search annual meeting federal legislative briefing robert r. belair search general counsel july 2005...

SEARCH Annual MeetingSEARCH Annual MeetingFederal Legislative BriefingFederal Legislative Briefing

Robert R. BelairRobert R. Belair

SEARCH General CounselSEARCH General Counsel

July 2005July 2005

Washington, D.C.Washington, D.C.


Criminal Justice FundingCriminal Justice Funding The House approved the FY The House approved the FY

2006 CJS Appropriations bill 2006 CJS Appropriations bill (H.R. 2862) on June 16(H.R. 2862) on June 16thth. The . The Senate has reported its version Senate has reported its version as a substitute amendment to as a substitute amendment to the House bill, but has yet to the House bill, but has yet to approve it.approve it.


Criminal Justice FundingCriminal Justice Funding The House and Senate bills include The House and Senate bills include

the following:the following: Byrne Discretionary Grants: House - Byrne Discretionary Grants: House -

$110 million; Senate - $177 million$110 million; Senate - $177 million SEARCH: House - Soft earmark; SEARCH: House - Soft earmark;

Senate – No earmarks in CJS billSenate – No earmarks in CJS bill Byrne Formula Grants: House - Byrne Formula Grants: House -

$348.5 million; Senate - $625 million$348.5 million; Senate - $625 million


Criminal Justice FundingCriminal Justice Funding COPS: House - $520 million; COPS: House - $520 million;

Senate - $515 millionSenate - $515 million DNA Backlog: House - $177 DNA Backlog: House - $177

million; Senate - $89.5 millionmillion; Senate - $89.5 million Weed and Seed: House - $50 Weed and Seed: House - $50

million; Senate - $50.3 millionmillion; Senate - $50.3 million BJS: House - $35 million; BJS: House - $35 million;

Senate - $ 34.1 millionSenate - $ 34.1 million


Criminal Justice FundingCriminal Justice Funding NIJ: House - $56 million; Senate - NIJ: House - $56 million; Senate -

$54 million$54 million RISS: House - $40.5 million; RISS: House - $40.5 million;

Senate - $40 millionSenate - $40 million Missing Children: Both bills Missing Children: Both bills

provide $48 millionprovide $48 million NCHIP: House - $25 million; NCHIP: House - $25 million;

Senate - $20 millionSenate - $20 million


Criminal Justice FundingCriminal Justice Funding

White Collar Crime: House - $9 White Collar Crime: House - $9 million; Senate – not included million; Senate – not included due to Senate Rule prohibiting due to Senate Rule prohibiting unauthorized appropriationsunauthorized appropriations


Criminal Justice FundingCriminal Justice Funding The appropriators have The appropriators have

rejected President Bush’s plan rejected President Bush’s plan to merge Byrne and Local Law to merge Byrne and Local Law Enforcement Block Grants.Enforcement Block Grants.

The House number on Byrne The House number on Byrne Discretionary is lower than Discretionary is lower than usual, but we expect the final usual, but we expect the final number to be closer to the number to be closer to the Senate, around $170 million.Senate, around $170 million.


Criminal Justice FundingCriminal Justice Funding The House has given SEARCH a soft

earmark. The new Senate Appropriations

Committee leaders, Richard Shelby (R-AL) and Barbara Mikulski (D-MD), have for the first time opted not to earmark CJS.

We expect the conference report to include earmarks.


Homeland Security Homeland Security FundingFunding

The House approved the FY 2006 The House approved the FY 2006 Department of Homeland Security Department of Homeland Security appropriations bill on May 17th. appropriations bill on May 17th.

The Senate Appropriations The Senate Appropriations Committee approved its version Committee approved its version on June 16on June 16thth. .

The full Senate began The full Senate began consideration of the bill on July consideration of the bill on July 1212thth..



The bills include the following:The bills include the following: ODP basic formula grants: House - ODP basic formula grants: House -

$1.15 billion; Senate - $1.52 $1.15 billion; Senate - $1.52 millionmillion

Both DHS bills include $400 Both DHS bills include $400 million in terrorism grants.million in terrorism grants.

