Transcription

Uberand Lyft:Fingerprint-BasedBackgroundChecks Essentialto Assure Public Safety

OverviewThe issue of public safety protections at Uber and Lyft is generating a great deal ofdebate and controversy, specifically in connection with their policies against fingerprint-based background screening.In a study, the Society for Human Resource Managementfound that 87% of all businesses perform backgroundchecks in hiring decisions.1 Either or both of the followingtechniques are commonly used: A name-based background check (or biographic check)searches the applicant’s reported name against relevantdatabases, comparing records that have the samename. Fingerprint-based background checks (or biometricchecks) use the fingerprints of the individual to matchagainst a law enforcement database, comparingrecords that have the same print (even if the names aredifferent).Uber and Lyft clearly prefer to only use name-basedbackground checks, and exclude fingerprint basedbackground checks from their driver qualification process.(A notable exception is New York City, where fingerprintbased background checks are required and Uber hasdeclared its intention to remain for the long term.)2Elsewhere, both Uber and Lyft have fought stronglyagainst the efforts to require fingerprint-based criminalbackground checks, claiming that they are unnecessary,onerous, ineffective, and intrusive.Uber and Lyft’s stance is in sharp contrast to thewidespread and growing use of fingerprint-basedbackground checks. These checks are now required foremployment in a wide variety of professions that involvethe safety and security of the public, access to sensitiveinformation, unescorted access to restricted areas, orunmonitored access to vulnerable populations.A wide range of employees are required by local publicsafety statutes to undergo fingerprint background checks,including taxi drivers, airport workers, teachers, realestate professionals, mortgage brokers, security guards,day care workers, home health aides, nurses, governmentemployees, and even most school volunteers.Uber and Lyft’s opposition to fingerprint-basedbackground checks unfortunately comes at a high cost to2public safety. The record of safety incidents involving thetwo services continues to grow. In the latest high-profileincident, an Uber driver who had passed the company’sbiographic screening procedure was later discovered tobe a twice-convicted felon with an outstanding warrant.3These incidents have prompted state, local, and nationalgovernments around the world to consider mandatingfingerprint background checks for Uber and Lyftemployees in the interest of public safety.4Rather than comply, Uber has pulled out of cities thatrequire such checks and threatened to pull out of citiesthat are considering such measures. Uber has alreadyabandoned service in Galveston and Corpus Christi,and has said that it will leave Miami, Houston, and otherlocalities if full background checks are mandated.5Uber and Lyft recently poured millions into a propositionto repeal an Austin ordinance that would requirefingerprint checks for drivers from both companies.6Notwithstanding a great deal of publicity and anaggressive campaign, the proposition was resoundinglydefeated by voters.7 As a result, Uber and Lyft havealso stopped operating in Austin. Almost immediatelythereafter, RideShare Austin, an innovative tech andcommunity joint project emerged, which has alreadyindicated that it will abide by fingerprint backgroundcheck requirements in the interest of public safety.8These checks are now required for employmentin a wide variety of professions that involve thesafety and security of the public, access to sensitiveinformation, unescorted access to restricted areas,or unmonitored access to vulnerable populations.Uber and Lyft continue to actively campaign againstfingerprint-based background check requirements in theUnited States and abroad.9

The Need for Substantive DebateWhile the political battle over fingerprint backgroundchecks for Uber and Lyft drivers continues to escalate,little attention has been focused on the core reasoning oftheir position.As a non-profit trade association representing the identityand biometrics industry, the International Biometrics Identity Association (IBIA) seeks to set the record straightabout the value and efficacy of fingerprint-based criminalbackground checks. Only a rigorous and comprehensivebackground check that includes a search of FBI and statefingerprint-based systems, in addition to other potentialsources of biographic background information, willprovide Uber and Lyft with all the necessary informationto most effectively protect the safety and security of theirpassengers.Uber and Lyft recently poured millionsinto a proposition to repeal an Austinordinance that would require fingerprintchecks for drivers from both companies.Notwithstanding a great deal of publicityand an aggressive campaign, the propositionwas resoundingly defeated by voters.By providing policy-makers and the public with anunderstanding of fingerprint background checks and thereasons that they are a key addition to biographical datachecks, IBIA hopes to shed light on the safety and securityimportance of requiring Uber and Lyft to employ thesebackground check tools.Fingerprint background checks are highly accurate andreliable. The technique has been used worldwide fordecades to provide governments and employers the mostcomprehensive link to past criminal behavior. Uber