[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
     H.R. 2703, THE PRIVATE SECURITY OFFICER EMPLOYMENT ACT OF 2007 

=======================================================================



                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 26, 2008

                               __________

                           Serial No. 110-79

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html



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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            [Vacancy]
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California            John Kline, Minnesota,
Dale E. Kildee, Michigan               Ranking Minority Member
Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon, 
John F. Tierney, Massachusetts           California
David Wu, Oregon                     Kenny Marchant, Texas
Rush D. Holt, New Jersey             Charles W. Boustany, Jr., 
Linda T. Sanchez, California             Louisiana
Joe Sestak, Pennsylvania             David Davis, Tennessee
David Loebsack, Iowa                 Peter Hoekstra, Michigan
Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York           Tom Price, Georgia
Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                     Timothy Walberg, Michigan


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 26, 2008................................     1
Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
        Prepared statement of....................................     3
        Additional submissions:
            Statement of the National Employment Law Project.....    38
            Statement of the Service Employees International 
              Union..............................................    41
    Kline, Hon. John, Senior Republican Member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Campbell, Frank A.S., Senior Counsel, Office of Legal Policy, 
      U.S. Department of Justice.................................     5
        Prepared statement of....................................     7
    Clarke, Floyd I., member of the board of managers, Allied 
      Security Holdings..........................................    32
        Prepared statement of....................................    34
    de Bernardo, Mark, Jackson Lewis LLP.........................    25
        Prepared statement of....................................    27
    Kennedy, Weldon, vice chairman, Guardsmark, LLC..............    21
        Prepared statement of....................................    23
        Follow-up comments.......................................    49
    Ricci, Joseph, CAE, executive director, National Association 
      of Security Companies (NASCO)..............................    16
        Prepared statement of....................................    17
    Uzzell, Donna M., Director, Criminal Justice Information 
      Services, Florida Department of Law Enforcement; Chairman, 
      National Compact on Crime Prevention and Privacy Council...    27
        Prepared statement of....................................    29


     H.R. 2703, THE PRIVATE SECURITY OFFICER EMPLOYMENT ACT OF 2007

                              ----------                              


                       Tuesday, February 26, 2008

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:32 a.m., in 
room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the subcommittee] presiding.
    Present: Representatives Andrews, Wu, Hare, Kline, McKeon, 
Davis of Tennessee, and Foxx.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Carlos Fenwick, Policy Advisor, 
Subcommittee on Health, Employment, Labor and Pensions; Brian 
Kennedy, General Counsel; Sara Lonardo, Junior Legislative 
Associate, Labor; Robert Borden, Minority General Counsel; 
Cameron Coursen, Minority Assistant Communications Director; Ed 
Gilroy, Minority Director of Workforce Policy; Rob Gregg, 
Minority Legislative Assistant; Richard Hoar, Minority 
Professional Staff Member; Alexa Marrero, Minority 
Communications Director; Jim Paretti, Minority Workforce Policy 
Counsel; and Linda Stevens, Minority Chief Clerk/Assistant to 
the General Counsel.
    Chairman Andrews [presiding]. Committee will come to order. 
Good morning.
    Colleagues and ladies and gentlemen, welcome to the 
subcommittee hearing this morning. We are dealing with an 
interesting issue and we have two panels of witnesses that we 
will proceed to expeditiously.
    As we meet this morning, a nuclear power plant or a 
hazardous waste site or an oil refinery or a chemical plant is 
most probably being guarded by a person who is an employee of a 
private company. And the men and women who serve in that 
capacity broadly, almost uniformly, I would say, do a very, 
very good job. They are competent, they are qualified, they are 
honest, they are hardworking. They are doing a very good job 
defending our country.
    But we don't know if all of them fit that description 
because there are holes in the system that does background 
checks on people that have such a critical responsibility.
    The Department of Homeland Security has identified that 85 
percent of the critical infrastructure of our country is owned 
by private sector firms who almost always use private sector 
security firms to provide their security.
    So how would we know if the person gathering--if the person 
who was guarding that hazardous waste site, or that person who 
is guarding that oil refiner is competent or not? How would we 
know whether he or she is perhaps even a terrorist? How would 
we know?
    Well, the answer is we might know, but we might not. If 
this facility is located in a state that has elected under a 
2004 law to get access to FBI database background checks, and 
if the employer in that state has elected to gain access to the 
information, and if that employer has chosen to use that 
information to bar or otherwise limit employment for a person 
that doesn't pass the background check--if all three of those 
qualifications are met, then we can be sure, if the information 
is accurate, we can be sure that the person working, guarding 
that hazardous waste plant or chemical plant, is not a 
terrorist and ought to be there.
    There are too many ifs in that equation, as far as I am 
concerned. I think that in order to protect the public, we need 
to know certainly that the people to whom we are entrusting 
this important responsibility are qualified, competent and 
safe, as the huge majority of those in that field are already 
doing.
    So how do you reach the point where we have that 100 degree 
certainty, or as close as we can get to 100 percent? There are 
many issues that are raised by the legislation in front of us. 
The purpose of this hearing is to begin the process of 
evaluating those issues and improving the legislation that is 
in front of us.
    Here are some questions that come to mind:
    Is it necessary to have a requirement that states either 
have background check standards that meet a federal standard or 
give way to a federal background check process? Is it necessary 
or not? We all have one witness, a very qualified witness, who 
will testify that we should wait for states to catch up. I 
think we all have other witnesses who will testify to the 
contrary.
    Next question: How can we be sure that the information that 
is being conveyed is accurate? That is a very important 
question. We certainly do not want a situation where someone is 
denied a job, or a promotion, or some other employment 
opportunity because they are inaccurately identified as someone 
who is a problem.
    Another important question about privacy. Once an employer 
has access to information about someone's background, how can 
we be sure the employer will only use that information in a 
legitimate and appropriate way and not in a way that will 
unfairly or unduly harm that employee? A very important 
question.
    Then, finally, there is a question of whether or not 
employers who have access to the background check information 
should be compelled to use it, or simply given the discretion 
as to whether or not to use it. And there are two views on that 
subject as well.
    I am pretty confident that there is universal agreement on 
the proposition that we want the best system in place we can to 
ensure that private employees who are responsible for guarding 
the critical infrastructure of this country are worthy of that 
responsibility. I don't think there would be much disagreement 
about that at all, if any disagreement.
    I am sure there will be disagreement on the panels today 
about the best way to accomplish that objective. I have a set 
of ideas, but they are a set of ideas that are subject to 
criticism and evaluation to make the underlying bill better.
    Again, the goal here is that we reach a point where we can 
say with a high degree of confidence to our constituents that 
the person who is guarding that radioactive waste dump, who is 
an employee of a private security firm, is safe and qualified 
and going to do his or her job, so that someone is not going to 
steal the contents of that waste dump and make a dirty bomb 
that would put the community at risk.
    This is a very important issue. It is one that the Congress 
has acted on in 2004, but I think we need to reconsider and 
review in this context, and I am very pleased that we have some 
very distinguished ladies and gentlemen who are going to help 
us sift through this issue here today.
    At this point, I will turn to my good friend, the ranking 
member from Minnesota, for his opening comments, and we all 
then proceed to our first panel, which is Mr. Campbell.
    Mr. Kline?

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    Good morning and welcome to today's HELP Subcommittee hearing on HR 
2703, the Private Security Officer Employment Authorization Act 
(PSOEAA) of 2007.
    In 2004, President Bush signed into law the Private Security 
Officer Employment Authorization Act (PSOEAA). PSOEAA authorizes the 
security industry to request access to criminal history information for 
consenting prospective employees from the state. Like the banking, 
nursing and child care industries, it is essential for private security 
officer employers to have access to this information in order to ensure 
that applicants being considered for employment are qualified for the 
position.
    Four years later, many states have yet to prioritize implementation 
of a timely process for private security employers to obtain background 
information. These implementation issues combined with the failure of 
several states to even establish a background check process has left us 
vulnerable.
    To address this flaw in the protection of our homeland, I have 
introduced HR 2703, ``The Private Security Officers Act of 2007.'' HR 
2703 ensures that private security employers protecting our critical 
infrastructure conduct criminal background checks on all potential 
employees.
    Specifically, HR 2703: (1) prohibits private security employers 
from hiring guards without obtaining certain state criminal history 
information; (2) requires a process to allow private security guard 
employees or applicants to challenge the accuracy or completeness of 
their criminal history records; (3) specifies the crimes for which 
states must provide conviction information to such employers; (4) 
imposes confidentiality and recordkeeping requirements on such 
employers; and (5) protects such employers from liability for good 
faith employment determinations based upon available criminal history 
information.
    Since 85 percent of our critical infrastructure such as power 
plants, oil and gas refineries, chemical plants, communication 
networks, schools, and hospitals are monitored and protected by the 
private security industry, I believe it is imperative that these 
employers have access to an applicant's criminal background information 
with the proper safeguards in place to protect their information. I 
thank all the witnesses for coming before the committee today and look 
forward to hearing their testimony.
                                 ______

    Mr. Kline. Thank you, Mr. Chairman. Thanks for holding the 
hearing.
    We do indeed have two panels of terrific witnesses, and I 
am looking forward to getting into the discussion. I have a 
prepared statement, which I would like to submit for the 
record.
    Chairman Andrews. Without objection.
    [The statement of Mr. Kline follows:]

   Prepared Statement of Hon. John Kline, Senior Republican Member, 
        Subcommittee on Health, Employment, Labor, and Pensions

    Good morning, and welcome to our witnesses.
    In 2004, the Republican-led Congress adopted, with overwhelming 
bipartisan support, the ``Private Security Officer Employment 
Authorization Act of 2004.'' Contained within intelligence reform and 
anti-terrorism legislation, this law recognized a simple but important 
fact: namely, companies that employ individuals to provide security 
services should have access to information about any criminal record of 
these individuals.
    In a post-9/11 world, where the threat of terrorism can never fully 
be out of sight, it seems obvious that employers want and need to know 
whether the employees they are hiring to secure their safety and 
property have a criminal history. Unfortunately, because of the state-
based nature of so many of our criminal records, complete information 
may too often be lacking. An employer checking an employee's criminal 
history may be limited to what relevant state agencies can provide and 
the employee himself tells--or fails to tell--the employer.
    It was for that reason that Congress in 2004 adopted the Private 
Security Officer Employment Authorization Act, to provide access to 
federal criminal history information maintained by the FBI at the 
Department of Justice. Under the 2004 law, Congress affirmatively 
allowed employers to submit identifying information through state-based 
agencies for the purpose of conducting background checks against 
federal criminal records.
    Three years later, we will hear today whether and how the Private 
Security Officer Employment Authorization Act has lived up to its 
promise. In particular, I welcome the testimony of our witnesses as to 
how the bill's original intent--that federal criminal background checks 
be conducted through a state-based system--has succeeded or failed.
    Testimony today will focus on H.R. 2703, legislation introduced by 
Chairman Andrews, which would amend key provisions of the 2004 law. I 
will say that I have a number of questions about the bill's intent and 
effect, and I welcome our witnesses' commentary on these points.
    I look forward to a healthy discussion of these issues, and welcome 
today's hearing as the forum to determine whether further legislative 
action is necessary, and if so, the scope of such action. I welcome 
each of our distinguished witnesses, and yield back my time.
                                 ______
                                 
    Mr. Kline. And just make a couple of very, very quick 
comments, because, Mr. Chairman, you gave a very thorough, 
broad, deep, wide and all those sorts of things overview, and 
it would be very hard for me to disagree with any of that.
    We are really exploring to see if that 2004 law, the 
Private Security Officer Employment Authorization Act of 2004, 
is doing its job. And if not, what to do to make it better. 
Chairman Andrews has a bill, H.R. 2703, according to my notes, 
which we are clearly going to be talking about today to see if 
there are shortcomings in the 2004 law, if 2703 meets those 
shortcomings, fills those gaps and does it in a way that is 
acceptable to us.
    There are certainly points to be argued on each side. This 
is one of those times, Mr. Chairman, which I am coming into 
this with a completely open mind. We want to dig to the bottom 
of this and find, as you said, Mr. Chairman, what is the best 
way to ensure that the private security guards, who we entrust 
for so much of our infrastructure's security and personal 
security in many cases in this country, to make sure that they 
have the proper backgrounds, that they are the right people for 
the job.
    So I am looking forward to the hearing. I would like to get 
started.
    With that, I yield back.
    Chairman Andrews. Mr. Kline, thank you very much.
    The first question that we are going to address is whether 
it is plausible to set up such a system. It is a huge 
undertaking. Is it plausible to set up a system where private 
security companies across the country can have access to the 
best and most accurate data that are maintained through the 
FBI? And the witness is going to talk to that and other issues, 
Mr. Frank Campbell.
    Mr. Campbell is senior counsel in the Office of Legal 
Policy at the U.S. Department of Justice. He was the author of 
the Attorney General's Report on Criminal History Background 
Checks, issued in June 2006. Mr. Campbell was central to the 
development of the fingerprint fast-capture device for criminal 
history checks. He also serves as the principal Department of 
Justice liaison for the National Crime Prevention and Privacy 
Compact Council, which establishes rules relating to the 
intrastate exchange of FBI criminal history for non-criminal 
justice purposes.
    Mr. Campbell graduated from Lafayette College, has overcome 
that liability, I say as a Bucknell graduate. And he has 
received his law degree from the George Washington University 
Law School.
    Mr. Campbell, welcome to the committee. We thank you for 
your testimony.

