[Congressional Record Volume 149, Number 53 (Wednesday, April 2, 2003)]
[Senate]
[Pages S4707-S4708]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEVIN (for himself, Mr. Alexander, Mr. Lieberman, Mr. 
        McConnell, and Mr. Schumer):
  S. 769. A bill to permit reviews of criminal records of applicants 
for private security officer employment; to the Committee on the 
Judiciary.
  Mr. LEVIN. Mr. President, today I am joined by Senators Alexander, 
Lieberman, McConnell and Schumer in introducing the Private Security 
Officer Employment Authorization Act of 2003, a bill that would provide 
private security firms an opportunity to have national criminal history 
information searches undertaken to determine whether or not employees 
or applicants for employment pose a threat to the facilities and 
persons they are supposed to protect. There would be no expense to the 
government and the searches would require the consent of the employee 
or applicant for employment.
  Large numbers of critical non-governmental facilities from power 
plants to schools to hospitals are protected by private security firms 
and their civilian security officers. Keeping these facilities secure 
from terrorism or other forms of violent attack is critical to our 
national security. Yet currently most private security employers cannot 
request timely national criminal background check information on the 
very people they need to hire to protect these key facilities. This 
legislation seeks to correct that. This bill would authorize private 
security firms to request Federal background checks on current or 
prospective employees through the appropriate state agencies, thereby 
permitting relevant criminal history information to be considered in 
the licensing and employment of private security officers.
  The Criminal Justice Information Services Division of the FBI 
maintains complete criminal history records for both Federal and State 
crimes on individuals with criminal records in the United States. 
Searches are most effectively conducted using fingerprints to ensure 
efficiency and accuracy. We have already passed legislation 
specifically permitting other industries--for instance, the banking, 
nursing home, and child care industries--to check their prospective 
employees against the FBI's comprehensive records. Many of the reasons 
that supported passage of those laws, particularly the desire to ensure 
that those who provide certain important services have a background 
commensurate with their responsibilities, support passage of this bill 
as well.
  This legislation will enhance our Nation's security. As an adjunct to 
our Nation's law enforcement officers, private security guards are 
responsible for the protection of numerous critical components of our 
Nation's infrastructure, including power generation facilities, 
hazardous materials manufacturing facilities, water supply and delivery 
facilities, oil and gas refineries, and food processing plants. The 
approximately 13,000 private security companies in the United States 
employ about 1.5 million persons nationwide. Given the critical nature 
of the facilities private security officers are hired to protect, it is 
imperative that we provide sufficient access to information that might 
disclose who is unsuitable for protecting these resources.
  Currently we do not. Relying upon a Federal bill passed in the early 
1970's, 37 states and the District of Columbia have passed legislation 
authorizing State agencies to request both State and Federal criminal 
history record searches. Despite this authorization, security firms 
report that searches of both State and Federal databases for private 
security officers are the exception rather than the rule. That is 
because only 20 States plus the District of Columbia regularly access 
the Federal database for private security officers, and only two--
California and Illinois--do so in a way that ensures a timely response. 
In many jurisdictions with authorizing statutes, reviews of the Federal 
database are conducted sporadically, if at all. Indeed, in 
approximately 17 of the 37 States with authorizing statutes, typically 
only State databases are searched for private security officers. An 
additional 13 States have not even passed legislation authorizing any 
form of Federal criminal background check. What that means is that in 
approximately 30 States neither the State agencies nor the private 
security employers typically have any access to any Federal criminal 
database information. In these 30 States, an employment applicant in 
one State could have a serious criminal conviction in another State and 
still be permitted to perform sensitive security work. The state 
reviewing the applicant would have no idea a conviction in another 
State existed without access to the Federal database.
  Further, even in those few States that actually conduct Federal 
records searches, the Federal searches conducted on new employees often 
take 90 to 120 days, if not longer. While checks are pending, security 
guards frequently are provided temporary licenses. This 90 to 120 day 
period is more than enough time for a guard with a temporary license to 
perpetrate dangerous acts. In light of our urgent need to strengthen 
the security of our homeland, this lack of timely access to criminal 
history information is unacceptable. An article that appeared earlier 
this year in USA Today entitled ``Private Security Guards Are 
Homeland's Weak Link'' got it right when it said, ``more often than 
not, private security guards who protect millions of lives and billions 
of dollars in real estate offer a false sense of security.'' We need to 
act in order to make it easier for States and employers to gain timely 
access to this crucial criminal history information.
  This bill strikes the appropriate balance between the interests of 
all parties involved.
  First, the bill permits private security employers to request a 
prompt search of the FBI criminal history database for prospective or 
existing employees. Requests must be made by the employers through 
their state's identification bureau or similar state agency designated 
by the Attorney General. Employers will not be granted direct access to 
the FBI records. Instead, states will serve as intermediaries between 
employers and the FBI to: 1. ensure that employment suitability 
determinations are made pursuant to applicable State law; 2. prevent 
disclosure of the raw FBI criminal history information to the employers 
and the public; and 3. minimize the FBI's administrative burden of 
having to respond to background check requests from countless different 
sources. The program will not cost the Federal Government anything. The 
legislation allows the FBI, and states if they so choose, to charge 
reasonable fees to security firms to recover their costs of carrying 
out this act.
  Second, the bill protects employee and prospective employee privacy. 
Before an FBI background check can be conducted, the employee or 
applicant for employment must grant an employer written consent to 
request the FBI database search. In addition, the criminal history 
reports received by the States will not be disseminated to employers. 
Instead, in States that have standards regulating private security 
guard employment, designated State agencies will simply be required to 
use the information provided by the FBI in applying their State 
standards. For those States that have no standards, the States will be 
instructed to inform requesting employers whether or not employees or 
applicants have been convicted of either: 1. a felony; 2. a violent 
misdemeanor within the past ten years; or 3. a crime of dishonesty 
within the past ten years. Thus, in these situations, only the fact 
that a particular conviction exists or not will be provided by States 
to employers, and the privacy of the records themselves will be 
maintained. All information provided to employers pursuant to this act 
must be provided to the employees or prospective employees. 
Furthermore, the bill establishes strong criminal penalties for those 
who might falsely certify they are authorized security firms or 
otherwise use information obtained pursuant to this act beyond the 
act's intended purposes.
  Third, the bill protects States' interests. The bill does not impose 
an unfunded mandate on the states. It reserves the right of States to 
charge reasonable fees to employers for their costs in administering 
this act. Moreover, if a State wishes to opt out of this statutory 
regime, it may do so at any time.
  This legislation is long overdue. It strikes the right balance 
between the need for States and employers to gain access to this 
critical information and the privacy rights of current and prospective 
security guards. We have