andLyft driver applicants can conveniently access hundredsof service provider facilities throughout the U.S. forfast collection of all ten electronic fingerprint images.Fingerprint collection service facilities are especiallyprevalent in the large urban areas where Uber and Lyftoperate. In IBIA’s view, their business model does notjustify exemption from measures designed to protectpublic safety and security of the people they serve.Fingerprint Matching is ExtremelyAccurate and ReliableFingerprint background checks through local, state, andfederal criminal files are the gold standard for public andprivate employers who wish to determine if a prospectiveemployee or contractor has had disqualifying criminalactivity. The accuracy and reliability of these checks hasbeen tested and proven over decades of use around theworld to assure public safety and security. The prospectiveemployer is provided with critical information on which tobase an informed decision to hire.Fingerprint checks are used for identification atinternational borders, in law enforcement applications, andin government and civil background check proceduresbecause they offer a simple and the most accurate methodto determine if a subject has a criminal history. INTERPOL,the FBI, and law enforcement authorities around the worlduse fingerprint submissions for both civil backgroundcheck and criminal investigations.Ten-print fingerprint searches of the FBI’s Next GenerationIdentification (NGI) database are very accurate. The FBIreports automated true match accuracy rates of over99.6%.10 Over a decade ago, the Department of HomelandSecurity’s IDENT database was already reportingautomated match rate accuracy of 99.5% against adatabase of millions of records.11On its website, Uber asserts that “a person’s skin maysmooth with age or use, or the prints may get smudgedduring the process.12 This allows people with criminalrecords to pass a background check because their printshave changed from when they were arrested.” Uber alsoclaims that many low quality prints must be manuallyreviewed by examiners, whose record of matching is ofdubious value.Fingerprint collection technologies and matchingalgorithms are highly accurate and reliable, and continueto improve. The National Institute of Standards andTechnology (NIST) and international standards bodieshave designed proven frameworks for fingerprint accuracymatching that provide scientific rigor to the field. Thewidespread deployment of fingerprinting systemsaround the world has brought the technology to a pointwhere even damaged or hard to read fingerprints can beaccurately matched without any human intervention.The advent of automated identification electroniccollection and matching has dramatically improved thesophistication of fingerprinting systems. The typicalfingerprint collection process is now entirely electronic,3

leaving no ink or paper to smudge or distort thefingerprint image. The FBI and state law enforcementagencies have converted their old fingerprint cards intodigital records.Electronic fingerprint collection devices also alert theoperator to a poor quality capture immediately, therebyallowing the operator to re-capture high-quality printswhile the applicant is still present to help ensure matchingaccuracy.13 Higher resolution collection devices nowprovide a greater level of detail; helping to match againsteven the most degraded samples.It is true that poor quality submitted fingerprint imagesare occasionally rejected by the receiving law enforcementagency for technical reasons. If a person cannot providefingerprint images of sufficient quality due to amputation,burns, or other medical reasons, then other more laborintensive protocols are applied to complete the backgroundchecks. However, such instances would be rare.Name-based Background Checks areInherently VulnerableBackground check systems are only as good as theinformation against which they search. Errors or deliberatemisrepresentations in biographic data (such as deliberatemisspelling, switched first and last names or unknowndates of birth) are commonplace.The critical advantage of fingerprint background checksis that they can foil an attempt to use false or misleadingbiographic information to avoid detection. Fingerprintbased searches are based not on what applicants claimabout their identity, but what their identity actually is.These searches provide all names (aliases) that have beenassociated with the fingerprints that were submitted forthe search.Criminal actors utilize false identities to blend into societyand to commit crimes of opportunity and, by searchingbiographic records only, Uber risks exposure to fraudulentapplications designed to thwart the effectiveness offingerprint database checks. Biographic searches alsocontain data entry errors that can eliminate qualified jobseekers from consideration.14Misspellings of names in a biographic-only system can be aserious problem, either because of entry errors or intendedsubterfuge. These errors have real consequences. Bostonbomber Tamerlan Tsarnaev’s record of transit to Russiawas obscured by a misspelling of his name – a fact thatultimately affected the associated investigation by the FBI.4On its website, Uber says that all applicants undergo anational, state, and local-level criminal history check thatscreens a series of national, state, and local databasesincluding the US Department of Justice National SexOffender Database (which Uber’s own