 STATEMENT OF FRANK CAMPBELL, SENIOR COUNSEL, OFFICE OF LEGAL 
              AFFAIRS, U.S. DEPARTMENT OF JUSTICE

    Mr. Campbell. Chairman Andrews, Ranking Member Kline and 
members of the subcommittee, thank you for the opportunity to 
address you on the implementation of the Private Security 
Officer Employment Authorization Act.
    The act was passed as a means of prompting states without 
private security officer licensing systems to set up programs 
that would allow private security companies to attain FBI 
criminal history background checks to screen prospective and 
current private security officers.
    Under current law, access to FBI-maintained criminal 
history information is governed by a patchwork of state and 
federal statutes. The main vehicle for providing such access 
has been state statutes approved by the attorney general under 
Public Law 92544 that allow criminal background checks using 
FBI information in certain licensing and employment decisions.
    These checks are processed through state identification 
bureaus and in order to provide more complete information, 
include a check of state records. The results of these checks 
are supplied to public agencies that provide their own 
suitability criteria or those established under state law.
    Currently there are approximately 1,200 Public Law 92544 
state statutes. Other access has been authorized by federal 
statutes allowing particular industries to go directly to the 
FBI for a criminal history check without going through a state 
identification bureau, including, for example, discretionary 
access granted to the banking, securities and nuclear energy 
industries.
    According to the FBI, 41 states plus the District of 
Columbia and Puerto Rico have passed 92544 statutes in 
connection with licensing and employment of individuals as 
private security guards. Some of the statutes only cover 
background checks for armed security guards. Many of the 
statutes permit but do not mandate such checks.
    The Private Security Officer Employment Authorization Act 
authorized private security companies to submit fingerprints of 
employees or applicants to a state identification bureau, have 
an FBI check done, and have the results returned to a state 
agency that would apply either existing state standards for 
employment of private security guards, or when no state 
standards exist provide notice to the employer whether the 
individual has a criminal history record for an offense 
specified in the act.
    Under the act, private security companies are permitted, 
but not required, to request these checks. The act does not 
compel an adverse or a favorable employment determination based 
on the results of the check. The act specifies that states may 
opt out of the background check system authorized by enacting a 
law or issuing an order by the governor providing that the 
state is declining to participate.
    To date, only one state, Wyoming, has notified the FBI that 
it has opted out of the act's background check system. While 
the act provides that states are considered to be participating 
in the system if they have not opted out, the law provides no 
enforcement mechanism to compel participation by states that 
have neither opted out, nor taken steps to make these checks 
available to the private security industry.
    The Department expects in the near future to send an 
additional communication to the states, reminding them of the 
act's expectation that they participate in the background check 
system if they have not opted out, as specified in the law.
    We understand that Chairman Andrews has introduced a bill, 
H.R. 2703, to amend the Private Security Officer Employment 
Authorization Act. The Department does not have at this point a 
position developed on that bill, so I am unable to comment on 
the bill's provisions today.
    I can note, however, that in response to a provision in the 
Intelligence Reform and Terrorism Prevention Act of 2004, the 
Department sent to Congress in June 2006 the Attorney General's 
Report on Criminal History Background Checks. The report made 
recommendations on how the law governing access to FBI criminal 
history can be changed to provide broader and more uniform 
access to such information for use by private, unregulated 
employers.
    The report recognized that the current approach of enacting 
separate authorizing statutes has resulted in inconsistent 
access across states and industries. The report also 
acknowledged that the competing interests involved in criminal 
history checks, including the interest in facilitating the 
reentry and continued employment of ex-offenders.
    To account for these interests, the report states that if 
broader access were to be allowed, it should be subject to a 
number of rules and conditions. The rules should include 
privacy protections for individuals to help ensure that the 
information is accurate, secure and only used for authorized 
purposes. The rules should require record screening in 
accordance with federal and state laws that limit access to 
criminal records for employment purposes. In addition, the 
rules also should require an employer's acknowledgment of legal 
obligations under federal and state equal employment 
opportunity laws.
    To avoid government agencies acting as suitability 
clearinghouses for private employers, the report recommends 
authorizing the determination of records to the employer or to 
a consumer reporting agency acting on the employer's behalf. 
The report also suggests that Congress consider providing 
employers guidance on suitability criteria to be used in 
criminal record screening and offering opportunities to 
individuals to seek a waiter from a disqualification.
    To take advantage of the more complete records, the access 
should be through states that agree to participate and that 
meet minimum standards for processing these checks. The 
attorney general would establish a means of doing the checks in 
states that do not opt into the program.
    Finally, the report emphasized that the attorney general 
must be able to prioritize private sector access to enable the 
scaling of the system to meet the demand in a way that does not 
interfere with the use of the system for criminal justice and 
national security purposes.
    Thank you for the opportunity to appear before the 
subcommittee today. I would be happy to answer your questions.
    [The statement of Mr. Campbell follows:]

 Prepared Statement of Frank A.S. Campbell, Senior Counsel, Office of 
                Legal Policy, U.S. Department of Justice

    Chairman Andrews, Ranking Member Kline, and Members of the 
Subcommittee: My name is Frank Campbell and I serve as Senior Counsel 
in the Office of Legal Policy in the United States Department of 
Justice. I appreciate the opportunity to address you on the issues 
relating to the implementation of the Private Security Officer 
Employment Authorization Act (PSOEAA). The law was enacted as section 
6402 of the Intelligence Reform and Terrorism Prevention Act of 2004 
(IRTPA) and provided authority for states to perform fingerprint-based 
checks of state and national criminal history records to screen 
prospective and current private security officers.
Existing Authorities for Access to FBI Criminal History Background 
        Checks
    Under current law, access to Federal Bureau of Investigation (FBI) 
maintained criminal history information is governed by a patchwork of 
state and federal statutes. The main vehicle for gaining access for 
non-criminal justice purposes has been state statutes that take 
advantage of the provisions of Public Law (Pub. L.) 92-544 (enacted in 
1972), which allow sharing of FBI-maintained criminal history records 
in certain licensing and employment decisions, subject to the approval 
of the Attorney General. These checks are processed through state 
identification bureaus and, in order to provide more complete 
information, include a check of state records. These statutes generally 
require background checks in certain areas that the state has sought to 
regulate, such as persons employed as civil servants, day care, school, 
or nursing home workers, taxi drivers, private security guards, or 
members of regulated professions. The results of these checks are 
supplied to public agencies that apply their own suitability criteria 
or those established under state law. There currently are approximately 
1,200 state statutes that are approved by the Attorney General under 
Pub. L. 92-544. The National Child Protection Act/Volunteers for 
Children Act (NCPA/VCA) allows state governmental agencies, without 
requiring a state statute, to conduct background checks and suitability 
reviews of employees or volunteers of entities providing services to 
children, elderly, and disabled persons. In addition, as noted below, 
the PSOEAA allows states to do FBI background checks on private 
security officers without passing a state statute under Pub. L. 92-544.
    Other access has been authorized by federal statutes allowing 
particular industries or organizations to go directly to the FBI for an 
employment, licensing, or volunteer check, without first going through 
a state repository and also checking state records. These laws, some of 
which were passed after the terrorist attacks on September 11, 2001, 
seek to promote public safety and national security by either 
authorizing access to a check by certain industries or affirmatively 
regulating an industry or activity by requiring background checks and 
risk assessments by government agencies. They include authority for 
discretionary access by the banking, nursing home, securities, and 
nuclear energy industries, as well as required security screenings by 
federal agencies of airport workers, HAZMAT truck drivers and other 
transportation workers, persons seeking access to nuclear facilities 
and port facilities, and aliens visiting the United States.
Pub. L. 92-544 State Statues Relating to the Private Security Industry
    According to the FBI, currently 41 states, plus the District of 
Columbia and Puerto Rico, have passed 92-544 statutes authorizing FBI 
criminal history checks in connection with licensing or employment of 
individuals as private security guards, watchman, or private 
investigators or detectives or for permits to carry or possess a 
firearm in connection with such activities. Some of the statutes only 
cover background checks or licensing for armed security guards. Many of 
the statutes permit, but do not mandate, such checks.
The Provisions of the PSOEAA
    The PSOEAA was passed as a means of encouraging and prompting 
states without private security officer licensing systems to set up a 
program that would allow private security companies to obtain FBI 
background checks on prospective and current private security officers. 
The PSOEAA allowed authorized employers of private security officers to 
submit fingerprints to a state identification bureau for a state and 
national criminal history check. State identification bureaus serve as 
the criminal justice information record repositories in each state. 
Upon receiving a background check request under the PSOEAA, a state 
identification bureau is authorized to submit the fingerprints to the 
Attorney General for a check of the FBI's national criminal history 
record information databases, with the results of the FBI check to be 
returned to the state identification bureau.
    Upon receipt of the results of the FBI check, a state that has not 
opted out of the background check system authorized by the Act is 
required to provide a qualified employer notice as to (1) whether the 
applicant fails existing state standards (such as licensing 
requirements) relating to criminal history background for qualification 
to be a private security officer, or (2) if the state has no such 
standards, whether the applicant has been (a) convicted of a felony, 
(b) convicted within the last 10 years of an offense involving 
dishonesty or false statement or an offense involving the use or 
attempted use of physical force against another person, or (c) charged 
with a felony with no resolution within the preceding 365 days.
    The checks under the Act are permissive, not mandatory, for private 
security companies. An employer may forego requesting a check or may 
provide interim employment while a check is pending. The Act does not 
compel an adverse or favorable employment determination based upon the 
results of the check. The Act specifies that states may decline to 
participate in the background check system authorized by enacting a law 
or issuing an order by the Governor (consistent with state law) 
providing that the state is declining to participate. States that have 
not opted-out under this subsection are considered to be participating 
in the background check system established under the Act.
    To date, only one state, Wyoming, has notified the FBI that it has 
opted out of the PSOEAA background check system. While the PSOEAA 
provides that states are considered to be participating in the Act's 
background check system if they have not opted out through state 
legislation or an executive order, the Act provides no enforcement 
mechanism to compel participation by states that have neither opted out 
nor taken steps to make these checks available to the private security 
industry. Nor did the law provide carrot-and-stick incentives for state 
participation, such as federal funding or federal grant penalties. The 
Department, however, expects in the near future to send an additional 
communication to the states on their obligations to participate in the 
background check system established under the PSOEAA if they have not 
opted-out under the Act. We will also make the states aware of the 
option under the Compact Council's outsourcing rule\1\ to use 
contractors or channeling agents to implement the suitability review 
requirements under the Act. The PSOEAA, however, does not provide the 
Department with authority beyond such exhortation to obtain the 
cooperation of the states in performing these background checks.
---------------------------------------------------------------------------
    \1\ The National Crime Prevention and Privacy Compact Council, 
whose members are appointed by the Attorney General from state and 
federal agencies, promulgates rules and procedures governing the 
exchange and use of criminal history records in the FBI-maintained 
Interstate Identification Index for non-criminal justice purposes. The 
Department's regulations under the PSOEAA encouraged States to consider 
using channeling agents to transmit fingerprints to the FBI and the 
results of the criminal history checks to the States. Channeling agents 
are generally private entities that contract with authorized recipients 
of criminal history information to perform routine non-criminal justice 
administrative functions relating to the processing of criminal history 
information. The Compact Council issued an outsourcing rule and 
standard in December 2005 governing the non-criminal justice use of FBI 
criminal history information. The outsourcing standard specifies that 
among the functions that can be outsourced to a contractor or channeler 
are making fitness determinations or recommendations, obtaining missing 
dispositions, and disseminating the information as authorized by 
federal law or a Pub. L. 92-544 state statute. See The National Crime 
Prevention and Privacy Compact Council, Notice, Security and Management 
Control Outsourcing Standard, 70 Fed. Reg. 74373, 74375 (Dec. 15, 
2005).
---------------------------------------------------------------------------
The Attorney General's Report on Criminal History Background Checks
    As you know, in June 2006, the Department of Justice sent to 
Congress ``The Attorney General's Report on Criminal History Background 
Checks.'' The report responded to a provision in IRPA, section 6403, 
which was a companion to the PSOEAA. We understood the reporting 
requirement to be based on congressional interest in developing a more 
uniform and rational system for accessing and using FBI criminal 
history records for employment suitability and risk assessment 
purposes. The current access scheme has created a patchwork of 
statutes, including over 1,200 state statutes under Public Law 92-544. 
This patchwork allows access to FBI criminal history information 
inconsistently across states, inconsistently across industries, and 
even inconsistently within industries. The resulting inconsistent 
access authority often affects critical infrastructure industries--for 
example, while the banking and nursing home industries have access 
authority, the chemical industry does not. This approach frequently 
leaves those without access authority with what they consider less than 
adequate information for efficient and accurate criminal history 
checks.
    The Report attempted to account for the range of interests involved 
in criminal history background check in recommending ways to provide 
broader private sector access to FBI criminal history information. We 
agree that there is a need to revisit the authorities under which 
checks of this information can be made for non-criminal justice 
purposes. Many employers can and do seek criminal history information 
from other public and commercial sources, but frequently find those 
sources to be inefficient, incomplete, or inaccurate. FBI criminal 
records would add significant value to such checks by providing a 
nationwide database of records based on the positive identification of 
fingerprints. The framework for broader access authority suggested in 
the Report seeks to avoid the need to enact separate statutes that 
create inconsistent levels and rules for access to these records. The 
basic question we considered is: How can this be done in a way that 
allows the responsible use of this information to protect public safety 
while at the same time protecting privacy and minimizing the negative 
impact criminal screening may have on reasonable efforts to help ex-
offenders reenter and stay employed in the work force?
    We answered that question by recommending that access be authorized 
for all employers, but that the access be made subject to a number of 
rules and conditions. We emphasized that private sector access to FBI 
criminal records must be prioritized by the Attorney General to enable 
the scaling of the system to meet the demand in a way that does not 
interfere with the use of the system for criminal justice and national 
security purposes. To avoid government agencies having to make 
suitability decisions for private employment, the report recommends 
authorizing dissemination of the records to the employer or a consumer 
reporting agency acting on the employer's behalf. The access would be 
under rules protecting the privacy interests of individuals in ensuring 
that the information is accurate, secure, and used only for authorized 
purposes. The rules also would require record screening to account for 
federal and state laws that limit access to criminal records for 
private employment purposes. In addition, the rules would require an 
employer's acknowledgment of legal obligations under federal and state 
equal employment opportunity laws. Consideration also should be given 
to providing employers guidance on suitability criteria to be used in 
criminal records screening. When possible, the access should be through 
states that agree to participate and that meet minimum standards for 
processing these checks, including a response time of no more than 
three business days. The Attorney General would establish a means of 
doing the checks in states that do not opt into the program.
    The report's recommendations are forward-looking. Given the 
competing law enforcement and national security demands on the FBI's 
system and resources, all-employer access under the proposed rules 
would likely take many years to implement.
    However, the report recommends that the Attorney General should be 
authorized to provide access to priority employers as FBI system 
capacity and other necessary resources allow.
    Several key points underlie the Report's recommendations:
     FBI criminal history information, while not complete, is 
one of the best sources available--it covers all 50 states and, even 
when missing final disposition information, it can provide leads to 
complete and up-to-date information. FBI statistics show an annual hit 
rate for its civil fingerprint submissions of 11.62 percent.
     To enhance data quality, state repositories should be 
checked whenever possible, so that the states' more complete 
disposition records can be part of the response to authorized users. 
According to the Bureau of Justice Statistics, approximately 70 to 80 
percent of state-held arrest records have final dispositions, as 
compared to the approximately 45 to 50 percent of FBI-maintained arrest 
records with final dispositions.
     Use of FBI criminal history information can enhance 
privacy through positive identification. Fingerprint checks reduce the 
risk of the false positives and false negatives produced by name 
checks. With FBI fingerprint checks, it is less likely that another 
person's record would be wrongly associated with an applicant. It is 
also less likely that an applicant's criminal record will be missed.
     It would be reasonable to provide a means for access to 
FBI records for criminal background checks for private security 
officers when such checks are not available through a state, if two 
conditions are met: first, that private employers satisfy requirements 
for privacy protection and fair use of the information, and second, 
that the FBI have the necessary resources and infrastructure to service 
the increased demand for civil fingerprint checks without compromising, 
delaying, or otherwise impeding important criminal justice and national 
security uses of the information system.
     If expanded access is allowed, the FBI and state 
repositories should be authorized to disseminate the records directly 
to employers. The general limitation on disseminating FBI criminal 
history information only to governmental agencies that do the 
suitability determinations has meant that many types of authorized 
checks (such as those under the PSOEAA) do not get done. State 
repositories and government agencies do not have the resources, nor, in 
most cases, do they see it as part of their mission, to perform 
suitability reviews for unregulated private employment.
     The role of the state and federal record repositories 
should be limited to that of record providers, leaving the suitability 
determinations to the users or their agents. The access process must 
avoid federal and state agencies acting as clearinghouses that make 
employment or volunteer suitability determinations for unregulated 
private employers or entities. Repositories should be allowed to 
continue to focus on their mission, with the support of user fees, of 
maintaining and updating criminal justice information and efficiently 
delivering that information to authorized users.
     Under certain conditions, the existing private sector 
infrastructure for background screening, including consumer reporting 
agencies subject to the Fair Credit Reporting Act (FCRA), should be 
allowed to access these records on behalf of enrolled employers. 
Consumer reporting agencies also could assist in finding final 
dispositions of arrest records since the FCRA requires them to ensure 
that the information they report is complete and up to date. Consumer 
reporting agencies allowed such access, however, should meet minimum 
standards for data security and training in applicable consumer 
reporting laws.
     Detailed privacy and fair information practice 
requirements should be imposed as part of expanded access authority, 
including protections similar to those in the FCRA. These requirements 
include user enrollment, use limitations, Privacy Act compliant consent 
and notice, rights of review and challenge, a newly streamlined and 
automated appeal process, limits on redissemination, information 
security procedures, compliance audits, and statutory rules on the use, 
retention, and destruction of fingerprint submissions. The Report also 
recommends giving an individual the option to review his or her record 
before applying for a job and before it is provided to a private 
employer. The latter recommendation is something that goes beyond 
current FCRA requirements and helps to address the fact that many FBI-
maintained arrest records are missing final dispositions.
     Most FBI civil fingerprint submissions typically are 
collected by law enforcement agencies, such as police departments and 
jail facilities. These locations are not the appropriate venues for 
fingerprint submissions for private sector criminal history screening. 
Fingerprints for these checks should be collected through an 
unobtrusive electronic means, such as flat prints, in non-law 
enforcement settings.
     When providing FBI criminal history information to private 
employers, we should not undermine the reentry policies that state and 
federal consumer reporting laws seek to promote by limiting the 
dissemination of certain kinds of criminal record information by 
consumer reporting agencies. Expanded private sector access to FBI 
criminal history information should therefore include record screening 
in accordance with consumer reporting laws. This screening should be 
done to respect the limits those laws place on the dissemination of 
certain criminal histories for use in employment decisions. Congress 
and the state legislatures may change those restrictions from time to 
time, depending on the balance they wish to strike between promoting 
privacy and reentry and allowing the free flow of public record 
information to users making risk assessments to promote public safety. 
Our recommendations in this area include suggestions to consider 
changes in the FCRA to provide some greater uniformity and 
predictability in access to criminal history information among the 
states.
     Finally, suitability criteria can play an important role 
in the screening process by helping guide a determination by an 
employer of the relevance of criminal history to the duties or 
responsibilities of a position. For that reason, the report recommends 
that Congress consider whether guidance should be provided to employers 
on appropriate time limits that should be observed when specifying 
disqualifying offenses and on allowing an individual an opportunity to 
seek a waiver from the disqualification. Federal and state equal 
employment opportunity laws and regulations bear on the use of criminal 
records in deciding an individual's job suitability. Therefore, as 
required by the FCRA, private employers allowed expanded access to FBI 
criminal history information should certify that information under this 
expanded access authority will not be used in violation of those laws.
    The Report concludes that if the information is handled properly, 
allowing dissemination of FBI criminal history records to private 
employers can not only provide more accurate and reliable information 
for use in suitability screening, but also enhance individual 
protections for privacy and fair use of the information.
    Thank you for the opportunity to appear before this Subcommittee 
today. I would be happy to answer your questions.
                                 ______
                                 