[[Page S4708]]

worked with the FBI to expedite the administrative process, and it will 
cost the Federal Government nothing. There is no undue burden being 
placed on our States. Most importantly, passage of this act will plug a 
hole in our homeland defense. I urge my colleagues to support this 
legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 769

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Private Security Officer 
     Employment Authorization Act of 2003''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) employment of private security officers in the United 
     States is growing rapidly;
       (2) private security officers function as an adjunct to, 
     but not a replacement for, public law enforcement by helping 
     to reduce and prevent crime;
       (3) such private security officers protect individuals, 
     property, and proprietary information, and provide protection 
     to such diverse operations as banks, hospitals, research and 
     development centers, manufacturing facilities, defense and 
     aerospace contractors, high technology businesses, nuclear 
     power plants, chemical companies, oil and gas refineries, 
     airports, communication facilities and operations, office 
     complexes, schools, residential properties, apartment 
     complexes, gated communities, and others;
       (4) sworn law enforcement officers provide significant 
     services to the citizens of the United States in its public 
     areas, and are supplemented by private security officers;
       (5) 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;
       (6) the trend in the Nation toward growth in such security 
     services has accelerated rapidly;
       (7) such growth makes available more public sector law 
     enforcement officers to combat serious and violent crimes, 
     including terrorism;
       (8) the American public deserves the employment of 
     qualified, well-trained private security personnel as an 
     adjunct to sworn law enforcement officers; and
       (9) private security officers and applicants for private 
     security officer positions should be thoroughly screened and 
     trained.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Employee.--The term ``employee'' includes both a 
     current employee and an applicant for employment as a private 
     security officer.
       (2) Authorized employer.--The term ``authorized employer'' 
     means any person that--
       (A) employs private security officers; and
       (B) is authorized by regulations promulgated by the 
     Attorney General to request a criminal history record 
     information search of an employee through a State 
     identification bureau pursuant to this section.
       (3) Private security officer.-- The term ``private security 
     officer''--
       (A) means an individual other than an employee of a 
     Federal, State, or local government, whose primary duty is to 
     perform security services, full- or part-time, for 
     consideration, whether armed or unarmed and in uniform or 
     plain clothes; but
       (B) does not include--
       (i) employees whose duties are primarily internal audit or 
     credit functions;
       (ii) employees of electronic security system companies 
     acting as technicians or monitors; or
       (iii) employees whose duties primarily involve the secure 
     movement of prisoners.
       (4) Security services.--The term ``security services'' 
     means acts to protect people or property as defined by 
     regulations promulgated by the Attorney General.
       (5) State identification bureau.--The term ``State 
     identification bureau'' means the State entity designated by 
     the Attorney General for the submission and receipt of 
     criminal history record information.