website says isincomplete) and the PACER database, both of which arename-based.Uber itself recognizes the vulnerability of name-basedchecks. A company spokesperson noted that “a potentialdriver may have a stolen or fraudulent identity {or} anillegally obtained but valid social security number thatcancels his or her true identity”.15Ten-print fingerprint searches of the FBI’sNext Generation Identification (NGI)database are very accurate. The FBI reportsautomated true match accuracy rates of over99.6%.The FBI, state and local law enforcement agencies cansearch their records on the basis of both biometric andbiographic information. As a result, fingerprint-basedbackground checks are the only way for employers toobtain a complete view into a prospective employee’scriminal arrest record and to ensure that applicants withcriminal arrest records cannot thwart background checksby providing false biographic information to disguise theiridentity and background.Public safety and security is the ultimate reason toperform a background check. Fingerprints are thecommon currency of criminal records and are relied onfor accuracy and reliability. To ensure the safety of theirpassengers, Uber, Lyft and other shared ride servicesshould want to undertake the most comprehensiveand rigorous background checks available and includefingerprint-based searches in its system. By failing to doso, drivers with a history of drunk driving arrests, violentcrime, sexual assault, child endangerment, fraud andidentity theft, illegal immigrants or drug offenses may bebehind the wheel.Instead, they seek to avoid compliance with law and/orbest practice until after actual harm has occurred and aneed has been identified.

Collection of Fingerprints is Simple andConvenientAs biometrically-enabled background checks becomemore prevalent, a broad spectrum of companies nowoffer fingerprint collection as part of their comprehensivebackground check services. Given the many new entrantsin this field, competition for new business is strong.Uber claims that collection of fingerprints is a barrierto entry for potential drivers, suggesting that travel toan enrollment facility for fingerprinting would dissuadeprospective new employees. Fingerprint checks as apart of a rigorous background check may be a barrierto entry for Uber applicants, but not for the reason thatUber cites. If a potential Uber driver does indeed have adisqualifying criminal arrest record or outstanding wantsand warrants, this can and should be a barrier to entry.The FBI and state governments hold regularly scheduledopen competitions in which they certify companiesto “channel” biometric information into the relevantdatabases. These certified channelers then either openbrick and mortar outlets themselves or sub-contract withother service providers to make fingerprint collectionservices widely accessible. The average response time fora civil electronic fingerprint check against FBI holdings isabout 1 ½ hours – a time that can be reduced to around 15minutes for an additional fee.16If Uber is concerned that biometric collection isinconvenient, it should partner with a certified channelerthat has the most convenient locations in Uber’s marketsof interest. There are currently seventeen certified FBIchannelers and hundreds of fingerprint collection centers,and competition between them is fierce. Given the size ofthe on-demand economy, channelers are likely to courtthis new business vigorously and optimize their systems, ifneeded, to provide the rapid results that Uber desires.These errors have real consequences. Bostonbomber Tamerlan Tsarnaev’s record of transitto Russia was obscured by a misspelling ofhis name — a fact that ultimately affected theassociated investigation by the FBI.In short, there are options that offer the convenience,speed and quality of capture that the companies desire.Since Uber and Lyft operate in large cities where thereare numerous locations for collection of fingerprints, thefingerprinting process should be convenient for applicantsand give quick results to Uber and Lyft in support of aninformed applicant suitability determination.This is truly a case where security and convenience are notmutually exclusive.Continuous Vetting or “Rap Back”Ensures that Today’s Background ChecksRemain CurrentIn 2014, the FBI introduced its Rap Back service as part ofits new Next Generation Identification (NGI) system. ForRap Back, civil applicant fingerprints submitted for the initialcriminal history records check can be retained by the FBI inits civil master file if the person is hired. Prior to retention,the FBI requires states to have legal authority for retentionof these civil fingerprints and ensure adequate notice to andconsent of the applicant. There are no additional fees to usethis service.As long as the subscription is active, all subsequent criminalarrests submitted to the FBI are compared against thatretained civil fingerprint record. If there is a match, and thecriminal activity is included on the selected list of “triggeringevents”, the FBI will immediately send a notification to thesponsoring organization along with an updated criminalidentity history summary, also referred to as a record ofarrest and prosecution or “rap” sheet. This continuouscriminal record vetting service eliminates the dependenceon employee self-reporting of their own arrests and makesit unnecessary for the employer to re-submit fingerprintsperiodically for a new criminal history