    Chairman Andrews. Mr. Campbell, thank you very much for 
your longstanding work on this issue and for your testimony 
today.
    I notice on Page 5 of your written testimony, which without 
objection will be made a part of the record----
    Mr. Campbell. Thank you.
    Chairman Andrews [continuing]. You reference the 2006 
report that you played such an important role in, and say, 
``The current access scheme has created a patchwork of 
statutes, including over 1,200 state statutes under P.L. 92544. 
This patchwork allows access to FBI criminal history 
information inconsistently across states, across industries, 
even inconsistently within industries. The resulting 
inconsistent access authority often affects critical 
infrastructure industries. For example, while the banking and 
nursing home industries have access authority, the chemical 
industry does not.''
    Could you expand on that point? Does that mean that 
throughout the country the chemical industry is not included in 
this? Or is it just in certain places? What does that mean?
    Mr. Campbell. There may be certain states that have passed 
92544 laws that allow criminal history checks for chemical 
companies in their states, but today there is no federal law 
that provides authority for the chemical industry to get FBI 
background checks.
    I know that the Department of Homeland Security recently 
issued guidelines to the chemical industry on security and they 
do require criminal background checks for certain types of 
access to those facilities. And in those regulations, they 
indicate that they can use commercial sources or whatever other 
sources are available.
    Chairman Andrews. How would you characterize the report's 
recommendation, the 2006 report's recommendation, with respect 
to whether or not all people working as security guards in 
critical infrastructure industries have background checks? What 
does the report say about that?
    Mr. Campbell. Well, the report didn't address specifically 
the private security guard industry. But when we issued our 
regulations under this law, we did acknowledge that the private 
security industry is growing rapidly and performing an 
increasingly vital role in protecting the public from violent 
crime and terrorism, and we stated that the key to preserving 
the trust placed by the public in private security guards 
performing their protective duties are background checks that 
include a criminal history check of FBI information.
    Chairman Andrews. Now, the other point is I think I heard 
you say that the recommendations of the report say that in 
states that opt out of access to the background check, federal 
background check system, that the attorney general should 
establish a means through which this information is available 
to employers. Is that what you said?
    Mr. Campbell. That is part of our recommendation. And I 
think what we were acknowledging there is the reality that it 
is going to be very difficult to expect all 50 states to 
provide uniform access to these kinds of checks. And if we are 
interested in providing access to employers, there needs to be 
some kind of federal mechanism to allow that access so that it 
is more uniform and there is more rationality in the----
    Chairman Andrews. And did I hear you say that that 
mechanism of access for states that opt out should be some 
third-party purveyor of the information?
    Mr. Campbell. One of the key recommendations that we make 
is that rather than having state and federal agencies act as 
suitability clearinghouses for private, unregulated employers, 
that we find a way that we can disseminate the information to 
the users. And that is the private employers.
    Right now, 92544 requires that they only go to a state 
agency. The fact that a state agency has to look at the record 
and examine it and make a decision whether it falls within 
certain categories and then give a red light or a green light 
to the user has meant that many of these authorities have not 
been implemented. So that is the reason for our recommendation 
that we find a way to----
    Chairman Andrews. I also note that one of the 
recommendations that you make is that it is important that 
there be privacy criteria, that employers and third parties 
handling this information adequately safeguard the records of 
employees. Could you just briefly expand on what you think 
those privacy considerations should look like?
    Mr. Campbell. Yes. We have detailed privacy 
recommendations, which include that users enrolling in the 
system give them the authority to do it, that they agree to 
limitation of the use of that information for only that 
purpose, that there be privacy act comply and consent notice, 
that there be rights of review and challenge of the 
information, that a newly streamlined automated appeal process 
be developed for individuals who want to challenge that 
information, that there be limits on redissemination of the 
information, that there be information security procedures and 
compliance audits. It is a very detailed recommendation.
    Chairman Andrews. What kind of enforcement mechanism do you 
think should exist to enforce those requirements? And then my 
time is up.
    Mr. Campbell. Well, we do recommend that there be a 
criminal penalty for misuse of the information or for using the 
information for other than the purposes authorized. And of 
course, if users are enrolled in the system, we can withdraw 
their right if they abuse it to have access to this 
information.
    Chairman Andrews. Thank you very much, Mr. Campbell.
    Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you, Mr. Campbell.
    Under the current law, which you went through very 
carefully, 92544 and the 2004 act, not under the proposals of 
the chairman's bill or your report, but under current law as we 
sit here today, who is able to get access to the federal 
criminal history record and under what circumstances, as we are 
today? Who has access to that?
    Mr. Campbell. Well, if a state has passed a state statute 
that will authorize particular employers to get access or if 
there is a licensing scheme, those employers have the right to 
access.
    There are certain federal statutes. For example, the 
banking industry can come directly to the FBI and get an FBI 
rap sheet, and they do that through a channeling agent that is 
the American Bankers Association. The ABA collects the 
fingerprints, submits them to the FBI, and then they channel 
the records back to the banking institution.
    Mr. Kline. So the banker, or the bank, goes to the ABA, 
goes to get the information, comes back down the same channel?
    Mr. Campbell. That is right. And similar authority is 
allowed for the nursing home industry. They have to go through 
state identification bureaus, but there is a law that allows 
the dissemination of the criminal history information directly 
to a nursing home facility. So there is another precedent for 
providing the records back to the actual user as opposed to 
having a governmental agency screen or review the records for 
suitability.
    Mr. Kline. Or even a nongovernmental agency in the case of 
the ABA, for example.
    Mr. Campbell. That is right. And the ABA, they don't look 
at the records. They just pass the records back down to the 
bank.
    Mr. Kline. Ah. Okay.
    We are going to explore so many aspects of this, but 
clearly one of the things that has come out, we talked about 
Wyoming, came up earlier, but just in your opinion, as an 
informed observer, why are so many states apparently failing to 
meet the obligations of the 2004 law?
    Mr. Campbell. We don't have specific information on why 
states aren't necessarily implementing the Private Security 
Officer Employment Authorization Act. We did, however, get 
general information on the attitude of the states with respect 
to doing background checks when we were doing the report. We 
got input from state repositories and others involved in 
background checks at the state level.
    And most of them indicate that the biggest hurdle to 
getting checks done is the fact that the limitation on 
dissemination of the record to the user, and that when you 
require that, that means that the state has to designate an 
agency and the resources along with it to receive the criminal 
history information, examine it and make suitability 
determinations, and that is one of the reasons we recommended 
in our report that we find a way to authorize the dissemination 
and the information down to the user.
    The states also indicated that they support dissemination 
to the user, because they believe the individual company is in 
the best position to make a decision about the relevance of a 
particular record to the position in question.
    Mr. Kline. So in your opinion, then, it is fundamentally 
not some sort of philosophical issue, it is a question of 
resources, manpower and money. The states would rather not be 
in that business. Is that right?
    Mr. Campbell. That was certainly one of the factors that 
was indicated to us when we were preparing this report.
    Mr. Kline. And so the other way to do that would be to have 
the individual employer, small business, medium business, 
something, somebody who is employing these private security 
guards, to go directly to the FBI, to the federal agency, to 
get the information. Presumably, that would mean personnel and 
resources on the part of the FBI to answer these questions. Is 
that right?
    Mr. Campbell. It would, and one of the things that we would 
want to do in looking at any proposed amendment is to consider 
the resource impact of any proposed changes.
    We made recommendations that some authority ought to be 
provided for allowing an authorized recipient to go to the FBI 
if a state doesn't make the records available.
    But as far as particular proposals, we have to take a look 
and provide specific feedback on particular language.
    Mr. Kline. Okay.
    Thank you, Mr. Chairman. I yield back.
    Chairman Andrews. Thank you, Mr. Kline.
    Mr. Hare, do you have any questions?
    Mr. Hare. No, I don't, Mr. Chairman. I just want to thank 
you for having the hearing. It is a wonderful piece of 
legislation. I look forward to working with you on it.
    Chairman Andrews. Thank you very much.
    Mr. Campbell, we really appreciate your testimony. If we 
can prevail upon you, I am sure we all be calling upon you 
again as we go through the process of refining this idea. Your 
work has really been exemplary and your wealth of information 
is very much needed by us, so thank you.
    And I was only kidding about Lafayette College.
    Mr. Campbell. Bucknell is a great school.
    Chairman Andrews. What did you say about Bucknell?
    Mr. Campbell. Bucknell is a great school.
    Chairman Andrews. You are welcome back any time, then. Some 
day, when you are attorney general, you can come back. That is 
great. Thank you, sir.
    Mr. Campbell. Thank you, Mr. Chairman.
    Chairman Andrews. We all ask the second panel to come 
forward, and I will start to introduce the members of the 
second panel as they take their seats.
    Joe Ricci is executive director of the National Association 
of Security Companies, the nation's largest private security 
trade association. He is also the founder and owner of Ricci 
Communications, which implements and manages communications 
efforts for corporations.
    Mr. Ricci has worked with many international security 
companies, including ASIS International, ICX Technologies and 
Securitas Security Services.
    Welcome, Mr. Ricci.
    Mr. Weldon Kennedy is vice chairman of Guardsmark LLC, a 
private security company, a position he has held since 1997. 
After serving as a naval intelligence officer, Mr. Kennedy 
joined the FBI in 1963 and stayed with the bureau for 33 years. 
He rose through the ranks, eventually serving as its deputy 
director, the FBI's second highest position and its highest 
nonpolitical appointment.
    Welcome, Mr. Kennedy, we are glad that you are here.
    Mark de Bernardo enjoyed his time with us so much 2 weeks 
ago, he came back today.
    Mark is a partner with the law firm of Jackson Lewis, a 
labor and employment law firm. In the past, Mr. de Bernardo has 
served as special counsel for domestic policy and director of 
labor law for the U.S. Chamber of Commerce.
    He received his B.A. from Marquette University in 1976 and 
his J.D. from the Georgetown University Law Center in 1979.
    Welcome back. Glad to have you with us.
    Donna Uzzell is the chair of the National Crime Prevention 
and Privacy Compact Council. Ms. Uzzell is also director of 
criminal justice information systems for the Florida Department 
of Law Enforcement, a position she has held since 1996. She was 
instrumental in the creation and maintenance of Florida's 
sexual offender and sexual predator registration and 
notification program.
    Ms. Uzzell was an officer with the Tallahassee Police 
Department from 1981 until 1993. She earned her B.S. from the 
Florida State University School of Criminology.
    Welcome. We are glad to have you with us.
    And finally, we are honored to have Floyd Clarke with us 
today. Mr. Clarke is former director of the Federal Bureau of 
Investigation and testifying on behalf of Allied Security 
Holdings, the parent company of Allied Barton Security 
Services, where he holds a position on its board of managers.
    Mr. Clarke joined the FBI as a special agent in 1964, 
working in Birmingham, Boston, Philadelphia and Kansas City. He 
progressed to be the supervisor, assistant special agent in 
charge, special agent in charge, assistant director, executive 
assistant director and deputy director before finally being 
named acting director in 1993.
    He obtained both his B.A. and J.D. from the George 
Washington University.
    Director Clarke, nice to have you with us this morning as 
well.
    So we are going to begin with Mr. Ricci. We note that there 
is a box in front of you. It has lights on it. You have 5 
minutes to summarize your excellent written testimony, which is 
going to be made a part of the record permanently for the 
committee.
    When the yellow light goes on, it means you have 1 minute 
left. When the red light goes on, it means the 5 minutes are up 
and we would ask you to expeditiously summarize and complete 
your testimony.
    Mr. Ricci, welcome to the committee.