High-threat area grants: House - High-threat area grants: House - $850 million; Senate – none$850 million; Senate – none



Firefighter grants: House - $600 Firefighter grants: House - $600 million; Senate - $615 millionmillion; Senate - $615 million

Information analysis and Information analysis and infrastructure protection grants: infrastructure protection grants: House - $663 million; Senate - House - $663 million; Senate - $701.8 million $701.8 million

TSA baggage screening: House - TSA baggage screening: House - $884 million; Senate - $931 $884 million; Senate - $931 millionmillion



US-VISIT: House - $390.23 US-VISIT: House - $390.23 million; Senate - $340 millionmillion; Senate - $340 million

DHS information technology DHS information technology enhancements: House - $218 enhancements: House - $218 million; Senate - $210.8 millionmillion; Senate - $210.8 million



• There are no earmarks in the There are no earmarks in the House or Senate billsHouse or Senate bills

• We expect to see limited We expect to see limited earmarks in the Conference earmarks in the Conference ReportReport

• If so, this will be the first time If so, this will be the first time and is likely to be limited to and is likely to be limited to infrastructure support fundinginfrastructure support funding


DOJ ReauthorizationDOJ Reauthorization In the House, Chairman In the House, Chairman

Sensenbrenner is expected to Sensenbrenner is expected to reintroduce his DOJ reintroduce his DOJ reauthorization from last year. reauthorization from last year. Senate legislation remains Senate legislation remains uncertain. uncertain.

Last year’s bill would have:Last year’s bill would have: Eliminated most OJP discretionary Eliminated most OJP discretionary

grant programs; merged these grant programs; merged these programs into new state and local programs into new state and local block grant programsblock grant programs


DOJ ReauthorizationDOJ Reauthorization• Partially reorganized OJP, to include Partially reorganized OJP, to include

an Office of Applied Law Enforcement an Office of Applied Law Enforcement Technology to “provide leadership Technology to “provide leadership and focus to those grants of the and focus to those grants of the Department …for…using or Department …for…using or improving law enforcement computer improving law enforcement computer systems.”systems.”


DOJ ReauthorizationDOJ Reauthorization Created a Community Capacity Created a Community Capacity

Development Office within OJPDevelopment Office within OJP Promotes coordination of public Promotes coordination of public

and private efforts and resourcesand private efforts and resources Provides information, training and Provides information, training and

technical assistancetechnical assistance Provides support for inter- and Provides support for inter- and

intra-agency task forcesintra-agency task forces


DOJ ReauthorizationDOJ Reauthorization Reauthorized COPS but effectively Reauthorized COPS but effectively

merged OJP and COPSmerged OJP and COPS Strengthened BJS’ responsibility for Strengthened BJS’ responsibility for

criminal history improvement; NICS criminal history improvement; NICS improvement; and state improvement; and state participation in national CHRI participation in national CHRI programsprograms

Reauthorized Crime Identification Reauthorized Crime Identification Technology Act (CITA)Technology Act (CITA)


DOJ ReauthorizationDOJ Reauthorization Created a permanent Office of Weed Created a permanent Office of Weed

and Seed Strategiesand Seed Strategies Required states to upload to CODIS Required states to upload to CODIS

the DNA of all persons convicted of a the DNA of all persons convicted of a violent felonyviolent felony

Created anti-terrorism training grants Created anti-terrorism training grants for state and local law enforcementfor state and local law enforcement

Stripped DOJ of authority to Stripped DOJ of authority to reorganize OJP without first obtaining reorganize OJP without first obtaining congressional authorizationcongressional authorization


DOJ ReauthorizationDOJ Reauthorization

S. 2863, the 2004 Senate DOJ S. 2863, the 2004 Senate DOJ Reauthorization Act, included an Reauthorization Act, included an authorization for SEARCHauthorization for SEARCH