records check.Uber claims that fingerprint checks fail to find disqualifyinginformation. It notes that “in 2014 at least 600 people inSan Diego, Los Angeles, and San Francisco—all cities thatrequire taxi drivers to [be fingerprinted]—who previouslydrove taxis failed our background check.”17 In these cases,Uber claims that its biographic checks uncovered criminalhistories and driving violations that allowed them todisqualify applicants for employment.It should be noted that the fingerprint-based criminalhistory check should be viewed as a key element ofa comprehensive background check that includesbiographic background searches and not the singlesource of information in determining suitability for hire.However, without knowing specifically what databases arebeing compared and the timeframes, there is no way tocomment further on the company’s claim. For example,depending on the timing of the query, Uber may be citinga subsequent criminal record that occurred after the5

initial fingerprint background check and before the Uberapplication. In short, Uber’s claim says nothing aboutrelative accuracy or reliability.providing the driver applicant with an opportunity todispute any information reported in error that should befurther reviewed with law enforcement or the court system.Background Checks Merely Provide theMeans to Inform Hiring DecisionsConclusionFingerprints are color blind and automated fingerprintbased background checks do not discriminate against anygroup. A fingerprint background check is a tool used tofind information. Once derogatory information is identifiedand connected to a person, the requestor must process andadjudicate the information result appropriately. Employerswill then assess the results of the fingerprint checks todetermine the final employment decisions.Yet Uber uses the disproportionately high number ofcriminal records among minorities as a reason not toperform background investigations using fingerprints.18As some biometric records make their way into databasesthrough mere arrests and booking of suspects ratherthan final dispositions of court cases, Uber argues thatminorities are more likely to garner a “hit” in the systemthat does not necessarily reflect a disqualifying offense.Uber also notes that some criminal records are neverexpunged, leaving derogatory information in the systemfor so long that subjects are not given the chance torehabilitate themselves.In fact, a recent study demonstrates the demographicbreakdown of traditional taxi drivers versus Uber drivers.The findings demonstrate that there are more AfricanAmerican taxi drivers than African American Uber drivers.It should be noted taxi drivers are subject to fingerprintand full criminal record checks prior to their employment,indicating that there is no inherent racial bias on the hiringresults based upon the checks.19To the extent that Uber is concerned about thecompleteness and accuracy of information in criminal andcivil fingerprint databases, Uber should establish a policyand process for appropriate review and adjudication ofany reported criminal event data, a commonly acceptedprocess practiced by government and the private sector.Adjudication staff could review an applicant’s criminalidentity history summary, or rap sheet, to determine ifderogatory information is potentially disqualifying. If aninitial determination is made that the applicant is ineligiblefor employment, Uber should consider issuing preliminarydetermination of ineligibility letters to applicants, andconduct redress actions, among other things, to ensure afair and equitable adjudication process. This would include6Uber has created a business revolution based upon theuse of technology. Traditional aspects of the taxi industryhave been replaced with technology in favor of efficiency,customer satisfaction, cost savings and accountability. Itis ironic Uber would prefer an antiquated and vulnerableprocess by relying solely on name-based backgroundchecks of its applicants.Uber and Lyft are ultimately responsible for developingtheir own hiring guidelines to fulfill the requirementsof existing law. However, public safety and securityinterests necessitate that the companies use the mostcomprehensive and relevant data set in their personneldeterminations.In the absence of a fingerprint-based criminal backgroundcheck, drivers with criminal arrest records are able toprovide false biographic information to disguise theiridentity and background, thereby exposing the public toan avoidable level of risk. From a public safety and securityperspective, the inclusion of FBI and state fingerprintbased searches as part of a comprehensive backgroundcheck process is the only way for Uber and Lyft to haveaccess to the complete criminal arrest records of theirapplicants and thereby ensure they are aware of theentirety of a prospective employee’s suitability for the job.The popularity of a new business model for ride hiringdoes not in and of itself justify exemption from statutesand regulations that exist to protect the safety andsecurity of the traveling public.The public safety question is not whether Uber should berequired to fingerprint candidates for employment. Thequestion is when and how.Uber itself recognizes the vulnerabilityof name-based checks. A companyspokesperson noted that “a potential drivermay have a stolen or fraudulent identity {or}an illegally obtained but valid social securitynumber that cancels his or her true identity”.