    STATEMENT OF JOSEPH RICCI, EXECUTIVE DIRECTOR, NATIONAL 
               ASSOCIATION OF SECURITY COMPANIES

    Mr. Ricci. Chairman Andrews, Ranking Member Kline and 
members of the committee, my name is Joseph Ricci and I am the 
executive director of the National Association of Security 
Companies, or NASCO.
    NASCO is the nation's only organization dedicated to 
representing private contract security companies and NASCO 
members employ nearly 500,000 highly-trained security guards 
serving throughout the government and commercial sectors.
    NASCO is committed to initiating and supporting efforts at 
the federal, state and local levels to raise standards for the 
licensing of private contract security firms and the 
registration, screening and training of security guards.
    In 2004, Congress passed the Private Security Officer 
Employment Authorization Act, which authorized contract 
security companies to obtain FBI criminal history records 
checks for screening private security guards in every state. 
While several states conducted these checks based on state 
statutes, most did not.
    Unfortunately, now 3 years after the passage of the law, 
the situation remains relatively unchanged. Given public policy 
and the compelling reasons for the existing law, we believe 
efforts to increase the facilitation of FBI records checks 
cannot be ignored.
    NASCO welcomes the congressional attention to this problem 
and we are particularly grateful to Chairman Andrews for his 
continuing interest in improving the background screening of 
security. NASCO supports any attempts to improve the 
facilitation of FBI CHRI checks, including legislation, 
education and dialogue.
    NASCO and its members look forward to working with 
Representative Andrews and other concerned legislators to 
improve access to the FBI checks, including amending the PSOEAA 
to access checks through a third-party DOJ authorized entity or 
channeler to process the FBI checks in states without 
established processes.
    Employers of private security guards could use these 
channelers to access and screen employees based on existing 
state screening standards or suitability determinations; in the 
absence of state standards, using federal standards established 
by the PSOEAA.
    When the PSOEAA was considered by the House of 
Representatives in 2004, it was reported that approximately 
half the states were not conducting FBI criminal records checks 
for private security. While only 40 states license private 
security firms and guards, only 31 of these states require or 
facilitate FBI records checks. And in seven of these states, 
the FBI check is only done for armed guard applicants.
    More recent estimates have put the state numbers that offer 
FBI checks at 16 states. Regardless of the exact number of 
states conducting FBI checks on security guards, it is clear 
that despite the authority and a law directing states to 
facilitate these checks, the majority of the states do not 
conduct FBI federal criminal history checks.
    In trying to find a solution, it is important not to lose 
sight of the urgent national security and public safety 
concerns associated with conducting criminal history checks and 
NASCO is hopeful a solution can be fashioned as soon as 
possible.
    Today, nearly 2 million people are employed with the 
private security industry domestically, protecting businesses, 
public offices, schools, hospitals, business districts, 
residential communities, nursing homes, day care centers and 
shopping centers. And as Representative Andrews said earlier, 
they protect 85 percent of the critical infrastructure, 
including public utilities, pipelines, ports, reservoirs, 
bridges, tunnels and many others.
    If this is a policy argument, empirical evidence further 
highlights the importance of FBI checks, including results from 
several states, including California, that when they 
implemented their FBI checks in 2003 it resulting in nearly 15 
percent of guard applicants being denied licenses based on 
criminal convictions for sex-related offenses, burglary, 
robbery and battery outside of the state. Similar results in 
other states substantiate these figures.
    The use of channelers to facilitate criminal background 
checks is a well-developed concept and was recommended in the 
2006 DOJ Report on Background Checks. It specifically addressed 
the issue of employers getting FBI checks from non-state 
parties.
    NASCO has specifically discussed the problems of obtaining 
FBI CHRI checks and the use of channelers with DOJ officials 
and believes this approach would increase the facilitation of 
these checks.
    NASCO has reviewed H.R. 2703 and looks forward to the 
opportunity to discuss the legislation in detail with the 
drafters and the committee staff. As noted, NASCO supports the 
primary element of H.R. 2703, which authorizes the use of non-
state channelers or any designated by DOJ to conduct FBI checks 
on security guard employers when a state is not performing 
these checks.
    I want to thank the committee for holding today's hearing 
and paying attention to the problem associated with a lack of 
FBI CHRI checks for private security guards pertaining to the 
existing law. We believe these checks, combined with NASCO's 
continued efforts to raise standards at the federal, state and 
local level for private security are vital to our national 
homeland security and the issue of public safety and 
protection.
    We look forward to working with you to find a solution to 
the problem.
    Thank you.
    [The statement of Mr. Ricci follows:]

 Prepared Statement of Joseph Ricci, CAE, Executive Director, National 
               Association of Security Companies (NASCO)

    Chairman Andrews, Ranking Member Kline, and members of the 
Committee, my name is Joseph Ricci, and I am the Executive Director of 
the National Association of Security Companies (NASCO). NASCO is the 
nation's only organization dedicated to representing private contract 
security companies, and NASCO member companies employ nearly 500,000 
highly trained security guards serving throughout the government and 
commercial sector. NASCO is committed to initiating and supporting 
efforts at the federal, state and local levels to raise standards for 
the licensing of private contract security firms and the registration, 
screening and training of security guards.
    In 2004, Congress passed the Private Security Officer Employment 
Authorization Act (PSOEAA) which authorized contract security companies 
to obtain FBI Criminal History Records Checks (CHRI) through the states 
for screening private security guards in every state.\1\ While some 
states were already conducting these checks pursuant to state statues, 
most were not. Unfortunately, now three years after the passage of the 
PSOEAA and two years after the implementing regulations were published 
by the Department of Justice (DOJ), the situation remains relatively 
unchanged. NASCO knows of no states facilitating contract security 
company access to FBI CHRI checks for the screening of private security 
guards pursuant to the PSOEAA. Given public policy and the compelling 
reasons for passing the PSOEAA, conducting criminal records checks for 
security guards can no longer continued to be ignored.\2\
    NASCO welcomes the congressional attention to this problem, and we 
are particularly grateful to Chairman Andrews for his continuing 
interest in improving the background screening of security guards and 
H.R. 2703 is one attempt to solve this problem. NASCO supports all 
efforts that improve the facilitation of FBI CHRI checks including 
legislation, education and dialogue. NASCO and its members look forward 
to working with Rep. Andrews and other concerned legislators pursue 
activities to improve the facilitation of these checks including 
amending the PSOEAA to access checks through a third-party DOJ 
authorized entity (``channeler'') to process FBI CDHRI checks in states 
without established processes pursuant to the PSOEAA. Employers of 
private security guards will be able to utilize a ``channeler'' to 
access and screen employees based on existing state screening 
(``fitness determination'') standards or in absence of such standards 
pursuant to the federal standards in the PSOEAA.\3\
    The regulation and licensing of private security guards has 
traditionally been the domain of the states, and as mentioned, for many 
years states--pursuant to state statutes passed after a 1972 federal 
law authorizing state use of FBI CHRI for employment regulation--have 
been conducting FBI checks on security guards as part of that state's 
security guard licensing process.\4\ However, when the PSOEAA was being 
considered by the House of Representative in 2004, it was reported that 
approximately half the states were not conducting FBI criminal record 
checks for private security guards. While 40 States were licensing 
private security officers, only 31 of those states permitted or 
required an applicant to undergo a FBI fingerprint check for prior 
criminal history, and in seven of those states, an FBI check was done 
only when a person was applying for an armed guard position.\5\ More 
recent estimates have put the number of states that offer FBI checks 
for security guards at 16.\6\
    Regardless of the exact number of states that are currently 
conducting FBI checks on security guards, it is abundantly clear that 
at this moment--despite the pre-PSOEAA authority states possessed to 
conduct FBI checks on security guards, and despite the enactment of 
PSOEAA directing states to facilitate these checks--the majority of 
states do NOT conduct these checks.
    As mentioned, NASCO supports amending the PSOEAA so that employers 
of security guard could alternatively use a ``channeler'' to obtain FBI 
criminal history checks in states not doing check. Furthermore, NASCO 
believes such legislation is strongly justified by Congress' passage of 
the PSEOAA, public policy, and current federal and state background 
check practices and realities.
The PSOEAA and Public Policy
    First, and foremost, when Congress passed the PSOEAA in 2004, the 
purpose of the law was clear--to provide the authority for security 
guard employers in states not doing FBI checks to get these checks per 
request. At the time, directing employers to go through state 
identification bureaus made sense since many of the states not 
conducting FBI checks were regulating security guards and states were 
already familiar with and conducting FBI checks on other classes of 
employees. However, for a variety of reasons, it is now very apparent 
that processing the FBI checks through the state identification bureau 
is not sufficient or workable.
    In trying to find a solution to the current FBI check 
``processing'' problem, it is very important not to lose sight of the 
urgent national security and public safety concerns that lead to the 
passage of the PSOEAA and NASCO is hopeful a solution can be fashioned 
as soon as possible.
    Today, nearly two million people are employed in private security 
domestically compared to less than 700,000 law enforcement personnel. 
Security officers are on duty protecting businesses, public offices, 
schools, hospitals, nursing homes, day care centers, shopping centers 
and housing communities. In addition, private security officers are 
stationed at many of the nation's critical infrastructure sites and 
facilities including nuclear plants, public utilities, oil pipelines, 
ports, bridges, tunnels and many other places.
    Recent estimates indicate that 85% of the nation's infrastructure 
is owned and operated by private industry and private security officers 
protect the vast majority of these assets. Similarly, the overwhelming 
majority of ``first responders'', who are first on the scene in the 
case of an attack or other emergency situation in our manufacturing 
plants, office buildings, banks, public utilities, shopping malls, are, 
more often than not, private security officers.
    In addition to the policy arguments much empirical evidence was 
also provided to Congress on why FBI screening was needed for security 
guards during the consideration of the PSOEAA. Here are three examples 
provided at the 2004 House hearing on the PSOEAA.
    (1) In California, in 2003 there were over 69,000 ``Guard Card'' 
applicants. Of those applicants, almost 18,000 had an FBI ``rap'' sheet 
indicating some sort of a prior criminal history. Thanks largely to a 
new law that went into effect in California in 2003, over 9,000 or 51% 
of those applicants with a rap sheet were denied a guard card. The 
three most common reasons for denial were for sex related offenses, 
burglary/robbery and battery convictions. Other data also showed that 
registered sex offenders frequently attempted to obtain a guard card in 
California.\7\
    (2) In Illinois, a 2004 review showed that the FBI criminal history 
records check eliminated four times as many applicants as the Illinois 
State Police check for crimes committed within the State. Put another 
way, Illinois State Police clear 87% of all applicants while the FBI 
check clears only 64%--a 23% difference.\8\
    (3) Rep. Shelia Jackson-Lee asked one of the witnesses, Westchester 
DA Jeanine Pirro, ``Has there been difficulty in hiring private 
security officers and finding that they have criminal backgrounds?'' 
Ms. Pirro replied, ``It is difficult to identify those individuals who 
have a criminal history from another State in New York. That is the 
problem and just recently in Westchester there were several security 
guards that my office indicted for sexual assault of students who had 
criminal histories in other States that we had no way of knowing and 
that the schools had no way of knowing.'' \9\
    Given the importance of private security to protecting our nation's 
critical infrastructure, as well as people and property, and given the 
implicit trust that people have, and should have, in private security 
guards, it made complete sense when Congress passed the PSOEAA in order 
to better ensure that persons who are convicted of serious crimes are 
identified and prevented from employment in these positions of trust. 
It also makes sense now that Congress pursues opportunities to 
facilitate these FBI CHRI checks as authorized in PSOEAA.
Background Check Developments and Realities
    While the Department of Justice and the FBI can best describe the 
processes necessary to set up a system for facilitating FBI CHRI checks 
through an authorized entity or channeler, the use of a private entity 
or a ``channeler'' to facilitate criminal background checks is a well 
developed concept. In 2006, pursuant to a request from Congress, DOJ 
produced a comprehensive ``Report on Background Checks'' that 
specifically addressed the issue of employers getting FBI checks from 
non-state parties, and the use of private third party channelers was 
recommended.\10\
    NASCO has specifically discussed the PSOEAA checks problems with 
DOJ officials and we have not received any indication that, if 
authorized by Congress, the use of private parties or channelers to 
conduct PSOEAA FBI checks on security guards would not work. 
Furthermore, the DOJ Report states that ``there already exist standards 
to govern management of records'' by channelers.\11\
    Of course, such a screening entity or ``channeler'' would be fully 
governed by applicable laws and regulations regarding the handling of 
FBI records. In fact, the use of private channelers to obtain FBI CHRI 
is already authorized and regulated by DOJ.
    In the DOJ Background Report, it is recommended that ``existing 
private sector infrastructure for background screening'' (such as a 
``consumer reporting agency'') be used to obtain FBI checks in state 
not conducting such checks. As mentioned in Footnote 1, if a state is 
not regulating an industry, there are a variety of reasons complicating 
any efforts to facilitate these checks and prompting states to not want 
to conduct FBI checks, screening or fitness determinations for employee 
in that industry. When a state is not willing to do FBI checks on 
certain employees, DOJ recommends that the FBI be able to send the 
CHRI; (1) directly to an authorized employer (direct access is 
currently not legal for security guard employers under the PSOEAA or 
other statutes and is a much bigger issue) or, (2) to a third party who 
could do the required state or federal screening for the employer.
    As mentioned, there are already standards in place that would 
safeguard the FBI CHRI when received by a channeler, and the 
authorization for third parties to conduct FBI screening when a state 
is not doing it as DOJ recommends, is precisely what security guard 
employers need from Congress in legislation to address the current 
problem with implementation of the PSOEAA.
    This solution is especially needed to facilitate checks in those 
ten states where there are no regulations governing security guards. 
The DOJ Report explains why FBI records should go to non-state parties;
    ``* * * (t)he FBI should be authorized to disseminate FBI-
maintained criminal history records directly to employers or entities 
authorized to request a criminal history background check, or consumer 
reporting agencies acting on their behalf, subject to screening and 
training requirements and other conditions for access and use of the 
information established by law and Attorney General regulations behalf, 
subject to screening and training requirements and other conditions for 
access and use of the information established by law and Attorney 
General regulations. EXPLANATION: A major limitation in the background 
check scheme under Public Law 92-544 is the requirement that the 
records be disseminated only to a governmental agency that applies 
suitability criteria and provides the results of its fitness 
determination--qualified or not qualified--to the employer or entity 
involved. This makes sense when the state is affirmatively regulating 
employment in a particular area and a government agency is designated 
as responsible for reviewing the records and making suitability 
determinations according to specified criteria. This model does not 
necessarily make sense in industries where employment is not being 
regulated by the government. Requiring suitability screening by a 
government agency when there is no regulation generally has meant that 
the screening does not get done. This has been the true in the case of 
the NCPA/VCA. Notwithstanding the authority provided under those 
statutes, most states have not created means for the screening of 
employees or volunteers for entities providing services to children, 
the elderly, and disabled persons.\12\
    DOJ has made it clear, and state agencies have confirmed, that 
unless a state is already conducting fitness determinations or 
suitability screening for employers as part of a licensing or 
regulatory regime for a particular class of employees, it is not likely 
that states will affirmatively undertake setting up a process to 
conduct further checks or screening--despite federal legislation such 
as the PSOEAA authorizing and encouraging such checks. For states to 
start doing new FBI checks, it will involve the need for additional 
state resource and administrative support, and such a system cannot be 
set up simply because there is also authority to collect user fees. In 
fact, in those states where there is no regulation of security guards, 
it has been suggested that state legislation would be necessary to set 
up an FBI check system pursuant to the PSOEAA, thus putting security 
guard employers in the same difficult situation they were in before the 
passage of the PSOEAA.
    NASCO will continue to work state agencies and organizations, state 
representatives and support all efforts to improve the facilitation of 
FBI CHRI checks pursuant to the implementation of the PSOEAA. However, 
given the inaction of the past several years, the observations of DOJ 
on such situations and state level budget and administrative hurdles, 
NASCO clearly believes congressional authorization to use third parties 
to obtain FBI checks is a solution definitely worth pursuing.
    Regardless of the process to conduct these checks, NASCO recognizes 
and supports the authority of states to regulate the security guard 
industry. If Congress allows third parties to conduct FBI checks for 
employees in states where such checks are not available, NASCO fully 
supports the DOJ Report's recommendation ``that the law of the state of 
employment should be applied in the screening'' when an FBI check is 
done for an employee in a that state.\13\ NASCO is very concerned about 
any implication, which could be received negatively by the states, that 
legislation to facilitate FBI checks for security officers in every 
state will permit federal screening standards to supersede existing 
state standards.
Comments on H.R. 2703
    NASCO has reviewed H.R. 2703 and looks forward to the opportunity 
to discuss the legislation in detail with the drafters and Committee 
staff. As noted, NASCO supports the primary element of H.R. 2703 which 
authorizes the use of a non-state ``entity designated by DOJ'' to 
conduct PSOEAA checks for security guard employers when a state is not 
doing such checks. NASCO believes this notion should be the foundation 
of any legislative effort to address to the current situation.
    There are some elements of H.R. 2703 which raise issues that 
require more clarification and discussion including the structure and 
processes for the DOJ authorized entity, the list of disqualifying 
offenses, mandatory checks and temporary hires, as well as 
clarification regarding application of standards for fitness 
determinations and safeguards to prevent superseding of state authority 
to regulate private security.
Conclusion
    Thank you for holding today's hearing and bringing attention to the 
problem associated with the lack of FBI CHRI checks for private 
security guards pursuant to the implementation of PSOEAA. We believe 
these checks, combined with NASCO's continued efforts to raise 
standards at the federal, state and local level for the licensing of 
private security companies and the registration, screening and training 
of private security guards, is vital to our national security and an 
issue of public safety and protection. We look forward to working with 
you to find a solution to this problem.
                                endnotes
    \1\ Pub. L. No. 108-458 Sec.  6402 (2004), 28 USC Sec.  534
    \2\ The term ``check'' and ``screen'' are used interchangeably. 
Both denote a party--such as a state agency or a DOJ designated 
entity--obtaining a person's complete FBI CHRI or ``rap sheet'' and 
then screening or checking the rap sheet for arrests and/or convictions 
that may or not under applicable law disqualify the person from 
employment or a license or may or may not have to be reported to an 
employer. This screening/checking process is also referred to as a 
``fitness determination''. It is also important to note, that under 
pre-existing federal law that authorized states to access FBI CHRI for 
certain types of employees including security officers, and also under 
the PSOEAA, a security officer employer is never allowed to be given 
the FBI ``rap sheet.'' Thus any state currently doing FBI checks on 
security guards obtains the rap sheet and then uses it as a part of a 
fitness determination (e.g. licensing application decision). Any new 
state doing an FBI check pursuant to the PSOEAA would also have to get 
the FBI rap sheet and then review it against any employment or 
licensing standards the state may have, or if the state did not have 
such standards, then against the reportable offense standard in the 
PSOEAA. The administrative burden and cost of making fitness 
determinations is cited in several sources as major reasons why states 
are not and will not do security officer FBI background checks.
    \3\ NASCO ``Background Screening Resolution'' October 17, 2007 
APPENDIX 1
    \4\ PL 92-544
    \5\ Prepared Statement of Mr. Don Walker, Chairman, Securitas 
Services USA, ``Legislative Hearing on S.1743 the ``Private Security 
Officer Employment Authorization Act of 2003,'' Before the House 
Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, 
108th Cong., Serial No. 108-89 (March 30, 2004). http://
judiciary.house.gov/HearingTestimony.aspx?ID=59
    \6\ January 30, 2008 Letter to Attorney General Michael Mukasey 
from Senators Joseph Lieberman, Carl Levin, Lamar Alexander, and 
Representative Steve Cohen.
    \7\ See Footnote 2, Statement of Don Walker, Chairman Securitas 
Services USA.
    \8\ Ibid.
    \9\ Legislative Hearing on S.1743 the ``Private Security Officer 
Employment Authorization Act of 2003,'' Before the House Judiciary 
Subcommittee on Crime, Terrorism, and Homeland Security, 108th Cong., 
Serial No. 108-89 (March 30, 2004). Transcript at Page 68. http://
commdocs.house.gov/committees/judiciary/hju92829.000/hju92829--0f.htm
    \10\ U.S. Department of Justice Office of the Attorney General 
``THE ATTORNEY GENERAL'S REPORT ON CRIMINAL HISTORY BACKGROUND CHECKS'' 
June 2006.
    \11\ Ibid at 102
    \12\ Ibid at 90.
    \13\ Ibid at 120.
                                 ______
                                 