DOJ ReauthorizationDOJ Reauthorization ““Section 237, SEARCH, The National Consortium Section 237, SEARCH, The National Consortium

for Justice Information and Statistics. for Justice Information and Statistics. (a) IN GENERAL – Pursuant to subpart 1 of part E (a) IN GENERAL – Pursuant to subpart 1 of part E

of title 1 of the Omnibus Crime Control and Safe of title 1 of the Omnibus Crime Control and Safe Streets Act of 1968, the Director of the Bureau Streets Act of 1968, the Director of the Bureau of Justice Assistance shall make grants to of Justice Assistance shall make grants to SEARCH, the National Consortium for Justice SEARCH, the National Consortium for Justice Information and Statistics, to carry out the Information and Statistics, to carry out the operations of the National Technical Assistance operations of the National Technical Assistance and Training Program operated by SEARCH under and Training Program operated by SEARCH under the direction of the Office of Justice Programs.the direction of the Office of Justice Programs.

(b) AUTHORIZATION OF APPROPRIATIONS – There (b) AUTHORIZATION OF APPROPRIATIONS – There are authorized to be appropriated in each of are authorized to be appropriated in each of fiscal years 2005, 2006, and 2007, $4,000,000 to fiscal years 2005, 2006, and 2007, $4,000,000 to carry out this section.”carry out this section.”


The REAL-ID Act On May 10, President Bush signed into

law the REAL-ID Act. The Act gives states the “option” to

produce standardized, tamper-resistant driver's licenses that would include machine-readable, encoded data.

Noncompliance would create hardship for state residents: No access to federal buildings or federal

benefits, No access to commercial flights.


The REAL-ID Act As a condition of receiving grant

funds or other financial assistance under the Act, states are required to participate in the interstate compact regarding the sharing of driver's license data (the Driver License Agreement).


The REAL-ID Act The Secretary of Homeland

Security is directed to: Improve communications systems of

Federal agencies to facilitate integrated communications among such agencies, state and local government agencies, and Indian tribes on border security matters; and

Enhance related information sharing among such entities.


The REAL-ID Act The Department of Homeland

Security is directed to study the technology, equipment, and personnel needed to address security vulnerabilities within the United States for each Customs and Border Protection field office that has responsibility for U.S. borders with Canada and Mexico.


The REAL-ID Act Employees authorized to issue the

new identification documents are required to undergo “appropriate security clearance requirements.”

The Secretary of Homeland Security may potentially issue security clearance guidelines that include background checks.


Anti-Gang Legislation The House has passed H.R. 1279. The Senate Judiciary Committee is

considering its own version of the House bill, S. 155.

Senator Richard Durban (D-IL) has a bill, S. 1322, to aid prosecution of gangs by defining “gangs” and types of “gang crimes.”


DHS Reauthorization The House has passed its DHS

reauthorization bill, H.R. 1817. The bill creates an Assistant

Secretary for Cybersecurity in the Department of Homeland Security (see H.R. 285 also).

Enactment is uncertain – the administration is unenthusiastic.


Background Check Background Check LegislationLegislation

Currently tracking almost 40 Currently tracking almost 40 background check bills. Few, if any, background check bills. Few, if any, will be enacted.will be enacted.

Bills are inconsistent or silent on many Bills are inconsistent or silent on many key issueskey issues State or federal check or both?State or federal check or both? Prints or name-only?Prints or name-only? Fees?Fees?



Bills are piecemeal and require checks Bills are piecemeal and require checks for a myriad of positions and licensesfor a myriad of positions and licenses

Generally, bills prescribe Generally, bills prescribe backgrounding for individuals:backgrounding for individuals: Providing services to vulnerable Providing services to vulnerable

populationspopulations With access to protected areasWith access to protected areas With access to sensitive information With access to sensitive information

or materialsor materials With national security or other With national security or other

important responsibilitiesimportant responsibilities



Two background check bills are in Two background check bills are in the conference process:the conference process:• H.R. 3: Secretary of Transportation H.R. 3: Secretary of Transportation

would issue security clearance would issue security clearance guidelines for HazMat drivers, guidelines for HazMat drivers, including backgrounds.including backgrounds.

