information on persons subject to civil protection orders and arrest warrants
- NICS Index, which includes the information contributed by Federal and state agencies identifying persons prohibited from possessing firearms who are not included in the III or NCIC, such as persons with a prohibiting mental health history or who are illegal or unlawful aliens.
If a NICS check identifies a person as falling within a prohibited category, the FBI advises the Federal Firearms Licensee (FFL) that the transfer is denied. Individuals can appeal denials and seek the correction of any inaccurate or incomplete information in the FBI databases by either applying to the FBI or the Federal or state agency that contributed the information to the FBI.
SEARCH participates in NICS record reporting and quality improvement initiatives, and provides technical assistance to states that receive NICS improvement grants from the U.S. Department of Justice. In addition, SEARCH responds to question from Congress and the Administration about NICS and the states’ role in the system through outreach efforts, such as our NICS improvement recommendations report.
SEARCH Recommendations: Improving the National Instant Background Screening System for Firearms Purchases
As part of its outreach on NICS, SEARCH first prepared this document in February 2013 to respond to questions from Congress and the Administration. It contains important facts and background about NICS and the states’ role in the system. It includes SEARCH Member recommendations regarding funding and support for this critical system, and provides thoughts about—
- how states may use funding to enhance their participation in NICS,
- how Congress can help remove the obstacles to qualifying for and successfully using NICS funding, and
- the impact of expanding background checks to all private sales.
As SEARCH continues to gather additional data and research, we will update this report.
Some of our NICS and noncriminal justice background check system resources are as follows:
- SEARCH Membership Group resolutions, many of which address issues related to noncriminal justice background checks and the NICS
- Download these SEARCH publications on aspects of noncriminal justice background checks:
- Report of the National Focus Group on the Retention of Civil Fingerprints by Criminal History Record Repositories
- Report of the National Focus Group on Emergency Housing and Criminal Record Checks: The Hurricane Katrina Experience
- Report of the National Task Force on the Criminal Record Backgrounding of America
- Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information
- Public Attitudes Toward Uses of Criminal History Information
- Report of the National Task Force on Federal Legislation Imposing Reporting Requirements and Expectations on the Criminal Justice System
- NICS Improvement Amendments Acts of 2007
- The NICS Improvement Amendment Act: State Estimates of Available Records Information Collection