Findings

Congress finds the following: (1)One of the legacies of the horrific attacks of September 11, 2001, is the need for enhanced security of the United States. Meeting this need has imposed serious stresses on government agencies at all levels and entities whose primary task is the protection of the key assets of the United States and the life, health, and property of its populace. (2)President Bush stated, in a February 2003 report titled, The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, that there is an increased need to assess the Nation’s vulnerabilities and to provide additional security for its key assets. Providing such security will require increased cooperation between the Federal Government and the private sector. (3)Such Report recognized that terrorists, in the pursuit of their long-term, strategic objectives, will likely continue to attack critical infrastructures and key assets of the United States, the vast majority of which are owned and operated by the private sector. (4)Because of enhanced security needs, the use of private security companies in guarding the key assets of the United States and the life, health, and property of its populace has increased significantly since September 11, 2001, and will continue to do so. (5)Because of enhanced security needs, businesses have increased their security efforts and the number of internal employees dedicated to securing their facilities. (6)As reliance on private security companies to guard the key assets of the United States and to protect the life, health, and property of its populace continues to grow, the hiring and placement decisions of such companies (which employ more than 500,000 private security officers nationwide) have become critical. Such decisions determine who will protect the United States and have access to its key assets. Similarly, businesses providing their own internal security services have experienced a heightened need to improve their internal security measures and to obtain more information about the individuals who provide their internal security. It has, therefore, become imperative that companies employing or hiring security personnel have access to a criminal background checking system that is efficient, inclusive, nationwide in scope, dependable, and technologically advanced, in order to minimize the occurrence of dangerous and disastrous placement and hiring decisions. (7)Companies cannot properly and effectively evaluate their prospective and current internal security employees without access to the criminal history records available through the National Crime Information Center (NCIC). Access to the NCIC for the purpose of reviewing the background of current and prospective employees is currently enjoyed by the banking industry, the nuclear power industry, public housing authorities, and others, and should be made available to private security companies and to businesses providing their own security so that such companies and businesses can safely and effectively partner with Federal, State, and local governments in the effort to protect the United States. (8)Given its critical role in the security of the United States, the Department of Homeland Security, working in conjunction with the Department of Justice, is best suited to act as the clearinghouse for obtaining and disseminating NCIC criminal history records for the purposes set forth in this section.

Improved criminal history records search for purposes of employment of covered private security officers

Section 6402 of the Intelligence Reform and Terrorism Prevention Act of 2004 (118 Stat. 3755, 28 U.S.C. 534 note) is amended by striking subsection (c) and all that follows through the end and inserting the following new subsections:

(c)

Requirement To provide NCIC information upon request

(1)

In general

The Secretary shall, upon receipt of a request by a covered employer with respect to a covered employee, provide for an NCIC criminal history records check with respect to the covered employee and provide the results of the check to the covered employer, in accordance with this section. (2)

Fingerprints

A request under paragraph (1) shall include the fingerprints of the covered employee, which shall be submitted electronically to the Secretary. The Secretary shall transmit those fingerprints to the Attorney General. To assist the Secretary in complying with paragraph (1), the Attorney General shall, notwithstanding any other provision of law, provide for— (A)an NCIC criminal history records check to be carried out with respect to that covered employee; and (B)the results of that check to be transmitted to the Secretary. (3)

Fee

The Secretary may, by regulation, establish and collect a reasonable fee for conducting a criminal history records check under paragraph (1). (d)

Use of NCIC information by covered employers

(1)

Prohibition

(A)

In general

A covered employer may not employ a covered employee to provide a security service described in subparagraph (B), unless— (i)the covered employer first obtains the results of an NCIC criminal history records check with respect to that covered employee; and (ii)neither the results of that check, nor any other information made available to the covered employer, indicate that the covered employee has any unpardoned conviction under any Federal or State law of any felony or any one or more of the following offenses: (I)Illegally using, carrying, or possessing any firearm or other dangerous weapon. (II)Making or possessing an instrument, the primary use of which would be to facilitate burglary, theft, or a similar crime. (III)Buying or receiving stolen property. (IV)Unlawful entry of a building. (V)Aiding escape from prison. (VI)Unlawfully possessing or distributing any illegal narcotic drug. (VII)Any act involving theft, including theft by deception. (VIII)Recklessly endangering another person. (IX)Making any threat of terror. (X)Any crime of violence against another individual, including assault or battery, or any crime of violence against the property of an individual. (XI)Attempting or conspiring to commit any of the offenses described in subclauses (I) through (X). (XII)Any other offense relevant to the ability of the covered employee to provide reliable security services, as specified by the Secretary by regulation. (B)

Security service described

For purposes of this section, a security service is— (i)guarding, protecting, or securing any asset or personnel of the covered employer or any asset or personnel of any customer of such employer; or (ii)directly or indirectly supervising the activities of any other employee of such employer who guards, protects, or secures any such asset or personnel. (2)