• H.R. 6: Requires background H.R. 6: Requires background checks for those with access to checks for those with access to nuclear materials and secure areas nuclear materials and secure areas of nuclear facilities. of nuclear facilities.



One bill has been approved by its committee and is awaiting floor action: S. 864: would revise guidelines

governing fingerprinting and criminal history record checks of individuals licensed or certificated to engage in activity subject to NRC regulation. (See also H.R. 2689 & S. 1150)



Other bills that have been introduced Other bills that have been introduced require checks for:require checks for: H.R. 822: Requires mentors of children in H.R. 822: Requires mentors of children in

child care to submit to a screening program child care to submit to a screening program which would include criminal history which would include criminal history background checks.background checks.

H.R. 1233: Ensure that appropriate State social services officers have the authority to access certain Federal databases for the purpose of carrying out checks in cases of child abuse and neglect and cases of missing children

H.R. 1312: For purchases of assault weapons.



• H.R. 1295: Establish and maintain a H.R. 1295: Establish and maintain a national database of licensed mortgage national database of licensed mortgage brokers. All federal and state laws brokers. All federal and state laws regarding privacy and confidentiality would regarding privacy and confidentiality would apply to the contents of the database. apply to the contents of the database.

• H.R. 1562: Access to dangerous chemical H.R. 1562: Access to dangerous chemical substances.substances.

• H.R. 2006: Require states to have a system of reporting criminal background information of licensed health care practitioners.



• H.R. 2330 & S. 1033: Requires aliens to H.R. 2330 & S. 1033: Requires aliens to submit fingerprints and undergo a submit fingerprints and undergo a background check before the alien may background check before the alien may change his or her status from alien to change his or her status from alien to nonimmigrant. Would also require nonimmigrant. Would also require background checks for aliens applying for background checks for aliens applying for citizenship status.citizenship status.

• H.R. 2353: Require background checks of H.R. 2353: Require background checks of ten largest financial stakeholders of a ten largest financial stakeholders of a Native American casino.Native American casino.



• H.R. 2621: Bounty hunter fingerprint-based H.R. 2621: Bounty hunter fingerprint-based background checks.background checks.

• H.R. 2649: Fingerprint-based criminal history H.R. 2649: Fingerprint-based criminal history background checks for preflight security background checks for preflight security officer or other airport job where the individual officer or other airport job where the individual would have access to general aviation craft, would have access to general aviation craft, aircraft, or secure areas of an airport.aircraft, or secure areas of an airport.

• H.R. 2688: fingerprint-based background checks for all unescorted airport personnel with access to sterile and secured airport areas.



H.R. 2748: Camp employees. S. 644: Requires aliens claiming asylum to be

fingerprinted, and that the fingerprints and other required biometric data for background

check. S. 987: Pilot program of tribal criminal history

information for law enforcement purposes. S. 1052: Prohibit foreign HazMat drivers from

driving in U.S. without U.S.-compliant background check.


NICS/Brady Act LegislationNICS/Brady Act Legislation

• H.R. 1415, NICS Improvement Act of 2005: H.R. 1415, NICS Improvement Act of 2005: Introduced March 17, 2005Introduced March 17, 2005• Findings are adverseFindings are adverse

• NICS rejected 790,000 individuals NICS rejected 790,000 individuals between 11/98 and 12/03between 11/98 and 12/03

• 24 million state criminal records are not 24 million state criminal records are not accessible to NICSaccessible to NICS

• 16 million more state criminal records are 16 million more state criminal records are incompleteincomplete