Endnotes1 Society for Human Resource Management, “Background Checking—The Use of Criminal Background Checks in HiringDecisions”, July 19, 2012 ex4i.dpuf2 New York Times, “Uber and Lyft end rides in Austin to protest fingerprint background checks”, May 9, 2016, nt-background-checks.html? r 03 Fox 5 News DC, May 25, 2016, “Uber driver arrested for attempting to shoot officers”; ory; ABC 7 WJLA, Washington, DC, May 25, 2016, “Police: Uber driver arrested after attempting tomurder police officers”; sted-after-attempting-to-murder-police-officers4 John Jay College of Criminal Justice, “One Standard for All: Criminal Background Checks for Taxicab, For-Hire, andTransportation Network Company Drivers”, May 2015, 015/06/background check report.pdf5 Houston Chronicle, “Uber ends service in Galveston”, February 3, 2016, e-in-Galveston-6804411.php; Texas Tribune, “With new regulations looming, Uber cuts service to CorpusChristi”, March 10, 2016, ations-looming-uber-cuts-service-to-corpuschristi; USA Today, “Austin sends Uber, Lyft decision to voters”, February 12, 2016, 830/; Miami Herald, “Uber faces fingerprint fight inMiami Dade”, February 25, 2016, ami-dade/article62532202.html;ABC 13 Houston, “Uber threatens to leave Houston in dispute over background checks”, April 28, 2016, s-threat-to-leave-houston/1311906/6 “Uber and Lyft are spending millions of dollars on a local election in Austin, Texas. Here’s why.”, Fusion, ng-election-austin-texas/, April 19, 20167 New York Times, “Uber and Lyft end rides in Austin to protest fingerprint background checks”, May 9, 2016, nt-background-checks.html? r 08 USA Today, “RideAustin offers non-profit alternative to Uber, Lyft”, 88522/9 Politicker New Jersey, “Former US AG holder says he doesn’t support fingerprinting for NJ Uber bill”, June 8, j-uber-bill/10 FBI, “Next Generation Identification”, https://www.fbi.gov/about-us/cjis/fingerprints biometrics/ngi11 Research Gate, “Matching Performance for the US-VISIT IDENT System Using Flat Fingerprints”, https://www.researchgate.net/publication/242592707 Matching Performance for the US-VISIT IDENT System Using FlatFingerprints12 Uber, “Details on Safety at Uber”, July 15, 2015, https://newsroom.uber.com/details-on-safety/13 According to IBIA’s contacts, around 3% of all submissions to FBI databases are rejected, and the vast majority of that3% consists of poor quality prints which can be rectified through a simple resubmission of higher quality prints.14 See New York Times, “Accuracy in Criminal Background Checks”, August 9, 2012, -in-criminal-background-checks.html15 Los Angeles Times, February 22, 2016, “Kalamazoo shooting: Here’s how Uber does its background checks”, n-uber-background-check-20160222-story.html16 See FBI NGI Monthly Fact Sheet at www.fbi.gov/about-us/cjis/fingerprints biometrics/ngi17 Uber, “Details on Safety at Uber”, July 15, 2015, https://newsroom.uber.com/details-on-safety/18 Uber, “Details on Safety at Uber”, July 15, 2015, https://newsroom.uber.com/details-on-safety/19 https://www.google.com/search?q taxi driver demographics&tbm isch&tbo u&source univ&sa X&ved 0ahUKEwjzir740aLNAhUKWz4KHcHEDR8QsAQIaA&biw 1920&bih 911#imgrc UgucsGzCN4qU8M%3A7

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Uber and Lyft recently poured millions into a proposition to repeal an Austin ordinance that would require fingerprint checks for drivers from both companies.6 Notwithstanding a great deal of publicity and an aggressive campaign, the proposition was resoundingly defeated by voters.7 As a result, Uber and Lyft have also stopped operating in Austin.