Delayed applicability for current employees

In the case of a covered employee who, as of the effective date described in section 4 of the Private Security Officer Employment Enhancement Act of 2006, is employed by a covered employer to provide a security service, the prohibition under paragraph (1) shall not apply to such employer with respect to such employee until— (A)the given date that is six months after such effective date; or (B)a later date specified by the Secretary, in the case in which the Secretary certifies that the results of the records check could not be obtained by the given date described in subparagraph (A) despite the exercise of reasonable diligence on the part of both the employee and the employer. (3)

No liability for good faith determinations

No covered employer shall be liable for any determination made by such employer in good faith that an offense identified from a criminal history records check conducted under subsection (c) for such employer on a covered employee is within the scope of offenses described in paragraph (1)(A)(ii) for purposes of such employer making an employment decision with respect to such employee. (4)

Rule of construction

Nothing in paragraph (1) shall be construed as preventing a covered employer from making an employment decision, with respect to a covered employee, based on any lawful reason not described in such subsection, including the reason that the results of a criminal history records check conducted under subsection (c)(1) (or any other information made available to the employer) on such employee indicate that the employment of the employee would violate any applicable State law. (5)

Non-application of Fair Credit Reporting Act

The provisions of the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) shall not apply to an NCIC criminal history records check conducted under subsection (c). (e)

Employee rights

(1)

Written consent

A covered employer may not make a request under subsection (c)(1) with respect to a covered employee, or obtain the fingerprints of a covered employee under subsection (c)(2), without the written consent of that employee. (2)

Frequency of requests

A covered employer that makes a request under subsection (c)(1) with respect to a covered employee and thereafter employs that employee for a continuous period may not make another such request with respect to such employee unless— (A)such request is made at least 12 months after the previous request; or (B)good cause (including for purposes of a promotion of the covered employee) exists. (3)

Accuracy and completeness

The Secretary shall ensure that each covered employee subject to a request for an NCIC criminal history records check under subsection (c)(1) will receive the results of the check and will have the opportunity to provide to the head of the National Crime Information Center of the Federal Bureau of Investigation information concerning the accuracy or completeness of such results. The covered employee involved must provide such information within 30 days after receipt of such results. (f)

Records management

(1)

In general

A covered employer receiving any results from a criminal history records check carried out under subsection (c)(1), with respect to a covered employee, shall ensure each of the following: (A)Such results are maintained confidentially. (B)Such results are not misused or disseminated to any person not involved in the employment decision with respect to the covered employee. (C)Subject to paragraph (2), such results are destroyed within one year after the latter of the following dates, with respect to such results: (i)The first of the following dates: (I)The date of the decision whether to employ or continue to employ the covered employee. (II)The date that is one year after the date on which the covered employer received the results. (ii)The date that is one year after the final disposition of a claim or proceeding relating to the employment of the covered employee. (2)

No destruction of results if related claim pending

In no case shall the results from a criminal history records check carried out under subsection (c)(1) be destroyed pursuant to paragraph (1)(C) while a claim or proceeding described in clause (ii) of such paragraph is pending. (g)

Use of information by Department of Homeland Security

In carrying out this section, the Secretary shall establish procedures to ensure that the Department of Homeland Security uses the results of criminal history records checks carried out under subsection (c)(1) in a manner that— (1)limits the dissemination of such results outside the Department only to the covered employer; (2)ensures that such results are used only for the purpose of determining the suitability of a covered employee for employment in the private security field; and (3)protects covered employees from any use of such results that is in violation of the provisions of this section. (h)

Regulations

The Secretary shall prescribe regulations to carry out this section. (i)

Criminal penalties

Any person who knowingly and intentionally uses any information obtained pursuant to this section for a purpose other than the purpose of determining the suitability of a covered employee for employment in the private security field shall be imprisoned not more than two years or fined under title 18, United States Code, or both. (j)

Definitions

For purposes of this section: (1)

Covered employee

The term covered employee means any individual, other than an active law enforcement officer for any governmental unit, who is— (A)employed by, or seeking employment with, a nongovernmental entity that provides security services; or (B)employed as an internal security employee by, or seeking employment as an internal security employee with, a nongovernmental entity that has more than 50 employees, of which three or more are internal security employees. (2)

Covered employer

The term covered employer means— (A)any nongovernmental entity that— (i)provides security services; (ii)for each jurisdiction in which it provides such services, is licensed by such jurisdiction to provide such services, to the extent such jurisdiction permits or requires it to be so licensed; and (iii)provides such services— (I)in interstate or foreign commerce; (II)at any site where there is located any element of the Federal Government; or (III)for any person engaged in interstate or foreign commerce; or (B)any nongovernmental entity that— (i)has more than 50 employees, of which three or more are internal security employees; (ii)for each jurisdiction in which it provides internal security services with respect to itself, is licensed by such jurisdiction to provide such services, to the extent such jurisdiction permits or requires it to be so licensed; and (iii)is either engaged in interstate or foreign commerce or provides any product or service to any element of the Federal Government. (3)

Internal security employee

The term internal security employee means an employee whose primary responsibility is to provide internal security with respect to the entity employing such employee. (4)

NCIC criminal history records check

The term NCIC criminal history records check means a criminal history records check conducted through the databases of the National Crime Information Center of the Federal Bureau of Investigation. (5)

Secretary

The term Secretary means the Secretary of Homeland Security. (6)

State

The term State includes the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.