• States are the primary cause of NICS States are the primary cause of NICS delays and problemsdelays and problems• Failure to automateFailure to automate• Failure to updateFailure to update• Failure to format for NICSFailure to format for NICS• Only 45% of CHRI in the III includes Only 45% of CHRI in the III includes

dispositionsdispositions• 40 states do not automate or make 40 states do not automate or make

available mental health records to NICS available mental health records to NICS


NICS/Brady Act LegislationNICS/Brady Act Legislation• Of the 10 states submitting mental Of the 10 states submitting mental

health data to NICShealth data to NICS• 8 states have submitted less than 40 8 states have submitted less than 40

records per staterecords per state• One state has submitted 1,600 recordsOne state has submitted 1,600 records• Only one state has submitted all mental Only one state has submitted all mental

health records (50,000)health records (50,000)• 8 states do not make domestic violence 8 states do not make domestic violence

restraining orders available to NICSrestraining orders available to NICS• 14 states do not make domestic 14 states do not make domestic

violence misdemeanor conviction violence misdemeanor conviction records available to NICSrecords available to NICS


NICS/Brady Act LegislationNICS/Brady Act Legislation• 3 years after enactment, states are 3 years after enactment, states are

eligible for a waiver of the 10% match eligible for a waiver of the 10% match under NCHIP if the state electronically under NCHIP if the state electronically provides 90% of information 30 years old provides 90% of information 30 years old or less relevant to eligibility to purchase a or less relevant to eligibility to purchase a firearmfirearm

• States shall also make available to the States shall also make available to the Attorney General all information regarding Attorney General all information regarding misdemeanor crimes of domestic violencemisdemeanor crimes of domestic violence

• States shall also make available to the States shall also make available to the Attorney General all information regarding Attorney General all information regarding persons adjudicated as mentally defectivepersons adjudicated as mentally defective


NICS/Brady Act LegislationNICS/Brady Act Legislation• $250 million a year is authorized for FY $250 million a year is authorized for FY

’06 -FY ’08 for grants to the states ’06 -FY ’08 for grants to the states consistent with NCHIP for:consistent with NCHIP for:• Electronic reporting systems to NICSElectronic reporting systems to NICS• NICS background checksNICS background checks• Capturing final dispositionsCapturing final dispositions• Supplying accurate and timely mental Supplying accurate and timely mental

health informationhealth information• Supplying accurate and timely domestic Supplying accurate and timely domestic

violence informationviolence information



• PenaltiesPenalties• After 3 years, Attorney General may After 3 years, Attorney General may

withhold up to 3% of Justice Assistance withhold up to 3% of Justice Assistance funding, and after 5 years, 5%, if state fails funding, and after 5 years, 5%, if state fails to provide less than 60% of the relevant to provide less than 60% of the relevant NICS informationNICS information

• Attorney General may waive penalty if state Attorney General may waive penalty if state is making a “reasonable effort” to complyis making a “reasonable effort” to comply



• Studies and reportsStudies and reports• BJS shall evaluate NICS’ operations BJS shall evaluate NICS’ operations

and provide annual report to and provide annual report to CongressCongress

• BJS shall evaluate and report on state BJS shall evaluate and report on state participation annuallyparticipation annually



• Grants to the courtsGrants to the courts• Attorney General shall make grants to each Attorney General shall make grants to each

state for the court system to improve state for the court system to improve transmittal to NICS of disposition transmittal to NICS of disposition information, domestic violence orders and information, domestic violence orders and mental health adjudicationsmental health adjudications

• $125 million is authorized for FY ’06 to FY $125 million is authorized for FY ’06 to FY ’08.’08.



Other NICS/Brady Act legislation Other NICS/Brady Act legislation includesincludes:: H.R. 662: Permits expungement of H.R. 662: Permits expungement of

records of certain nonviolent criminal records of certain nonviolent criminal offensesoffenses.

H.R. 1168: Add to NICS database persons named in the Violent Gang and Terrorist Organization File.

H.R. 1195: Add to NICS database persons who may be prevented from boarding an aircraft.



H.R. 1225 & S. 578: Improve NICS terrorist matches.

H.R. 3132 & 3133: Improve and expand H.R. 3132 & 3133: Improve and expand requirements for sex offender requirements for sex offender registrants.registrants.


Biometrics LegislationBiometrics Legislation Genetic Nondiscrimination Act (S. Genetic Nondiscrimination Act (S.