    Chairman Andrews. Mr. Ricci, thank you for your testimony. 
We appreciate your constructive approach to this, and we know 
that is something shared by each of the witnesses.
    Mr. Kennedy, welcome to the committee.

  STATEMENT OF WELDON KENNEDY, VICE CHAIRMAN, GUARDSMARK, LLC

    Mr. Kennedy. Thank you, Mr. Chairman, Ranking Member Kline 
and members of the subcommittee. Thank you for this opportunity 
to present the views of Guardsmark concerning H.R. 2703.
    I am Weldon Kennedy, as previously introduced, the vice 
chairman of Guardsmark, and I was previously the director of 
the FBI. An experience in these capacities, I hope, to be 
useful to this committee.
    Guardsmark appreciates the chairman's interest in the 
common goal that we all share, increasing the access of the 
private security industry to a nationwide criminal history 
record information. This interest will undoubtedly promote U.S. 
homeland security and we thank you for your willingness to help 
in this regard.
    Guardsmark has concerns about H.R. 2703 that led us to 
recommend that it not be enacted. We certainly share your 
objective of obtaining proper access for our industry to 
nationwide criminal history record information.
    Guardsmark has two principle concerns with 2703. First, it 
federalizes a regulatory system that is currently based in over 
40 states. And, No. 2, it pulls the FBI into the employment 
process much further than I believe that the bureau or the 
Department of Justice would be comfortable.
    On this first point, we observe that the private security 
industry is regulated in over 40 jurisdictions in the United 
States. Regulation of who may enter a profession is a classic 
state function and the PSOEAA made no fundamental changes to 
this regime in 2004.
    H.R. 2703, however, would shift the system to one of much 
greater federal intervention, which could prompt the states to 
reduce their scrutiny of companies and individuals working in 
our industry. We think that this unintended result would be 
adverse to the industry and inconsistent with improving 
homeland security.
    Our second main point is that the FBI would not likely be 
comfortable in taking an enhanced role in the regulation of the 
security industry. While sharing criminal history record 
information is certainly acceptable to the FBI, H.R. 2703 goes 
well beyond the sharing function, imposing expanded regulatory 
responsibility upon the FBI and imposing expanded regulatory 
responsibility on the FBI is unlikely to lead to positive 
results for the industry.
    Some in our industry may expect that the FBI alone can 
solve our criminal history record access problems, but I 
believe those expectations are unrealistic and that 
disappointment is inevitable. The states simply have to be a 
part of the solution because it is information on state 
criminal convictions to which we need access.
    We also have a number of additional drafting concerns with 
H.R. 2703 that I will simply identify now and ask that the 
subcommittee review our written statement for all the details.
    In summary, the bill will unwisely create a new federal 
precondition to employment of a private security officer. It 
establishes a federal employment eligibility standard that 
could conflict with certain state standards. Three, it allows 
for a federally designated entity to assess the standards that 
have traditionally been reserved to the states. Four, it 
requires the states to respond in 3 days, which could provoke 
some of them to opt out of the bill altogether. And, five, it 
significantly expands the list of disqualifying offenses in a 
manner that could encourage opposition from the employee rights 
perspective, a criticism that the 2004 law worked hard to 
avoid.
    Mr. Chairman, we are happy to work with you in a 
constructive manner to improve our industry's access to CHRI. 
Let me repeat that we appreciate your interest and your 
objectives. We reluctantly oppose the legislation you have 
introduced, but we desire to work constructively and closely 
with you and this committee to devise suitable alternative 
approaches.
    Thank you again for this opportunity to testify.
    [The statement of Mr. Kennedy follows:]
    
    
    
    
    
    
                                ------                                

    Chairman Andrews. Mr. Kennedy, thank you for the spirit of 
your testimony and very worthy suggestions. We really do 
appreciate your constructive approach to this.
    Mr. Kennedy. Thank you.
    Chairman Andrews. Mr. de Bernardo, welcome back.

        STATEMENT OF MARK DE BERNARDO, JACKSON LEWIS LLP

    Mr. de Bernardo. Thank you, Mr. Chairman.
    Thank you, Mr. Kline, members of the subcommittee.
    I appreciate this opportunity to testify in support of 
criminal background checks and in support of H.R. 2703.
    The Council for Employment Law Equity, which I represent, 
and Jackson Lewis, which is a 450-lawyer, 34-city employment 
law firm representing management, we support employers' 
interests, the users of criminal background checks. And let me 
say, I think the role of criminal background checks in 
employment is strong, appropriate and necessary, and it is 
particularly necessary in such industries and in such 
employment categories as the use of security guards in private 
sector employment.
    We feel that employment use of criminal background checks 
is not only pro-employer, it is pro-employee and, ultimately, 
it is in the interest of the ex-offenders themselves. They have 
a better chance of being reintegrated into society and into 
employment by those employers who actually use criminal 
background checks. In fact, studies that are cited in my 
testimony uniformly say that those employers who use criminal 
background checks are more likely to hire ex-offenders than 
those employers who do not. In fact, three and a half times 
more likely.
    So that societal interest of having those people coming out 
of prison, getting them reintegrated in society, is actually 
served in this regard.
    But more information is better than less information, and I 
think the spirit and thrust of H.R. 2703 is that we would have 
more consistent information, we would have more information 
that is available to employers on a regular basis. Right now it 
really is a patchwork at the state level. There are great 
inconsistencies. You know the old saying, ``garbage in, garbage 
out.''
    You know, as employers we want to know whether or not the 
job applicants that are coming before us are qualified, and we 
particularly want to know this for those positions where there 
are high-risk populations, where there are people that are 
particularly vulnerable, whether they be customers, workforce 
or certain job positions that are discussed in my testimony, 
job positions in hospitals, day care centers, elder care. 
Certainly any jobs involving youth, school districts, youth 
camps, counseling programs, certainly any jobs involving 
national security or the defense industry.
    You know, if we are going to have defense contractors that 
are employing employees on military bases, we want to have 
every opportunity to know as much as we possibly can about 
those job applicants and do the screening. And the jobs go on 
and on. If you have access to financial securities or large 
amounts of cash, certainly those situations. Pharmaceutical 
companies, drug stores, anywhere where there would be access to 
drugs on the open market are going to be valuable.
    So what we want is more information, more consistent 
information, more readily available information. What we have 
now is information that comes from the states, which talks 
about conviction in that state.
    But, you know, so often those being released from prison 
are crossing state lines. Los Angeles County, 47,000 people 
released from prison are going to be in Los Angeles County last 
year. One-third of the 23 percent of those people being pulled 
from prison in California will be in Los Angeles County itself. 
Well, California has 11 percent of the nation's population. 
They have 23 percent of the nation's former prison inmate 
population, again concentrated in Southern California.
    So there are people crossing state lines with the 
inconsistency of what is going on at the state levels with the 
exclusion of those people who are serving out federal offenses. 
Sure, I am in favor of a system by which we can identify and 
have better information, more consistent information, more 
accurate information, and I applaud you, Chairman Andrews, for 
approaching this in one segment with H.R. 2703.
    [The statement of Mr. de Bernardo may be accessed at the 
following Internet address:]

    http://edlabor.house.gov/testimony/2008-02-26-MarkdeBernardo.pdf

                                 ______
                                 
    Chairman Andrews. Mr. de Bernardo, thank you very much for 
your contribution today.
    Ms. Uzzell, welcome.

     STATEMENT OF DONNA UZZELL, CHAIRWOMAN, NATIONAL CRIME 
             PREVENTION AND PRIVACY COMPACT COUNCIL

    Ms. Uzzell. Thank you.
    Good morning. I am Donna Uzzell and I work for the Florida 
Department of Law Enforcement. I am currently, as the chairman 
mentioned, the chairman of the National Crime Prevention and 
Privacy Compact Council.
    The council is a federal rule-making body that works in 
partnership with states, end-users and policy-makers like 
yourselves to inform or to regulate and facilitate the sharing 
of criminal history record information to non-criminal justice 
users to enhance public safety and still address privacy 
rights. To date, 27 states have ratified the compact and 11 
have signed our MOU.
    I am delighted to be here today. I represent my fellow 
states. I do need to say that my comments reflect the practices 
in my state and the individual opinions of several of our 
members and not our official position as a council, since this 
is a federal rule-making body.
    This council fully agrees that persons who are placed in 
any position of trust should be appropriately screened. 
Clearly, individuals such as private security guards are vital 
to the nation's domestic security. In Florida, I am proud to 
say that these checks have been done by our Division of 
Licensing for over 20 years. We average 30,000 checks a year. 
But as we heard, not all states do participate.
    In my handout I have expressed the concerns with the 
existing law and would be glad to expand on that during any 
Q&A. In regards to solutions, though, I would like to reference 
not only my testimony provided earlier on the AG Report on 
Criminal History Background Checks, but I would like to share 
with you firsthand experience from a proven model that is also 
referenced in the AG report.
    Several years ago in Florida volunteer agencies were 
considering implementing the National Volunteers for Children 
Act to protect children, the disabled and the elderly. There 
are a number of volunteer organizations, such as Boys & Girls 
Clubs and churches, that fall within this category, as well as 
large employers in our state, such as Universal Studios and 
Disneyworld.
    The dilemma was that no one agency could take on the 
workload of screening and no one criteria was appropriate. The 
solution, through an amendment to the act, was to allow the 
qualified entity, with the presence of a waiver, to receive the 
criminal history information and to make their own suitability 
determinations.
    This allowed us to implement this law in our state and the 
entities are subject to state audits to address privacy and 
security concerns. It has been working in our state since 1999 
and we have conducted over 140,000 criminal history checks 
since, using this model.
    Another model that is applicable, as Frank Campbell 
mentioned, was Public Law 105277, which was passed in 1998, 
allowing nursing home facilities to receive national criminal 
history information from the state in the event that a state 
statute was not in place. Three states take advantage of this 
law and in 2007 alone over 27,000 checks were done under that 
act.
    One more model that was recently enacted by Congress via 
Section 153 of the Adam Walsh Act is the ability for private 
schools to now receive the results of criminal history 
information to make suitability determinations for persons they 
employ. Similar to the private security guard industry, private 
schools across the country were receiving varied assistance in 
obtaining checks of their employees. When Congress passed the 
act in July of 2006, it enabled private schools to directly 
receive national criminal history information if the provision 
is requested by the governor and the checks are fingerprint 
based.
    In that same act, Congress made this provision available to 
private companies that contract with child welfare agencies for 
licensing of foster and adoptive parents. These models could be 
applied to the private security guard industry and would allow 
the states that wish to regulate the industry to continue doing 
so, but not hold hostage the companies in states where 
regulations do not exist.
    Several states that I have spoken to indicated they would 
be able to begin processing these checks if the information was 
passed down to the employing company. And I might add that the 
Florida Association of Security Companies emailed me and said 
they supported this approach.
    Privacy issues? Well, let me just say this: at least 25 
states already make criminal history information in their state 
available on the Internet. Private data companies compile this 
information and sell it around the country. Information 
provided by the FBI is at least fingerprint based and 
eliminates some of the harm done from someone mistakenly 
identified by name. And caveats could be put in place, like 
were mentioned in the AG report, to protect privacy.
    Rap sheets can be read. It is a myth that they can't. With 
minimum training, we have evidence of that across the country.
    If it is true that security guards do protect 85 percent of 
the nation's critical infrastructure, and I am glad to hear 
that--that is a number I have heard and I am glad to hear you 
say that, Mr. Chairman--and we trust them with tremendous 
responsibility, then why wouldn't we trust them to receive 
criminal history information to ensure that the right person is 
placed within these sensitive positions and allow public safety 
to take precedent?
    So, consistent with past congressional precedents, if 
legislation is enacted I would strongly consider allowing 
private security guards to receive the information. Despite 
what you may have been told, there are companies that would 
like to police themselves and are willing to step up to the 
plate and take on the responsibilities.
    And just one more thing, Mr. Chairman. I have heard 
anywhere from 16 to 32 to 40, just in preparing for this I 
pulled 17 states and 14 of the 17 actually do these checks. So 
what I will do as Compact Council chairman is I will be glad to 
work with the security guard industry, but I will do a poll and 
survey, and I would be glad to share the information not only 
of what states conduct the checks, but states that have any 
limitations, so I can share those with you as well.
    [The statement of Ms. Uzzell follows:]