     SEC. 4. CRIMINAL HISTORY RECORD INFORMATION SEARCH.

       (a) In General.--
       (1) Submission of fingerprints.--An authorized employer may 
     submit to the State identification bureau of a participating 
     State, fingerprints or other means of positive 
     identification, as determined by the Attorney General, of an 
     employee of such employer for purposes of a criminal history 
     record information search pursuant to this Act.
       (2) Employee rights.--
       (A) Permission.--An authorized employer shall obtain 
     written consent from an employee to submit to the State 
     identification bureau of a participating State the request to 
     search the criminal history record information of the 
     employee under this Act.
       (B) Access.--An authorized employer shall provide to the 
     employee confidential access to any information relating to 
     the employee received by the authorized employer pursuant to 
     this Act.
       (3) Providing information to the state identification 
     bureau.--Upon receipt of a request for a criminal history 
     record information search from an authorized employer 
     pursuant to this Act, submitted through the State 
     identification bureau of a participating State, the Attorney 
     General shall--
       (A) search the appropriate records of the Criminal Justice 
     Information Services Division of the Federal Bureau of 
     Investigation; and
       (B) promptly provide any resulting identification and 
     criminal history record information to the submitting State 
     identification bureau requesting the information.
       (4) Use of information.--
       (A) In general.--Upon receipt of the criminal history 
     record information from the Attorney General by the State 
     identification bureau, the information shall be used only as 
     provided in subparagraph (B).
       (B) Terms.--In the case of--
       (i) a participating State that has no State standards for 
     qualification to be a private security officer, the State 
     shall notify an authorized employer as to the fact of whether 
     an employee has been convicted of a felony, an offense 
     involving dishonesty or a false statement if the conviction 
     occurred during the previous 10 years, or an offense 
     involving the use or attempted use of physical force against 
     the person of another if the conviction occurred during the 
     previous 10 years; or
       (ii) a participating State that has State standards for 
     qualification to be a private security officer, the State 
     shall use the information received pursuant to this Act in 
     applying the State standards and shall only notify the 
     employer of the results of the application of the State 
     standards.
       (5) Frequency of requests.--An authorized employer may 
     request a criminal history record information search for an 
     employee only once every 12 months of continuous employment 
     by that employee unless the authorized employer has good 
     cause to submit additional requests.
       (b) Regulations.--Not later than 180 days after the date of 
     enactment of this Act, the Attorney General shall issue such 
     final or interim final regulations as may be necessary to 
     carry out this Act, including--
       (1) measures relating to the security, confidentiality, 
     accuracy, use, submission, dissemination, destruction of 
     information and audits, and recordkeeping;
       (2) standards for qualification as an authorized employer; 
     and
       (3) the imposition of reasonable fees necessary for 
     conducting the background checks.
       (c) Criminal Penalty.--Whoever falsely certifies that he 
     meets the applicable standards for an authorized employer or 
     who knowingly and intentionally uses any information obtained 
     pursuant to this Act other than for the purpose of 
     determining the suitability of an individual for employment 
     as a private security officer shall be fined under title 18, 
     United States Code, or imprisoned for not more than 2 years, 
     or both.
       (d) User Fees.--
       (1) In general.--The Director of the Federal Bureau of 
     Investigation may--
       (A) collect fees pursuant to regulations promulgated under 
     subsection (b) to process background checks provided for by 
     this Act; and
       (B) establish such fees at a level to include an additional 
     amount to defray expenses for the automation of fingerprint 
     identification and criminal justice information services and 
     associated costs.
       (2) Limitations.--Any fee collected under this subsection--
       (A) shall be credited as offsetting collections to finance 
     the activities and services for which the fee is imposed;
       (B) shall be available for expenditure only to pay the 
     costs of such activities and services; and
       (C) shall remain available until expended.
       (3) State costs.--Nothing in this Act shall be construed as 
     restricting the right of a State to assess a reasonable fee 
     on an authorized employer for the costs to the State of 
     administering this Act.
       (e) State Opt Out.--A State may decline to participate in 
     the background check system authorized by this Act by 
     enacting a law or issuing an order by the Governor (if 
     consistent with State law) providing that the State is 
     declining to participate pursuant to this subsection.
                                 ______