306)306) Unanimously passed the Senate.Unanimously passed the Senate. House has not yet acted (H.R. 1227).House has not yet acted (H.R. 1227). Bars use of genetic information by Bars use of genetic information by

employers when making employment-employers when making employment-related decisions (hiring, promotions, related decisions (hiring, promotions, etc). etc).

Bars health insurers from using genetic Bars health insurers from using genetic informationinformation to deny coverage or determine rates or premiums.


Biometrics LegislationBiometrics Legislation H.R. 173, aka H.R. 478: Enhance port

security by issuing biometric-based ID cards to port workers.

H.R. 244: Create a DNA database for violent predators against children.

H.R. 875: Would create a tax break for taxpayers who purchase biometric verification devices for security purposes.

S. 1220: Increase frequency of sex offender database updates. Include DNA/photo/ fingerprints.


Biometrics LegislationBiometrics Legislation H.R. 688: Amend the passport

requirements of the federal visa waiver program to require that passports:

Satisfy the international standard for machine readability;

Be tamper-resistant; and Incorporate biometric and document

authentication identifiers that comply with applicable biometric and document identifying standards established by the International Civil Aviation Organization."


Biometrics LegislationBiometrics Legislation H.R. 1320: Would require the

Department of Homeland Security to conduct a study on biometric technology to determine which biometric identifiers would best serve the uses of border control, including background checking.

The bill contains a variety of provisions relating to surveillance, biometrics, and background checking in the border security context.


Biometrics LegislationBiometrics Legislation H.R. 1602: Grants to reduce the DNA kit

backlog. H.R. 2423 & S. 1086: New fingerprinting

and DNA procedures for sex offenders, including federally maintained DNA database and requiring states to maintain DNA databases.

H.R. 2623: Would set national standards for DNA testing used to establish the degree of genetic relatedness between two or more persons.


Biometrics LegislationBiometrics Legislation H.R. 2659: grants to States to improve

sex offender registries. H.R. 2672 & S. 853: Requires the

Department of Homeland Security to identify biometric identification best practices and directs implementation of those standards, in cooperation with Mexico and Canada for border security purposes.

H.R. 2796: Grants to expand use of DNA ID to prosecute sex offenders.


Biometrics LegislationBiometrics Legislation S. 455: Secretary of State must submit a

report to Congress detailing the feasibility of collecting biometric data for visas without requiring the applicant to appear

at a U.S. mission in a foreign country. S. 980: monitoring convicted sex offenders

by developing and implementing a

program using global positioning systems


Cyber-Security LegislationCyber-Security Legislation Two spyware bills have passed the Two spyware bills have passed the

House and are awaiting action in House and are awaiting action in Senate committees:Senate committees: H.R. 29 & S. 678: Require consent and H.R. 29 & S. 678: Require consent and

notice to install any computer notice to install any computer program (other than cookies, etc) on program (other than cookies, etc) on another’s computer.another’s computer.

H.R. 744: Criminalizes installation of H.R. 744: Criminalizes installation of spyware in furtherance of a crime. spyware in furtherance of a crime. Authorizes $10 million to fight Authorizes $10 million to fight phishing.phishing.


Cyber-Security LegislationCyber-Security Legislation H.R. 1069, H.R. 1080, H.R. 1263, H.R. 3140, S. H.R. 1069, H.R. 1080, H.R. 1263, H.R. 3140, S.

500, S. 751, S. 768, S. 1216, S. 1326, & S. 500, S. 751, S. 768, S. 1216, S. 1326, & S. 1332: Commercial entity (and sometimes 1332: Commercial entity (and sometimes government agency) information security and government agency) information security and consumer notification of security breaches.consumer notification of security breaches.

H.R. 1653 & S. 810: Notice and consent to H.R. 1653 & S. 810: Notice and consent to outsource personally identifiable information.outsource personally identifiable information.

H.R. 3109: Grants for colleges to establish or expand cybersecurity professional programs.

S. 318: Restricts government use of intercepted computer trespass communications.

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