   Prepared Statement of Donna M. Uzzell, Director, Criminal Justice 
Information Services, Florida Department of Law Enforcement; Chairman, 
        National Compact on Crime Prevention and Privacy Council

    Good Morning, I am Donna Uzzell and I am the Director of Criminal 
Justice Information Services for the Florida Department of Law 
Enforcement. I am here representing the National Crime Prevention and 
Privacy Compact Council and I currently hold the position as Chairman. 
On October 9, 1998, President Clinton signed into law the National 
Crime Prevention and Privacy Compact (Compact) Act, establishing an 
infrastructure by which states can exchange criminal records for 
noncriminal justice purposes according to the laws of the requesting 
state, and provide reciprocity among the states to share records. The 
Compact became effective April 28, 1999, after Montana and Georgia 
became the first two states to ratify it, respectively. To date, 27 
states have ratified the Compact and 11 states have signed the 
Council's Memorandum of Understanding (MOU) in voluntary recognition of 
the Council's authority to adhere to the rules and procedures of the 
Compact. The remaining states are represented by the FBI who has a 
designated member to the Council. Therefore, between the states who 
have ratified the Compact and established MOUs, 38 states are now under 
the purview of the Compact.
Goal and Mission of Compact Council
    The Goal of the Compact Council is to make available the most 
complete and up-to date records possible for noncriminal justice 
purposes. Our mission, is to work in partnership with criminal history 
record custodians, end users, and policy makers to regulate and 
facilitate the sharing of complete, accurate, and timely criminal 
history record information to noncriminal justice users in order to 
enhance public safety, welfare and security of society while 
recognizing the importance of individual privacy rights.
    Because our members are federally appointed by the United States 
Attorney General and federal agencies are represented on the Council, 
the council does not lobby or take a position on any specific 
legislation. However, I am delighted to be here today, representing my 
fellow member states and extremely pleased that the committee 
recognized the role of the Council and our subject matter expertise on 
issues such as the one before you today. My comments are reflective of 
the practices in my state and the individual opinions of several of our 
members and are not an official position of the Council.
Implementation of the Private Security Officer Employment Authorization 
        Act (PSOEAA)
    Let me begin by emphasizing that the Council members fully 
recognize the importance of ensuring that persons who are placed in any 
position of trust (whether it be persons with direct contact with 
children, the disabled and the elderly, or persons who work in nuclear 
regulatory plants, or in airports or drive hazmat materials) are 
appropriately screened and that a criminal history background check be 
performed on the individual before he or she is placed in that 
position. The information that has been relayed to the Council is that 
85% of the nation's critical infrastructure, including power plants, 
water treatment facilities, and telecommunications facilities are 
protected by the private security industry. Clearly, these individuals 
are critical to the nation's domestic security initiatives and serve in 
trusted positions.
    In Florida, private security guards, both armed and unarmed, 
receive a state and national criminal history check and the industry is 
regulated and licensed by our Department of Agriculture and Consumer 
Services, Division of Licensing. These checks have been done for over 
20 years and we average around 30,000 applications a year.
    I continue to hear a range of numbers as to how many states are 
actually performing criminal record checks on private security guards. 
I have heard numbers ranging from 16 to 25 to 32 states. Since the 
Private Security Officer Employment Authorization Act was passed, I am 
aware that several states have indicated they have enacted or broadened 
their own state statutes. Last week at a Council committee meeting, 
when I had learned that I would be testifying today, I conducted a 
quick poll of a few of my counterparts and found that the states of 
California, Texas, New Jersey, New York, Tennessee, Arkansas, Virginia, 
New Hampshire, Texas, Louisiana and Vermont also conduct state and 
national checks on private security guards armed and unarmed. In fact, 
according to the FBI there are 41 states, the District of Columbia and 
Puerto Rico that have requested and received authorization under Public 
Law 92-544 to perform national criminal history checks on private 
security guards. Some, like Georgia, the regulatory agency has 
authorization to do both armed and unarmed but regulates only armed 
security guards, some like Kansas and Oklahoma are permissive in their 
checks and are not mandatory.
    Because it appears that a current accurate accounting state by 
state does not exist, I am going to do a formal survey with the Compact 
Council and hope to enlist the support of the National Consortium for 
Justice Information and Statistics (SEARCH) and the National 
Association of Security Companies (NASCO) to fully understand how many 
states are actually performing these checks, the limitations within the 
state and any point of contact. I would be more than happy to share 
with the committee the results of that survey when completed. However, 
I think most will agree that one thing we do know is that there are 
approx. approximately 8 to 10 states that do not have any legal 
authority whatsoever to conduct national checks on security guards. 
Idaho is one of those states. Idaho does not have a state statute 
authorizing these checks. Last week, in a discussion with a 
representative from this state, I did learn that there has not been a 
demand by the industry within that state to enact legislation or 
implement the PSOEAA. The state representative in Idaho, welcomes the 
opportunity to work with members of the industry although admits that 
implementation presents a set of challenges.
Current Problems with PSOEAA Implementation
    While implementing the PSOEAA checks without a 92-544 statute may 
appear to be a simple solution, such a task has certain obstacles that 
would need to be overcome. First of all, the state would need to not 
only submit the fingerprints and receive the criminal history results 
but would also be required to perform the suitability determinations 
based on the federal criteria. The volume of those checks could be 
significant. Although a fee could be assessed for this purpose, the 
state would need to have state authority via legislation or executive 
order to assess the fee, receive the money, hire the necessary 
resources to perform the task of adjudicating the results, handle 
appeals and process approvals and denials. Even if the state chose to 
outsource some of these functions, the state cannot outsource something 
it is currently not authorized to do, so the infrastructure would still 
need to be in place for the state to take on the responsibility for 
these checks.
    If the state does not have the ability to participate based on the 
concerns previously mentioned, the state may ``opt out'' to enable a 
``participating state'' to do these checks for them. While this may 
also sound reasonable in theory, once again, it is a complex 
undertaking. A state that is performing the checks usually has a 
licensing or regulatory function with specified criteria used within 
that state for screening. Even though a fee for services is authorized, 
it would be very difficult for the state to justify requesting 
additional resources to accommodate other states, and to ask them to 
screen to the federal standard for these checks and their own standards 
for checks within their state.
    I can speak personally for the state of Florida in saying that we 
are continually being asked to scale down our budget and limit the 
hiring of additional resources. Even if we could collect a fee for that 
service, expanding our government to provide services outside our state 
would be questioned. We continue to be told to stick to our core 
missions and I am sure since you also represent the states that this is 
something you can certainly understand.
    How do we make this work?
    So you ask yourself, well what would work. The USAG was tasked in 
Section 6403 of Intelligence Reform Bill and Terrorism Prevention Act 
to conduct a study on the issue of background checks. The Compact 
Council was specifically mentioned in the law as a reference group for 
the topic. The Council posted notes to the Federal Register as comments 
and worked closely with USDOJ's Office of Legal Policy in the 
development of the final report. It is important to note that the 
report to Congress is very much aligned with the recommendations of 
compact council members. It is also very much aligned with the comments 
from SEARCH. The part of the report that may be specifically relevant 
to Congress is in Section V Recommendations for Standardizing Non-
Criminal Justice Access Authority.
Suggested Models for Consideration
    Let me share with you firsthand experience from a proven model that 
is referenced in the AG report in Section III, Examples of Programs 
Implementing Criminal History Check Authorities. In Florida, several 
years ago there was a similar situation concerning the ability to 
perform state and national checks on persons employed or volunteering 
around children, the elderly and the disabled. There are a number of 
agencies that fall under this category in Florida to not only include 
volunteer organizations such as Boys and Girls Club, churches, and 
universities, but large employers in our state such as Universal 
Studios, and Disney World. The dilemma was that no ``one'' agency in 
the state could take on the workload of screening for these entities 
and there was not ``one set of criteria'' that would be appropriate for 
all. The United Way was concerned about the impact on volunteerism and 
that persons with criminal offenses that would still make them suitable 
for some jobs could be ultimately screened out. For instance, an agency 
may want to allow someone with multiple driving violations including 
Driving While Intoxicated to volunteer in a facility with the elderly 
as long as they are not driving the patients but may not want someone 
with a history of fraud, with an elderly person who could be vulnerable 
to fraudulent scams. The solution, through an amendment to the 
Volunteers for Children's Act was to allow the qualified entity, with 
the presence of a waiver, to receive the criminal history information 
and make their own suitability determinations. The entities are subject 
to state audits to ensure that they are maintaining all security 
requirements in the maintenance and dissemination of the information. 
This program has been in place since 1999, and in 2006/2007 Florida 
conducted 144,693 criminal history checks using this model.
    Another model that is applicable to this situation is the Public 
Law 105-277 which was passed in 1998 allowing Nursing home facilities 
to receive national criminal history information from the state in the 
event that a state statute was not in place to provide for these 
checks. Three states take advantage of this law and in 2007 alone over 
27,000 checks were done under this statute.
    One more model that was recently enacted by Congress via the Adam 
Walsh Act is the ability for private schools to receive the results of 
criminal history information to make suitability determinations for 
persons they employ. Similar to the Private Security Guard Industry, 
private schools across the country were receiving varied assistance in 
obtaining criminal history checks for their employees. Some state laws 
only authorized criminal history checks for public schools and some 
included private schools but required them to fall under the state 
board of education for regulation. In states, where the state did not 
want to regulate private schools or where the private schools wanted 
separation from the state board there was little to no avenue for them 
to receive the information and do the right thing. When Congress passed 
the Adam Walsh Act in July 2006, you enabled private schools to 
directly receive national criminal history information if the provision 
was requested by the Chief Executive Officer of the state and the 
checks were fingerprint based. In the same act, Congress made this 
provision available to contracted entities of Child Welfare Agencies 
for the licensing of Foster and Adoptive parents.
    In each of the models, a group was defined as having a specialized 
need for persons in trusted positions to be background checked, there 
was no consistency nationwide, and the decision as to whether to 
conduct the checks was based on the states ability to provide resources 
to adjudicate the results and apply criteria for suitability. These 
models could be applied to the Private Security Guard Industry and 
would allow the states that wish to regulate the industry to continue 
doing so, but not hold hostage the companies in states where 
regulations do not exist. In Georgia, the state has indicated that it 
will continue to license armed guards and that if the records could be 
pushed back to the employing agency they would be willing to proceed 
with all security guards. Other states have indicated the same. In 
Florida, even though security guards are licensed by the state, many of 
the guard companies would like to receive the results of screening to 
determine if they would want to apply their own standards for persons 
they hire to ensure that they are appropriately placing persons in 
positions. Today, they must do a private company search of these 
records or a state only search of these records in order to accommodate 
that need.
Privacy Concerns
    The privacy issues surrounding this information should not deter 
you from taking this type of action for the following reasons:
     In at least 25 states, the states information is already 
available on the internet by a name based check.
     Private data companies compile criminal record information 
from courts, corrections and other databases from around the country 
and sell to their customers.
     At least, the information provided by the FBI is 
fingerprint based and limits the harm done from someone being 
mistakenly identified by name.
     Caveats, like those mentioned in the AG report could be 
put in place to protect privacy.
     Rap sheets CAN be read and we have examples at the state 
level of numerous organizations that are screening criminal history 
records today with minimum training, to say otherwise is a myth.
    If it is true that security guards do protect 85% of the nation's 
critical infrastructure, and we trust them with that tremendous 
responsibility then why wouldn't we trust them to receive the criminal 
history information to ensure that the right person is placed within 
these sensitive positions and allow public safety to take precedence.
Recommendations
    This recommendation is consistent with past congressional actions 
as previously mentioned and could be enhanced by placing minimum 
criteria in place that the agencies would need to adhere to.
    I urge you to do the following:
    Prior to passing legislation, ensure that you have received 
accurate information and in those states that are already regulating 
the industry and conducting these searches allow them to continue as 
appears to be recommended in this legislation.
    If legislation is enacted, strongly consider allowing the private 
security guard industry to receive the results of the criminal history 
information. If these individuals are truly guarding areas that are 
critical to our nation's domestic security, then do not tie their hands 
to enable them to employ the right person in these sensitive jobs. 
Despite what you may have been told, there are security guard companies 
that would like to police themselves and are willing to step up to the 
plate to take on this responsibility.
    In doing so you will:
     enable persons who currently cannot be checked to receive 
the screening, and
     enable more states to participate.
    The USAG report recommendation on access to criminal history 
records indicates that when a state agrees to participate in processing 
these checks and passing them down to the employer the state should be 
able to do so with certain protections in place. If the state opts out, 
then the employing entity should be able to go directly to the FBI. 
Critical Infrastructure is listed as one of the first priorities in 
determining who should be able to avail themselves of this service. 
Consider implementing the recommendations of the USAG report.
                                 ______
                                 
    Chairman Andrews. We would be eager to receive that 
information. Thank you.
    Ms. Uzzell. Thank you for letting me be here today. I 
appreciate it.
    Chairman Andrews. Our privilege.
    Mr. Clarke, welcome to the committee. Glad to have you with 
us.

 STATEMENT OF FLOYD CLARKE, MEMBER, BOARD OF MANAGERS, ALLIED 
                       SECURITY HOLDINGS

    Mr. Clarke. Thank you, Chairman Andrews and Ranking Member 
Kline and the rest of the committee.
    It is a pleasure and I appreciate the opportunity to appear 
before you today to offer some comments about H.R. 2703.
    As you mentioned, I am a member of the board of managers of 
Allied Security Holdings, the parent company of Allied Barton 
Security. And previously I spent 30 years in the FBI, leaving 
in January 1994 as the acting director. So I approach this 
issue with the benefit of the perspective from both the FBI and 
private sector.
    Allied Barton is the largest American-owned security 
services company. We have more than 52,000 security officers in 
over 100 offices and we service approximately 3,500 clients 
across the United States.
    Let me begin, Mr. Chairman, by commending you for your 
commitment to this issue over the years. As Congress recognized 
in the legislation that you were instrumental in helping to 
pass in 2004, there is a homeland security imperative for 
having professional, reliable and responsible security officers 
for the protection of people, facilities, institutions, and 
ensuring that these officers are thoroughly screened and 
trained.
    In an effort to achieve this objective, Congress enacted 
the Private Security Officers Employment Act to allow private 
security officer companies to submit requests through the 
states to screen employees against the FBI's criminal history 
records. Unfortunately, for a variety of reasons, states have 
generally not exercised the authority that they have been given 
and employers still cannot regularly screen perspective 
employees against the national database.
    And I want to again commend you, Mr. Chairman, for 
recognizing the need to strengthen this earlier legislation.
    Private security officers, as you mentioned, provide a 
primary line of defense for much of our country, securing 
countless lives, tens of thousands of important facilities from 
coast to coast. The threat of additional terrorists acts 
requires the cooperation between the public and the private 
sectors.
    The private sector, as you mentioned, controls 85 percent 
of the critical infrastructure in this nation, and unless a 
terrorist target is a military or other secure government 
facility, the first first responders most likely will be 
civilians. Those civilians will include private security 
guards. We want to do all that we reasonably can to ensure that 
the officers that we hire are trustworthy and not likely to 
commit criminal acts or aide or support terrorists.
    At a minimum, this requires that our company have a 
reliable and timely way of learning about any serious criminal 
history of our applicants.
    Congress directed the attorney general to examine the issue 
related to non-law enforcement access to federal criminal 
history records and the AG concluded that reliable criminal 
history background check cannot be accomplished without timely 
access to the records of the FBI.
    Without access to the federal records, the only records 
available to an employee are those in the states, where the 
records are typically kept in the courthouse in each county. 
Since there is no practical way to check all 3,000 clerks of 
court around the country for every employee, employers will 
usually only request a check in the counties in which the 
applicant says that they have recently lived or worked. This 
leaves the employer blind to any criminal history in states for 
which the applicant failed to disclose contacts.
    Congress acted in 2004 to provide employers access to that 
federal database. Unfortunately, in doing so Congress required 
that the employers always go through the state identification 
bureaus in order to get that access. In other words, we must 
submit the employee information to the state bureau, which then 
decides whether to forward the request to the federal level.
    An employer in a state that cannot or chooses not to 
provide timely background check results that incorporate both 
state and FBI data should be able to make requests for criminal 
history records to the FBI either directly or through an entity 
designated by the attorney general.
    We strongly support this recommendation and applaud you, 
Mr. Chairman, for incorporating this provision in H.R. 2703.
    I understand that there may be concerns that this 
legislation bypasses states. As I read it, however, it clearly 
requires employers to go through the states in every instance 
where the states are willing and able to respond. The only 
instance in which employers can make a request other than 
through the state is where the state has chosen not to 
establish a mechanism for getting prompt federal records checks 
accomplished.
    We fully support efforts to get more states to adopt such 
mechanisms. However, that will take time, time during which we 
will continue to have a dangerous gap in the screening.
    H.R. 2703 does not preclude continuing efforts to work with 
the states and ensures that as those states come into 
compliance with the AG's standards, employers will be required 
to go through them for their record checks.
    Our experience indicates that the protections afforded to 
employees under Congress, which Congress included in 2004, are 
appropriate and that the legislation that is being suggested 
and offered here builds upon those and even strengthens those.
    I would be more than happy to answer any questions that you 
might have.
    [The statement of Mr. Clarke follows:]

