Creeping Tyranny of Background Check Requirements
by John Poland
What if a law was proposed that required every citizen of the United States to register with the local police department and provide fingerprints and photo identification? We could imagine such a scenario, especially one pushed under the guise of “public safety”. How would people react to such a law? How would the people of the redoubt states view such a law? I suggest that such a law would be harshly criticized as an infringement on personal privacy. I suspect that such a law would be met with an overwhelming volley of phone calls to representatives demanding opposition to it, especially in the redoubt states.
Unfortunately, this “law” is already in effect, in a much more surreptitious form. It is not here as a universal law, but rather as a legal requirement of employment. Every state has enacted rules through their administrative departments that require FBI fingerprint background checks for dozens of professions. These have been sold as necessary for public safety and for the eternal “war on drugs”. Each year, more professions are added to the list that require it. All of the search results are entered into state and federal databases.
Where These Laws Originated
There are three main categories of employment that have background check requirements: jobs involving handling of controlled substances, professions involving working with vulnerable people, and professions considered high-risk / high trust.
The main source of background check requirements for professions involving working with vulnerable members of the population was language in the Patient Protection and Affordable Care Act.
Most states have chosen to participate in the national program, including Oregon and Idaho. Other states such as Washington and Wyoming meet some of the requirements of the national program, including fingerprint-based background checks, but were not part of the federal grant program at the time of the information referenced here.
Notably, a number of states do not participate in the funds matching program, including Massachusetts, Pennsylvania, Texas, Montana and Vermont. These states do not have specific fingerprint-based background check requirements for long-term-care providers. Texas, however, does require everyone to get a fingerprint-based background check to obtain a drivers license and for most professions anyway. Other states do not.
For example, Kentucky was a participant in the program but changed their law to make it voluntary for eligible entities. In other words, the states did not need to do this, but chose to as an easy way to meet the National Program requirements.
The other major source of fingerprint based background checks came from requirements for those handling controlled substances. Though there is no actual law requiring background checks, states typically justify fingerprint background checks due to a federal requirement to disqualify applicants if they have felony convictions for controlled substances.
The requirements for screening those with access to controlled substances were enacted at the state level and eventually included a wide range of professions.
Most states, including Oregon, Washington, Idaho, Montana and Wyoming, require that professions involving handling controlled substances screen employees with a fingerprint background check. These professions include doctors, nurses, pharmacists, veterinarians, veterinary technicians and various others such as first responders approved to administer drugs.
The final category of professions subject to fingerprint background checks have typically required licensing at the state level for many years. These are the categories that people generally think of as being high-risk, high-trust positions such as policemen and private investigators.
Strangely, many other professions fall into this category. Washington State, for example, requires fingerprint background checks for real estate brokers. These laws vary greatly by state.
So, in other words, the states did this to themselves (and to us).
State legislators tend to be ill-informed on privacy issues and tend to take the easy way out by turning the details over to the administrative departments. For example, the ACA does not create a law requiring everyone in the country to be fingerprint background checked. It only requires them for those states participating in the national ACA program. These checks do meet the ACA requirements, so the states passed laws requiring them and the matching funds came rolling in.
Apparently it seemed natural to the government to then apply the same standard to everything else. The bureaucrats write a mountain of new laws to “protect the vulnerable”, while also stomping on everyone’s privacy. The legislators sign off and everyone gets to feel good about having “done something”. Had the legislators and bureaucrats really been looking to protect the people they would have found a way to protect our privacy rights as well.
Who is Affected
The professions affected by these laws vary by state. Included is a partial list of professions that are subject to national fingerprint background checks. Note that this list is representative of the situation rather than a guide for services or career choices. Some states require fingerprint background checks for most of these while some require them only for out-of-state licensing. Do your own research if you are potentially affected.
So what is the big deal?
These laws all seem reasonable at first glance. Who wants to subject the vulnerable to abuse? Who wants to put criminals in charge of controlled substances? Some laws seem a little overboard, however. Is it really necessary to fingerprint all real estate brokers?
Then again, if we are going to legislate security, why not go further? Maybe we should include other professions as well, in order to better protect the public. Perhaps we should include travel agents. After all, travel agents know when you are going to be away from your residence. An unscrupulous travel agent could use that information to set up a robbery of your home. What about investment advisers? They have access to your financial information. They could certainly use that to set up all manner of nefarious activities, from account theft to selecting targets for kidnapping or extortion.
Perhaps it would be best to just insist on full background checks on all employees in all professions. After all, everyone involved with any kind of transaction or business dealing has the potential to use information to make criminal activity easier. Everyone who works for the federal government has a full fingerprint background check, as well as all military service members. It isn’t fair that they have so much scrutiny while criminals in the public are free to operate without these checks. Let’s just get as much information as possible on everyone. Fingerprints, DNA, facial scans, retinal scans, real-time monitoring, full spectrum surveillance of the entire population. We need this for safety, right? After all, it is the right thing to do to protect the people. These are the arguments we hear from Progressives for every restriction of personal privacy and freedom. Are they right? Are these demands reasonable?
There are many reasons to question the need for such invasions of privacy in the name of public safety. Background checks are not perfect. Errors are made, allowing criminals to operate and ruining the careers of the innocent. Background checks without fingerprinting are part of the requirements for many professions. Almost all job applications have sections on prior convictions. These records can be checked without creating a new fingerprint record. These are not foolproof but at least a person can argue the result with a potential employer without creating a detailed FBI dossier. The Fourth Amendment was added to the Constitution precisely to prevent this kind of invasive data collection.
I somehow doubt that Patrick Henry, George Washington and Samuel Adams would have thought it necessary to create a complete government database of all professionals with full biometric data “for the good of the people.” I suspect they would have considered such a thing as beyond absurd. Unfortunately this “progressive” implementation of surveillance has become the natural trend in America of today. Unless one has thought this through in terms of the legitimate purpose of government, one is bound to accept these proposals and be walked down the path of absolute tyranny. That path is what our fellow Americans are choosing for all of us, day by day, and unless we find a way to turn from it, then Tyranny is what we will have.
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