California Says No to Fingerprint Checks

Responding to calls for upgraded background checks for drivers of rideshare vehicles, the California Public Utilities Commission has rejected requests that it require socalled Transportation Network Companies (TNCs) to take fingerprints of potential drivers and run them against governmental criminal biometric databases.

In the commission’s view, the addition of biometric data was unlikely to provide a greater level of safety over and above current background check protocols. In issuing its ruling, the commission said that it has continually sought to strike a proper balance between adopting regulations that promote public safety within the TNC industry while not obstructing the public’s demand for this new mode of transportation. The commission noted that it had previously ordered all TNCs to conduct criminal background checks of applicant drivers, using the name and Social Security number (SSN) for each driver prior to that person being accepted as a TNC driver.

The commission had specified that such background checks were to be conducted on a nationwide basis, inclusive of the national sex offender database. Moreover, the commission had articulated that an applicant would be deemed ineligible to be a TNC driver if the background survey turned up information that the person had on his or her record certain felony criminal convictions within the seven years prior to the date of the background check.

Both Uber (Raiser-CA) and Engine Lyft, Inc. (Lyft), the two most established TNCs operating in the state, told the commission that they presently contract with private companies to conduct the background checks, whereby they search multistate and multi-jurisdictional criminal record locators or other similar commercial nationwide databases. The outside vendors also run searches on the U.S. Department of Justice’s National Sex Offender public website, the TNCs said.

In opposing the proposed fingerprint requirement, both Uber and Lyft set forth a number of negative outcomes that could occur if the commission adopted a biometricbased background check standard. For one, the TNCs argued that it is a myth that scanned fingerprint matching is infallible, since both false positives and false negatives can occur with fingerprint matching. Secondly, they asserted that poor fingerprint quality can impact the system’s ability to confirm or dismiss a potential fingerprint match. The two TNCs contended as well that to the extent any safety benefits from fingerprinting exist, they do not outweigh the potential harm of a fingerprint requirement. That is, they alleged, the aforementioned flaws inherent in pursuing fingerprint-based criminal histories can unfairly disadvantage certain individuals seeking greater economic opportunities provided by the TNC market, especially minority populations.

On the other hand, supporters of fingerprint-based background checks had countered that the fingerprint check requirement will significantly improve rider safety. They forcefully argued that fingerprinting is a reliable and effective means of screening drivers, stressing that only fingerprinting can positively identify a driver-applicant. To that end, they pointed out that current commercial background check standards are susceptible to applicants using an alias or changing their SSN. Furthermore, those in favor of biometric checks drew attention to a case where the district attorneys in San Francisco and Los Angeles had discovered more than 20 Uber drivers that had passed the company’s background check despite having what should have been a disqualifying criminal record.

In reviewing the matter, the commission acknowledged that biometric background checks have been employed for decades as an integral part of the process for determining the fitness and suitability of prospective employees. Nevertheless, the commission found that, in many cases, individuals submitting fingerprints via electronic scanning were not required to also provide at the scanning site a photo identification to prove who they were, which clearly diminished the value of fingerprinting. And, the commission commented, law enforcement agencies themselves have conceded that the quality of their records is only as accurate and up-todate as the information provided by local courts and other law enforcement officials.

As to the claims about the discriminatory impacts of biometric checks on minorities, the commission stated that it lacked a solid evidentiary basis by which to make a determination one way or the other. But the commission said that it shares in concerns about the potential disparate effects that could be felt by minority groups, remarking that such groups often do face disproportionate arrest levels. When coupled with the criminal justice system’s failure to achieve timely disposition of such arrests, the commission said, it was entirely possible that a minority applicant could have an arrest record, even if no conviction was ever entered, that would prevent the person from being hired as a TNC driver. Those concerns notwithstanding, the commission ruled that, based on the record before it, it saw no necessity for instituting a fingerprinting requirement for TNC drivers. It explained that the evidence showed to its satisfaction that the current background check process meets safety concerns even without a biometric background component. Re Regulations Relating to Passenger Carriers, Ridesharing, and New Online- Enabled Transportation Services, Decision 17-11-010, Rulemaking 12-12-011, Nov. 9, 2017 (Cal.P.U.C.).