Prepared Statement of Floyd I. Clarke, Member of the Board of Managers, 
                        Allied Security Holdings

    Chairman Andrews, Ranking Member McKeon, and Members of the 
Subcommittee, thank you for the opportunity to testify today about HR 
2703, the Private Security Officers Employment Authorization Act of 
2007 and the experience of AlliedBarton Security Services in attempting 
to use the criminal history database of the Federal Bureau of 
Investigation (FBI) to help screen applicants for these positions of 
trust,
    I am the Vice President for Corporate Compliance of MacAndrews & 
Forbes Holdings, Inc. and a Member of the Board of Managers for Allied 
Security Holdings LLC, the parent company of AlliedBarton Security 
Services. Previously, I spent 30 years working at the Federal Bureau of 
Investigation, ending in January 1994 as Acting Director of the Bureau. 
Thus, I approach this issue with the benefit of the perspective of both 
the FBI and the private sector.
    AlliedBarton Security Services, headquartered in King of Prussia, 
Pennsylvania, is the largest American-owned security officer services 
company. Established in 1957, AlliedBarton is a trusted leader with 
proven expertise in providing highly trained security officers to a 
number of markets, including manufacturing and industrial, financial 
institutions, colleges and universities, commercial real estate, 
government services, healthcare, residential communities, and shopping 
malls and other retail facilities. AlliedBarton has more than 52,000 
security officers and over 100 offices located across the United States 
from which we help protect the facilities, employees, and customers of 
our approximately 3,500 clients.
    Mr. Chairman, let me begin by commending you for your commitment to 
this issue over the years. As Congress recognized in legislation that 
you were instrumental in helping to pass in 2004, there is a homeland 
security imperative for having ``professional, reliable, and 
responsible security officers for the protection of people, facilities, 
and institutions'' and ensuring that these private security officers 
are ``thoroughly screened and trained.'' \1\
    In an effort to achieve this objective, as part of the Intelligence 
Reform and Terrorism Prevention Act of 2004, Congress enacted the 
Private Security Officer Employment Authorization Act (PSOEAA) to allow 
Allied-Barton and other private security officer firms to submit 
requests through the states to screen employees\2\ against the FBI's 
criminal history records. Unfortunately, for a variety of reasons, 
states have generally not exercised this authority and private security 
officer employers still cannot regularly screen prospective employees 
against the national database. I want to again commend you, Mr. 
Chairman, for recognizing the need to strengthen that earlier 
legislation.
    I know from my experience at the FBI how important it is to obtain 
timely criminal history record checks. In my years with AlliedBarton, I 
have seen how important it is in the private security officer context 
as well. My testimony today briefly discusses why this access is so 
important, how it has worked--and not worked--for AlliedBarton over the 
last two years, and why the changes made by HR 2703 are important for 
both applicants and employers.
Reliable Private Security Officers are Crucial to our Nation's Security
    Private security officers provide a primary line of defense for 
much of our country, securing countless lives and tens of thousands of 
important and valuable facilities from coast to coast. The Intelligence 
Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458) found 
that ``the threat of additional terrorist attacks requires cooperation 
between public and private sectors and demands professional, reliable, 
and responsible security officers for the protection of people, 
facilities, and institutions.'' Noting that the private sector controls 
85% of the critical infrastructure in the nation, the 9/11 Commission 
concluded that, ``unless a terrorist's target is a military or other 
secure government facility, the `first' first responders will almost 
certainly be civilians.'' \3\
    Those civilians are likely to include private security guards, 
counted on as the prime protectors of homes (apartment buildings, 
dormitories, and private communities), offices, financial institutions, 
factories, public sector facilities, hospitals and other critical 
elements of the infrastructure of our nation. For the safety of the 
people at these locations and the facilities involved, the companies 
employing these private security officers want to do all that we 
reasonably can to ensure that the officers we hire are trustworthy and 
not likely to commit violence or, at worst, aid or support terrorists. 
At a minimum, this requires that our companies have a reliable and 
timely way of learning about any serious criminal history of our 
applicants and employees.
Reliable Criminal History Checks Require Access to FBI-Maintained 
        Records
    When Congress enacted the PSOEAA, it also directed the Attorney 
General to examine the issues related to non-law enforcement access to 
federal criminal history records and report back. The Attorney 
General's Report\4\ concluded that a comprehensive and reliable 
criminal history background check cannot be accomplished without timely 
access to the records of the Criminal Justice Information Services 
Division of the Federal Bureau of Investigation. We agree. Let me 
explain why this is so important.
    Without access to federal records, the only records available to an 
employer are those in the states and their political subdivisions, 
where the records are typically kept at the courthouse in each county. 
Since there is no practical way to check all 3,000 clerks of court 
around the country for every employee, employers usually will request a 
record check in the counties in which the applicant says they have 
recently lived or worked. This leaves the employer blind to any 
criminal history records in states for which the applicant failed to 
disclose contacts. How can employers rely on a system to weed out 
untrustworthy or dangerous applicants when that process necessarily 
depends on the honesty and forthright nature of every applicant?
    There are commercial databases that aggregate criminal history 
information from multiple states but, as the AG Report found, these are 
not truly national in scope because not all states, courts, or agencies 
make their records available to such compilers. Moreover, these 
databases are only updated occasionally and, thus, may lack current 
data. These commercial databases, therefore, are not adequate 
substitutes for screening against the FBI-maintained database.
    Congress acted in 2004 to provide private security officer 
employers with access to that federal database. Unfortunately, in doing 
so, Congress required that the employers always go through the state 
identification bureaus in order to get that access. In other words, we 
must submit the employee information to the state bureau, which then 
decides whether to forward the request to the federal level.
    We work closely with state regulators of private security officers 
and, for the most part, they fully and competently fulfill their state 
role. However, the states with which we work have not prioritized the 
next step of seeking an FBI records check, despite the 2004 statute 
permitting them to do so. In addition, several states have no 
background check process at all. Thus, without another way to access 
the FBI-maintained database, AlliedBarton and other security officer 
employers have no way to verify applicants' backgrounds in these 
states.
    It is equally important that record checks be completed in a timely 
manner. Significant delays in getting responses to criminal history 
record requests are unfair to employers and applicants, and present 
potential security risks. Hiring needs are typically time-sensitive, 
which means either passing over the applicant because the records are 
not in, or, where permitted, placing a private security officer 
applicant ``on the job'' pending the results of a state background 
check--leaving potentially unreliable and dangerous persons as the 
protectors of loved ones and valuable sites for weeks.
    The Attorney General's Report found that the processing time for 
states, from the date of the fingerprint capture to the date of 
submission to the FBI ranged up to 42 days.\5\ This is consistent with 
AlliedBarton's experience over the last 2 years under the current 
statute.
Recommendations: Protecting Our Nation
    To address these problems, the AG's Report recommends that private 
sector employers be able to screen job applicants against the FBI's 
criminal history records, with the states serving as employers' primary 
access point for criminal background checks only if they can meet 
standards set by the Attorney General. The Report recommends, ``In 
order to participate, states must meet standards specified by the 
Attorney General, within parameters set by statute, for the scope of 
access and the methods and time frames for providing access and 
responses for these checks.'' \6\ Specifically, the Attorney General 
concluded, ``A participating state or the FBI should be required to 
respond to an enrolled employer, entity, or consumer reporting agency 
within three business days of the submission of the fingerprints.'' \7\
    Importantly, this means that an employer in a state that cannot, or 
chooses not to, provide timely background check results that 
incorporate both state and FBI data should be able to make requests to 
the FBI, either directly or through an entity designated by the 
Attorney General, for criminal history records. The Attorney General's 
Report stated it this way: ``Access to FBI-maintained criminal history 
records should be available to employers when states do not opt to 
participate, either because they lack the authority, the resources, or 
infrastructure (such as system capacity) to process such checks, or 
because the access they can offer is limited in scope or does not meet 
the national standards set for this system.'' \8\
    Based on our experience, we strongly support this recommendation 
and applaud the Chairman for incorporating it in HR 2703. Ensuring 
timely and accurate record checks is in the best interest of both 
employers and employees.
    The best way to ensure accuracy is to combine federal and state 
records, which the proposed legislation authorizes. There are sound 
reasons for employers seeking comprehensive criminal histories to also 
check state repositories. The Attorney General's Report noted that the 
``rationale for requiring the submission of fingerprints through a 
state record repository is based on the fact that the FBI-maintained 
records are not as complete as the records maintained at the state 
level.'' \9\ The FBI's records also have more limited information 
regarding disposition of arrests, with only 50 percent of its arrest 
records containing final dispositions, compared to the states that 
range from 70 to 80 percent.\10\ HR 2703 provides a process for 
ensuring that screening is not based on incomplete records by requiring 
that when records are incomplete, the government shall provide notice 
of any state(s) in which such records may be completed or verified.
    Thus, even if employers are permitted to submit requests without 
first going through the state, they will use the federal response as an 
indicator of which states contain records regarding the employee, and 
then they will check the records in those states. This process, 
however, will avoid the delays involved in having to go through the 
states just to get the FBI response.
    Mr. Chairman, I understand there may be concerns that this 
legislation by-passes the states. As I read it, however, it clearly 
requires employers to go through the states in every instance where the 
states are willing and able to respond. The only instance in which 
employers can make a request other than through the state is where the 
state has chosen not to establish a mechanism for getting prompt 
federal records checks accomplished. AlliedBarton fully supports 
efforts to get more states to adopt such mechanisms. However, that will 
take time; time during which we will continue to have a dangerous gap 
in screening. HR 2703 does not preclude continuing efforts to work with 
the states and ensures that, as those states come into compliance with 
AG standards, employers will be required to go through them for the 
record checks.
Guaranteeing Employee Protections
    AlliedBarton's experience indicates that the protections afforded 
to employees that Congress wisely included in the Private Security 
Officer Employment Authorization Act have worked well to protect 
important privacy rights, ensure the fairness of the process, and 
support essential policies to promote appropriate re-entry of ex-
offenders. These protections are consistent with the recommendations in 
the Attorney General's Report and include:
     Written, informed consent of the employee
     The opportunity for the employee to review the information 
received
     Specific qualifying crimes, where states do not have their 
own standards
     Criminal penalties for misuse of the criminal history 
information
    In addition, Allied supports the additional safeguards in HR 2703 
to protect applicant rights and improve accuracy of NCIC records. HR 
2703 adds a new section requiring the Attorney General to ensure that 
there is a process whereby an employee subject to a request for a 
National Crime Information Center criminal history records check 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 bill also imposes strict record management requirements to 
protect confidentiality. Under these amendments, employers would be 
required ensure that the results of the records search are maintained 
confidentially and are not misused or disseminated to any person not 
involved in the employment decision. It also requires that the results 
of the search request are destroyed with one year unless a claim is 
pending.
    Moreover, HR 2703 limits reporting to convictions only. It deletes 
the current language in the PSOEAA that allows employers to consider 
arrests for which there has been no resolution for 365 days. In 
addition, this version provides greater specificity in offenses, 
ensuring their direct relevance to the position of private security 
officer, replacing current broad language that includes any ``offense 
involving dishonesty or a false statement.''
Conclusion
    In conclusion, I want to thank you again for the opportunity to 
testify today in support of HR 2703. It provides essential improvements 
to the PSOEAA and I'm confident that these improvements in the 
screening of private security officers--specifically by insuring 
employers' timely access to FBI criminal records while preserving 
employee rights--will make our nation safer.
                                endnotes
    \1\ P.L. 108-458, section 6402.
    \2\ References to ``employees'' in this statement should be 
understood to also include applicants.
    \3\ The National Commission on Terrorist Attacks on the United 
States (``9/11 Commission''), The 9/11 Commission Report: Final Report 
of the National Commission on Terrorist Attacks on the United States, 
397-98 (July 2004).
    \4\ United States Department of Justice, The Attorney General's 
Report on Criminal History Background Checks (June 2006).
    \5\ Id at 22.
    \6\ Id at 87.
    \7\ Id at 94.
    \8\ Id at 88.
    \9\ Id at 27.
    \10\ Id.
                                 ______
                                 
    Chairman Andrews. Well, thank you, Mr. Clarke.
    And thank each of the witnesses for very edifying and 
instructive testimony.
    We do have issues and concerns about employee privacy 
issues, and I would ask unanimous consent at this time to have 
letters entered into the record from the National Employment 
Law Project and the Service Employees International Union, so 
that we may have their views, which will clearly be taken into 
consideration if this process goes on, without objection.
    [The statement of the National Employment Law Project 
follows:]






                                ------                                

    [The statement of the Service Employees International Union 
follows:]




