Since I am spending a lot of time working far from my usual home, I attempted to rent an apartment last week. The apartment complex conducted a criminal background check, and told me I was ineligible as a tenant, because the background check turned something up.
What, precisely, did it turn up? Ah, the woman could not tell me that, because she herself did not know. She merely entered my name, birthdate, and SS# into her computer terminal, and a service provided by First Advantage SafeRent Inc. told her "no." So, the apartment complex kept my $75 application fee, showed me the door, and left me to deal with the nice people at SafeRent on my own. This entailed downloading a PDF form from their web site, printing it, signing it, and mailing it to them with a copy of my driver's license, to prove my own identity. Presumably this is purely for financial reasons, since SafeRent must prefer to sell its information, and will only give it away if I can convince them that I am the "person of interest."
Since I didn't feel like waiting for a response that may take several weeks, I decided to satisfy my curiosity with one of the many online services that now offer background checks. I paid a total of $78 for a nationwide search on myself. And, what do you know, there I am, listed as being guilty of a misdemeanor.
Only one problem: I was indeed charged, many years ago, but the charge was dismissed with prejudice, and I have a copy of the court document to prove it.
That document is not going to do me a lot of good. Let us assume that I can correct any error in the records maintained by the state criminal justice system. Actually this itself is a major ordeal, entailing an application which must include a set of my fingerprints; and then of course I will also have to go through the same thing with the FBI, since the state cheerfully admits that it tells the FBI everything.
I will still have to go after more than 100 online background-checking services, one by one, because, inevitably, they are creating their own databases derived from second-hand or third-hand sources. (A local database is so much cheaper for them to search, obviously.) One of the services I looked at states that it will not correct any error until compelled to do so by a court order. And of course new services are popping up all the time.
Already there have been some reported instances of rejected job applicants filing suit against background-checking services, alleging negligence.
What interests me is that this whole phenomenon is only just beginning to get rolling. Criminal background checks are still a little too expensive right now for most apartment landlords, home-owner associations, and employers. That obviously will not last, since apparently those millions of paper documents in county court houses have been largely digitized. Now that the data entry has been completed (competently or otherwise), information just wants to be free, right? Certainly it wants to be cheaper than $78. In a few years (or maybe months) from now, when you can check any job applicant or prospective tenant for $5, or maybe for free if the service is supported by context-sensitive popup ads, everyone will be checking everyone. Already it costs me nothing to view a map of the alleged child molesters living in my neighborhood. (I wonder how many errors are in _that_ database.) Can other felons be far behind?
Maybe one of your readers has some ideas on how this can be fixed. I don't see any way. It makes the fuss over Wikipedia look pretty trivial; John Seigenthaler certainly didn't have to submit a set of fingerprints to get _his_ error corrected, and it didn't deprive him of a place to live, either.
I suggest that your friend get a lawyer that handles defamation lawsuits and sue everyone of those background check companies that is reporting false information.
Defamation -- communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person.
Perhaps your friend can't do anything about the errors in these numerous databases without suing many pants off, but he could take preventative measures so that this doesn't happen again. If I were him, I would pay the not-too-terribly expensive fee that the FBI charges to have a federal criminal background check run on yourself. And, for good measure, he could have a state check done as well. I had both of these done before beginning my immigration process to Canada. In New York City, the state criminal background check was around $50 and they e-mailed me the results the very next day. It was very painless. The FBI check is less so, and entails having fingerprints done and mailing a bulky package to Virginia, but the end result of having a definitive document telling future landlords you're not a dangerous felon would be worth it. I imagine if you had an FBI clearance in hand when you applied for the apartment, the landlord would forego the entire "background check" process just to save themselves the trouble.
I for one would be extremely suspicious of someone who offered their FBI background check along with their rental application. As with any other document, if you haven't recieved it from the Bureau yourself, it could be easily altered using a photocopy machine and microsoft word (and tape) or photoshop. Boingboing posted a while ago on electronic bording passes being altered to show a different name. This kind of document would be even easier to alter. The best way, in my opinion, to do this would be to check your background yourself, apply normally, and only if they discovered a criminal record in error, to provide a letter explaining the truth, and volunteering to provide back-up documents. You don't need to raise any red flags if you don't have to do so. Many landlords, unless they are desperate, will simply take a pass on a tenant who seems to have issues, after all, there are other prospective tenants out there.
No one brought this up so I thought I would. Aren't their laws about denying for misdemeanors things like employment, credit and housing? It's my understanding that most or all of these things can only be denied for felonies or in some cases for misdemeanors that are what they call crimes of moral turpitude -- prostitution, theft. Drug crimes, assaults, DUI/DWI, other serious traffic violations are not crimes of moral turpitude, and these make up the bulk of misdemeanors. My wife does a fair amount of hiring in her job and they are prohibited from even asking about misdemeanors. Seems that when you can be denied housing for a past drunk driving charge or a cup throwing incident at a sporting event things are getting out of hand.
A number of states (including NY and Wisconsin) as well as some cities and localities prohibit some forms of employment discrimination against people with a criminal history.
Federal housing law prohibits generally discrimination based upon race, religion, ethnic background or national origin, sex, familial status (including having children or being pregnant), or a mental or physical disability. In addition, some state and local laws prohibit discrimination based on a person's marital status, age, or sexual orientation. However, I am not aware of any place in the US where a person is protected from housing discrimination based upon their criminal history - the cases I found, in fact, explicitly say that it is legal to ask if a prospective tenant has a crimnal history, and to base a decision on those grounds.
Also, while your friend should be able to get the online services to correct their records (a threat of a defamation lawsuit should work, once he/she has informed them that the record is incorrect) - he or she will never be able to totally expunge the federal records - NCIC (from what I understand) will not destroy fingerprint records even if the person is found innocent. That being said, their records will (should) indicate the true resolution of the charge - whether it was dismissed with prejudice, guilty or innocent.
Mark Frauenfelder is the founder of Boing Boing and the editor-in-chief of MAKE and Cool Tools. Twitter: @frauenfelder. His new book is Maker Dad: Lunch Box Guitars, Antigravity Jars, and 22 Other Incredibly Cool Father-Daughter DIY Projects