As was noted here earlier, the FBI's Next Generation Identification (NGI) system has rolled out
, pretty much right on schedule and well ahead of the Privacy Impact Assessment it hasn't updated since the announcement of the "system upgrade" back in 2008.
EPIC has obtained another load of documents from an FOIA request
dealing with the "Rap Back" portion of the NGI system, one that provides constant monitoring of certain people -- like suspected criminals, people on parole, employees with security clearances and "trusted positions." Notably, the Rap Back program does not
track employees of the criminal justice system, and nothing in what's been obtained even suggests it can be used that way.
The FOIAed documents run 202 pages [pdf link
] with tons of duplicate presentation slides and long lists of fully-withheld documents. As is par for the course with sloppy fulfillments like these, the redactions are inconsistent
, raising questions about the legitimacy of the exemptions used to justify removal in one place but not another. For instance, two back-to-back copies of the same slide show the FBI has an interest in redacting "DHS" [using exemption b7(e)
-- "disclosure of techniques and procedures for law enforcement investigations"], but not a consistent
Elsewhere, the FBI goes into more specifics as to who's included in the term "trusted positions" -- something it offers a lifetime of active monitoring for if that's what the "customer" wishes.
It is imperative that the FBI maintain a complete CHRI database in order to provide customers with information necessary to make informed decisions regarding the backgrounds of individuals whether for criminal justice purposes, noncriminal justice purposes for employment, licensing, and gun permit matters, or for purposes of national and international security. Disposition data is information pertaining to the resolutions of arrest charges or the custody or supervisory status of subjects subsequent to convictions. Disposition data is the core of the criminal history database.
Further details indicate that "trusted positions" are actually just a variety of caretakers, rather than those in positions that contain a healthy mixture of power and access (i.e., law enforcement members).
Availability of complete computerized criminal records is vital for criminal investigations, prosecutorial charging, sentencing decisions, correctional supervision and release, and background checks for licensing, purchasing of handguns, and applying for child-care positions or other responsibilities involving children, the elderly, and the disabled.
While it is definitely preferable to have someone with a clean record providing caretaking services, you have to wonder why the FBI is so focused on monitoring this specific group of employees. There's been a push to include this group in its Rap Back program pretty much since the beginning. Further down in the document, presentation slides suggest making inroads with legislators to turn the FBI's monitoring preference into an integral part of federal law.
The FBI wants officials to target legislators as "champions" and includes documentation on existing and upcoming legislation where wording could be inserted to make participation in Rap Back mandatory.
Bill Name: No Child Left Behind Act of 2007
Sponsor: Richard Burr 07/12/07
Cosponsor: 0-D, l-R (as of 08/24/07)
Sections 4222 and 4223 would require the Office of Justice Programs to develop model screening guidelines to include a criminal background check. The Secretary of Education is authorized to award grants to those entities that have conducted background checks on mentors in accordance with these guidelines. The bill does not indicate how these checks would be conducted.
Bill Name: Patient Safety Abuse Prevention Act of 2007
Sponsor: Herb Kohl 06/07/07
Cosponsor: (as of 08/24/07)
Section 3 of the bill expands the pilot program, as established under Section 307 of the Medicare Prescription Drug, Improvement, Modernization Act of 2003, to be conducted on a nationwide basis. Section 4 of the bill requires a state and FBI fingerprint criminal history background check on direct patient access applicants and employees of skilled nursing facilities and long-term care facilities. It also requires the state to develop "rap back capability. Section 5 also requires the FBI to develop "rap back" capability by January 1, 2011. The FBI would only be authorized to charge the actual costs of conducting the criminal history background check.
Elsewhere, the documents note that the FBI will be mixing its criminal and noncriminal databases -- for efficiency.
The existing LAFIS criminal and civil repositories are maintained as separate and distinct databases that do not allow for the automated transfer of records among repositories. The proposed IAFIS design change combines the records from the civil and criminal repositories into an interoperable repository. The repository design will facilitate the transition, search, addition, consolidation, modification, expungement, response generation, and file maintenance of criminal and civil information; provide the ability to search the civil records with remote latent fingerprint submissions; and support user required fingerprint search and notification capabilities. With this initiative, the records from the civil and criminal repositories will be maintained in one interoperable repository.
It also notes that in order to keep its fingerprint database up to date, it will need to pull from civil fingerprint records.
And, finally, sitting by itself, unduplicated anywhere else in the 202 duplicate-ridden pages, is a single slide dedicated to mandatory privacy considerations -- neither of which have been fulfilled even though the program is now fully operational.
There's no discussion included as to why
the FBI is so focused on including caretakers and childcare providers in its lifelong monitoring program. In terms of its other stated interests (national security/counterterrorism, support for law enforcement), this seems like a much lower-level concern. While these positions would ideally be filled by citizens with clean records, constant updates from the criminal justice system seems a bit much -- especially when good employees may be forced out of work for unrelated infractions, like being arrested for exercising their First Amendment rights (filming public officials, attending protests) or marijuana possession.
It is notable that a legislative attempt to make this sort of monitoring mandatory for government contractors providing security services in war zones was shot down by the executive branch (p. 143). Apparently, it's more important to track caretakers than it is to ensure those operating security teams overseas (with a minimum of oversight) aren't former (or current) felons.
In all of the pages released, nothing deals directly with the program's privacy impact or its deliberate exclusion of criminal justice employees. No concerns are raised and no suggestions are made that law enforcement entities might do well to include their officers in the Rap Back monitoring system. And, even though the documents range from 2008-2011, there are no updated statistics that suggest the facial monitoring software
has improved over its 20% error rate
. Presumably, it has, but the FBI seems to feel the error rate isn't worth discussing (or releasing), even though that program actually went live in a four-state rollout three years ago.
The mixing of civil and criminal data should be the biggest concern, especially if the program pulls potential mug shots from both when seeking matches for facial recognition. There's a good reason to keep these separate. Blending both for efficiency's sake only makes the existing problem -- law enforcement's disinterest
in ensuring that arrestees that were never charged or had records expunged are removed from the system -- even worse. Now, when Rap Back notifications are delivered, they have a higher potential to return data on noncriminals.