                                ------                                

    Chairman Andrews. Mr. Clarke, I think that you answered a 
question I was about to ask, but I want you to reiterate it. 
Mr. Kennedy speaks of his concerns about the federalization of 
the process of hiring private security guards, and the rule in 
our country is that we don't have federal rules--federal rules 
are the exception, not the rule. And it take exceptional 
circumstances to have federal regulation in order to solve a 
perceived problem.
    What are the exceptional circumstances here that in your 
view justifies a greater federal role in this process?
    Mr. Clarke. Well, it is a varied rationale, Mr. Chairman.
    First of all, that there is inconsistency within which the 
states apply these standards. As Mr. Kennedy mentioned, there 
are 40 states that have some type of process, but that process 
varies from record checks to nothing more than a licensing 
process that does not include record checks.
    So when we were considering what is at risk and what the 
American public expects when they go to a shopping mall or they 
have their students enroll in a university or we have critical 
petrochemical or pharmaceutical industries where private 
security people are employed, that there should be some 
national, some basic threshold that governs whether or not we 
put people in these positions of trust.
    So in the areas where states have regulations, we work with 
those states and use those as the standards. It is only in the 
places where states don't do the record checks or don't have 
standards that we need to have some additional help to govern 
what those standards should be.
    Chairman Andrews. Mr. Ricci, is it my understanding that of 
the nine companies that are a part of the association, you 
represent that eight of them essentially agree with Mr. 
Clarke's position? Is that correct?
    Mr. Ricci. NASCO did not vote particularly on the H.R. 
2703. What we did is, we passed a resolution by majority in the 
fall that look at the issues associated with the bill and 
really supporting the idea of creating a third party entity as 
approved by DOJ. And I am looking at things such as 
disqualifying offenses and mandatory turnaround times and 
really working with your office and with other legislators to 
handle those issues.
    So there were some votes done, but we usually have 17 
members and they were not involved in that.
    Chairman Andrews. I understand.
    Mr. Kennedy, I want to ask you a question, and I very much 
appreciate the constructive spirit of your testimony.
    Let us take the scenario of hazardous medical waste, which 
is generated a lot of different places around the country, 
hospitals, research labs and whatnot. And almost always the 
institutions that generate this waste use private security 
guards to guard their facilities.
    The theft of a fairly small amount of hazardous medical 
waste could make a dirty bomb. It is a very real and present 
concern.
    In a state that has opted not to be part of the federal 
system and that has opted not to require security companies to 
do background checks on their security guards, why shouldn't we 
pass a federal law that requires that hospital or that medical 
institution to have background checks of the security guards 
that are guarding that hazardous medical waste? Why shouldn't 
we do that?
    Mr. Kennedy. Mr. Chairman, that is an extremely complex 
issue, as I am sure you understand.
    Chairman Andrews. Yes.
    Mr. Kennedy. There are some states that have been long 
involved in administration of their own internal processes with 
regard to licensing, et cetera.
    Chairman Andrews. Right.
    Mr. Kennedy. It is true, of course, that we have 10 states 
that do not currently have a licensing procedure for private 
security individuals.
    Our company and many others in our industry--however, not 
unanimously--conduct extremely thorough background 
investigations on the individuals being employed. We believe at 
our company we have the most comprehensive system to do that.
    Mr. Clarke mentioned that there are 3,000 counties in the 
United States and that there is no current system to have a 
check of all 3,000 counties to determine whether or not a 
criminal record may exist on an individual throughout the 
United States.
    Your bill would cure that problem, but it would impose 
federalization of those standards on states, all of the states, 
all 50.
    Chairman Andrews. But how about the specific question I 
asked. Is it your answer that we shouldn't impose the 
requirement to get that background check done because it is too 
complicated? Because it can't be done? What is the answer? Is 
your answer yes or no?
    Mr. Kennedy. My answer is no, we should not, because it 
imposes on the states' rights.
    Chairman Andrews. Okay.
    Mr. Kennedy. In England, for example, they have a statute 
that you are talking about. It is a very----
    Chairman Andrews. England is not a perfect world in any 
sense of----
    Mr. Kennedy. No, it isn't. But they have a very----
    Chairman Andrews. Look, what we could tell you to do here 
is to balance these concerns. And clearly, as I said a few 
minutes ago, the general rule in American law is that states 
decide things under the 10th amendment. The exception is that 
we do.
    I am more inclined to agree with Mr. Clarke, that this is 
one of those exceptional circumstances because of the 
relationship between guarding the critical infrastructure. But 
certainly we do understand that cost, the complexity, the other 
balancing issues, and we all take them into consideration.
    Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you, gentlemen and lady, for your testimony, it is 
excellent, as we try to make sure we are approaching what 
appears to be a shortfall in the 2004 law in a reasonable way.
    Mr. de Bernardo, you seem in your testimony, written and 
oral here, to support mandated background checks for security 
personnel. Am I right in that reading?
    Mr. de Bernardo. You are correct, yes.
    Mr. Kline. So let us explore that a little bit here to make 
sure we don't overreach.
    In the examples that the chairman has given today, I don't 
think there is any question that we want those security guards 
to have a pretty thorough background check, armed guards at 
nuclear power plants, perhaps people where there is hazardous 
waste, whether it is nuclear or medical or something.
    But the term ``security guard'' is pretty broad. There are 
people involved in security that are in parking lots, maybe 
they are making sure that thinks aren't pilfered from dressing 
rooms and so forth. We are talking about a lot of people here.
    Is it your testimony and your view that all of those people 
should have mandated background checks? Every employer who 
hires anybody who could be involved in that security business 
would be required to have a background investigation?
    Mr. de Bernardo. Well, Mr. Kline, we would find that 
acceptable.
    Normally, the CELE, the employer community in general, is 
not going to be in favor of mandates, as you well know. But, 
you know, there are some issues that are so important and as a 
practical matter, two things.
    Number one, I think the overwhelming majority of employers 
are doing criminal background checks for people who are in 
security positions. And, secondly, if they are not, they 
should, you know, given the potential liabilities. In our 
litigious society, one of the things that is discussed in our 
testimony, is the fact that negligent hiring, negligent 
retention lawsuits, there has been explosive growth in this 
regard.
    I think that it is unwise for employers to hire people in 
security positions, or any positions where there are at-risk 
populations that would be affected by having a criminal in that 
position.
    One of the long sections of our testimony discusses 
criminal recidivism. There is absolutely no question that 
someone who has a criminal conviction in their background, no 
matter when it was, is more likely to commit a crime again than 
a normal citizen. Those getting out of prison are 53 times--no 
matter what their conviction was for--are 53 times more likely 
to commit a homicide than a normal American citizen.
    In fact, the recidivism rate, unfortunately, it is a 
tragedy in America, is as high as 80 percent. Eighty percent of 
those people who have had criminal convictions in the past, as 
many as 80 percent, are likely to be convicted of a crime 
again.
    Mr. Kline. You are not arguing, though, if I may interrupt, 
you are not arguing for mandated background checks on every 
employee? Is that right? Or are you? Somebody who works a cash 
register----
    Mr. de Bernardo. No, absolutely not.
    Mr. Kline. There is liability there. You know, greeters.
    Mr. de Bernardo. I think it should be up to the employer, 
okay, in the----
    Mr. Kline. That is what I am getting at. If it is going to 
be up to the employer, who is determining who gets the 
background investigation? Is this somebody who is responsible 
for making sure that things aren't taken from dressing rooms or 
is this somebody who is guarding nuclear waste? Or does it 
matter? Again, in your view, does it matter?
    Mr. de Bernardo. I think that is a sort of simplistic 
approach. You----
    Mr. Kline. I am not a lawyer. I am kind of a simplistic 
guy, Mr. de Bernardo, so that happens.
    Mr. de Bernardo. No offense intended.
    We are not talking about people that are guarding 
restrooms. We are talking about people who----
    Mr. Kline. I am trying to get at, should we be careful 
about how we define security guard in this legislation. You 
know, it is our job to do a balance here, as the chairman says, 
and to make sure that we are not overreaching and we are not 
creating something that is going to turn out to be very, very 
difficult for employers to enforce. So I am just asking, should 
we pull in the definition of security guard, or not?
    Mr. de Bernardo. If there is a sensible definition of 
security guards that makes sense, then we would favor that, 
sure.
    Mr. Kline. Thank you.
    I yield back.
    Chairman Andrews. Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman.
    Mr. Ricci, in your testimony you were citing findings from 
a 2004 review of records for applicants that applied for guard 
positions in my home state of Illinois. The review found that 
the FBI criminal history checks provided serious criminal 
information four times more frequently than the state-wide 
check.
    I wonder, what information could be overlooked when private 
security employers have access to state criminal history 
records only and what limitations the state checks in providing 
a complete record of applicants criminal history are involved 
here?
    Mr. Ricci. I think you are referring to, typically, when a 
state licenses security, much like Illinois does, they check 
the state record. So they will check any criminal activity that 
may be in the state record depositories as well as looking at 
where an applicant may say they lived within that state.
    But the information that is lacking is anything that may 
have happened in another state. It could be a neighboring 
state. It could be a state that they used to live in. It could 
be a state they vacation in, perhaps. Or it could be a federal 
offense. And none of those would be reported through the state 
process.
    So when you refer to that Illinois study, what it said was 
when they started to implement these checks, they started to 
uncover people that had cleared through the state check but 
were getting results from the federal check, and I think that 
is really important.
    I cited California as well, that since that time those 
percentages of security officers that have been denied based on 
criminal activity have gone done, because some of it is 
deterrent, if they know the federal checks are going to be done 
in those particular states, as they are also done in the state 
of New Jersey and the state of Minnesota, in a different form. 
They all check federal criminal records checks, and so there is 
a form of deterrence there as well.
    Mr. Hare. And just for the panel, and anybody is welcome to 
respond to this, a lot of you acknowledged that states face 
considerable challenges in efforts to implement timely 
processing of criminal background checks, such as lack of 
financial resources, adequate staff, combined with large 
volumes of request.
    I am wondering, A, has this interfered with the compliance 
of the Private Security Officer Employment Authorization Act? 
And/or how can the federal government ease the burden of the 
states?
    Ms. Uzzell. From the states that I have spoken to, as I 
said in my testimony, the suitability criteria and making that 
determination and adjudicating the results at the state 
repository, if you don't mind my expression, is the gorilla in 
the middle of the room. It is difficult for them to have the 
resources, not only--they all process the fingerprint cards. 
That is their job. They will send the information up to the FBI 
and get the results back. And then the office will get--40 
percent of the records in 2009 will be decentralized at the 
state. They will no longer be kept at the FBI, because that is 
the rule of the compact.
    But I think the other piece to this is that when they get 
the records back, it is not really the state repository's role 
to review the records, locate missing dispositions and suitable 
screen, handle appeals and process that function. So if the 
records were allowed to be passed back to the entity that was 
making the decision, closest to the decision-making authority, 
then I think the states would more likely say, yes, more states 
that do not regulate, and you pass the records back, we all do 
these checks.
    We all get the records through the state repository first 
and get a better check, and then we all give the records back 
to the employment agency so they can screen under the criteria 
that you, as Congress, determine, with privacy protections in 
place.
    So I do truly believe that if that was put in as part of 
this legislation, that I think it would be a help to the states 
to actually do it.
    Mr. Hare. Anybody else?
    Mr. Kennedy. Yes, sir.
    In the past, when the FBI was trying to modernize the 
criminal history system and go from the card, the fingerprint, 
10-point print card, submitting that hard card to the FBI and 
switching over to an electronic method, many, many states chose 
to do that immediately because it was more efficient, they had 
the resources to do it.
    But there were a number of states--in fact, I would want to 
suggest that it might be the same 10 states we are talking 
about here, who chose not to do that initially. There were 
statutes enacted, enabling a federal funding process for states 
that chose to make such an application in order to build and 
construct that capability within their state system.
    I would suggest something along those lines might be 
attractive to the states. Again, that suitability issue still 
is the big gorilla in the room, but at least that would 
possibly encourage those states who do not do any regulatory 
processes on security guard personnel, they might be encouraged 
to do so.
    Mr. Hare. Thank you.
    Mr. Ricci?
    Mr. Ricci. As we mentioned in our testimony, we support the 
creation of a third-party entity to assist with both the 
transaction of the electronic fingerprint, but also in the 
suitability screening. We believe that a third-party agency 
could help in the screening.
    Part of the complication there, as we mentioned, there are 
40-plus states that have some type of licensing or registration 
criteria. Those disqualifying offenses vary by state. So it 
would be incumbent upon this third-party channeler to be 
involved in that process of looking through those criteria and 
assisting with the screening and suitability studies.
    Mr. Hare. Thank you very much.
    I yield back, Mr. Chairman.
    Chairman Andrews. I thank the gentleman for yielding.
    Mr. Kline, do you have any concluding comments for today?
    Mr. Kline. Thank you, Mr. Chairman.
    I just want to say thanks. Excellent two panels, real 
expertise here. It is always a pleasure when we have a panel of 
witnesses like this as we are really trying to dig into the 
bottom and make sure we are producing good law here. So thanks 
to all of you very much.
    And thanks to you, Mr. Chairman.
    Chairman Andrews. Thank you.
    I would like to associate myself with Mr. Kline's remarks. 
This was an excellent panel, as was Mr. Campbell's testimony in 
the first panel.
    Our objective is to learn more about this issue and write a 
good law, should one be necessary. And is usually the case, an 
excellent panel raises more questions than it answers, which is 
good for us.
    We are going to call upon each of the six of you that 
testified today for further input.
    Here is where I would like to see us go, to go back to my 
hypothetical scenario of the person guarding the hazardous 
medical waste. I would like to be sure that he or she has 
passed a background check, that the person is not a felon or a 
terrorist. I would like to be 100 percent sure that is the 
case, to the extent that we can be.
    I would also like to be sure that we are sure that that 
record is about that person, that there wasn't a mistaken 
record that unfairly deprives someone of a job or of an 
employment opportunity because the record was wrong. I would 
also like to be sure that the person holding that background 
check information is under very strict legal requirements not 
to share it with someone unlawfully or unfairly. I would like 
to be sure that employers are given meaningful and practical 
ways of accessing this information that are not unduly costly. 
I would like to be sure that states are given similar 
flexibility and reasonableness as well.
    So all of this is easier said than done, but I think that 
you have given us a roadmap to answer those questions and get 
this done.
    Look, one of the many lessons that I learned from 9/11 is 
that we have an adaptive enemy who is looking for our 
vulnerabilities, and you know we focused on our vulnerability 
after we have been attacked. And we spent a lot of time on the 
airline industry in this Congress since then, as we well should 
have.
    But I suspect that we are dealing with a terrorist enemy 
that is spending time in areas that we are not spending time 
in. And I do think it is incumbent upon all aspects of our 
national governance to think that through. Not in an 
environment of paranoia, but in a careful, methodical way that 
gets several steps ahead of those who would do us harm.
    I am glad we live in a country where 85 percent of the 
critical infrastructure is guarded by private concerns. I don't 
want to live in a state economy where the government owns and 
controls everything of any value. I am glad that we live in 
such a country. But I do acknowledge that in such a system, 
because we have grown up in peace in this country, the idea 
that we would have this kind of organized attack on our soil 
was incomprehensible to us just a few years ago. The fact that 
we have a patchwork quilt of laws, that we clearly have gaps in 
our system, I think imposes upon us to take a rational, careful 
approach to fixing the problem.
    Ms. Uzzell, I would compliment your colleagues in 
particular for the work you are doing in the states on this 
issue. And by no means do I mean today's hearing to suggest 
that we think the states have failed. That is not true at all. 
A more accurate statement is we want every state to hit the 
level of success that the best states have hit. We want every 
private security company to hit the level of success that the 
representatives of the two companies here have hit and I think 
the association has largely hit.
    I just want to make one final comment, that this is 
obviously not a hearing getting a huge amount of press 
attention. I am glad. And the reason I say that is that I 
assure you, if, God forbid, we had a terrorist attack that 
could trace its roots to stolen medical waste that made a dirty 
bomb and that the material was stolen because we had 
coconspirators working on the inside as private security 
guards, we would fill the room. I never want the room to be 
filled. I want us to think ahead, to use the most intelligent, 
legal methods available to us to prevent that from ever 
happening.
    So you have made an excellent contribution to this today, 
each of the six of you. We appreciate that.
    I now want to read my little script here, that says, ``As 
previously ordered, members will have 7 days to submit 
additional materials for the hearing record.'' That also 
includes witnesses, should you choose to do so. And any member 
who wishes to submit follow-up questions in writing to the 
witnesses should coordinate with the majority staff within 7 
days.
    With that said and without objection, the hearing is 
adjourned.
    [Follow-up comments from Mr. Kennedy follow:]
    
    
    
    
    
    
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    [Whereupon, at 11:48 a.m., the subcommittee was adjourned.]

                                 
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