Regardless of your politics, most people want their personal privacy protected. California Governor Newsom cited, “an individual’s constitutional right to privacy,” in his letter to the California State Senate, when he returned California Senate Bill 1262 (SB-1262), without his signature, effectively allowing the bill to die.
SB-1262 would have returned Dates of Birth (DOB’s) to publicly accessible court criminal index terminals. This Bill would have had the effect of overturning a 2021 California Appeals Court decision which had the detrimental consequences of removing DOB’s from these indexes. The negative impact of no DOB is because criminal records typically have no social security number, so without a date of birth, confirming whether a record belongs to a particular individual can be extremely problematic, if possible at all.
Protecting consumer privacy is a reasonable and honorable pursuit. However, when consumers are providing their consent for a background check, as they are endeavoring to be hired for a job or accepted as a resident on a tenant lease application, hindering the process that allows background checks to be completed is ultimately a disservice to the consumers that are supposedly being protected.
I actually proposed a solution in my August 2021 blog, “The Impact of Removing DOB From Public Records.” There is a difference between total public access, i.e., anyone worldwide can access via the internet, and restricted access. Consumer Reporting Agencies (CRA’s) only perform background checks with consumer consent and for some permissible business purpose, such as employee screening, tenant screening, member screening, and franchisee screening, to name just a few.
The solution: Provide access with DOB’s only to authorized entities, not the public at large. CRA’s follow the Fair Credit Reporting Act (FCRA – the federal law that governs background checks). They have the consumer consent and are performing a background check at the request of the consumer, who is hoping to be approved for whatever application they have submitted, such as an employment position, or a rental apartment.
When these electronic criminal indexes have no DOB’s, the request has to go to the actual county clerk’s office, where a county employee must obtain and then research the physical criminal file. With staffing shortages, these searches — if the county will perform them at all, can take a month or more (some county clerks’ offices are actually refusing to even try to obtain the DOB from the court records file).
Court delays can prevent consumers from obtaining the job or apartment that they are seeking. However, there can also be an adverse impact upon the employer, property management company, or other type of business that is requesting the background check. The inability to confirm a criminal record due to the lack of DOB information, can result in a dangerous criminal being approved for the job, apartment, or other permissible purpose. This is because the CRA cannot report the record, if the county does not provide sufficient data, i.e., the DOB, as CRA’s are required by law (the FCRA) to use maximum possible accuracy when they report criminal records to a client.
So — Governor Newsom — please take note. There is a way to protect consumer privacy, as well as protect the communities, businesses, and residential apartments that are trying to ensure a safe place to work and live. Also, in your letter to the California Senate, explaining your decision not to sign SB-1262, you cite that this Bill makes it more convenient for background check companies to perform their services. You miss two important points, the first being the consumers who are authorizing their background checks and the businesses that need these background checks to make an informed applicant decision. It helps these citizens and businesses — that is for whom CRA’s are performing these background check services.
The second point, Governor Newsom, is: Not all background screening companies are CRA’s, as I wrote about in September 2016. Safeguarding consumer privacy is a cornerstone of what CRA’s do every day. Preventing background check companies that are not CRA’s — the ones available online that are only data dumps of public records, and that state in their fine print that they are not CRA’s and their reports cannot be used as FCRA-compliant consumer reports — those are the companies that need to be banned from obtaining DOB’s.
The solution, again. Allow access to DOB’s on county criminal terminals, but only to qualified entities that have been properly vetted, such as CRA’s. Your citizens, as well as businesses nationwide that have California applicants, deserve better.
Posted by: Rudy Troisi, L.P.I., President and CEO, Reliable Background Screening
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