A Preliminary Assessment of the National

Crime Information Center and the

Computerized Criminal History System

December 1978

NTIS order #PB-291845
Library of Congress Catalog Card Number 78-600164

For sale by the Superintendent of Documents, U.S. Govement Printing office

Washington, D.C. 20402 - Price $2.75

ii
FOREWORD

In recent years, the application of computer and communications

technology to criminal justice systems has increasingly drawn the attention of Congress. Such concern is exemplified by requests from the

House and Senate Committees on the Judiciary that OTA undertake

an assessment of the Department of Justice’s National Crime Information Center and the Computerized Criminal History System.

This report, a background planning document for that assessment,

identifies and analyzes some major issues in the future development of

this FederaI-State system. These are: the information needs for administering criminal justice programs and assuring constitutional rights;

federalism, including division of authority, and cost apportionment;

organization, management, and oversight; the planning process, and

social impacts such as the effects on the administration of justice and

the creation of a dossier society. Many of the policy and technical concerns discussed in the report are common to other major national

information systems being assessed by OTA in the National Information Systems Study which addresses, in addition to the National

Crime Information Center, electronic funds transfer and electronic

mail.

The following background report was prepared by the Office of

Technology Assessment with the assistance of an ad hoc interdisciplinary working group of experts in law, public administration,

State and local criminal justice and law enforcement, computer

sciences, civil liberties, and other related areas.

RUSSELL W. PETERSON

Director

. . .

111
OTA Project Staff

National Crime Information Center’s

Computerized Criminal History System

Iram J. Weinstein, Project Director

Marcia J. MacNaughton Phil Hirsch

Barbara Balbiani Liz Emanuel

Robert F. Daly, Coordinator

OTA Publishing Staff

John C. Holmes, Publishing Officer

Kathie S. Boss Joanne Heming

Working Group Members

Adam D’Alessandro

Acting Deputy Commissioner

New York State Division of Criminal Justice

Services

Albany, N.Y.

Jerry J. Berman

Legislative Counsel

American Civil Liberties Union

Washington, D.C.

Donald G. Ingraham

Office of the District Attorney

Oakland, Calif.

Steve Kolodney

Executive Director

SEARCH GROUP,

‘ Sacramento, Calif.

Kenneth Laudon

Professor

Inc.

John Jay College of Criminal Justice

New York City, N.Y.

Charles Lister

Attorney at law

Covington & Burling

Washington, D.C.

Michael D. Maltz

Professor, Department of Criminal Justice

University of Illinois at Chicago Circle

Chicago, Ill.

Jeffrey A. Meldman

Professor

Sloan School of Management

Massachusetts Institute of Technology

Cambridge, Mass.

Brian Ruder

Information Science Laboratory

SRI International

Stanford Research Institute

Menlo Park, Calif.

James J. Zurawski

Assistant Deputy Superintendent

Research, Development, and Data Systems

Division

Chicago Police Department

Chicago, 111.

David T. Stanley

Consultant

Vienna. Va.

Note: The working group members provided advice and critique, but do not necessarily approve, disapprove, or endorse

the report, for which OTA assumes full responsibility.

v
CONTENTS

Chapter Page

1. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... 3

2. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 7

National Crime Information Center System . . . . . . . . . . . . . . . . . . . . . . . . . 7

Committee Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

History and Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Present Situation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. ... .. 17

Information Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Criminal Justice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Constitutional Rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Division of Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cost Apportionment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Organization, Management, and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . 29

Management Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Managing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

The Planning Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Participation in Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Technical Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Transition Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Social Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Effects on the Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

The Dossier Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Privacy and Civil Liberties Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Appendix A—Letters of Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Appendix B—Pertinent Excerpts From the Department of Justice Report . . . . . . . . . . . 68

Appendix C—Chronology of CCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Appendix D—Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

vii
CHAPTER 1

Summary
CHAPTER 1

Summary

The National Crime Information Center

(NCIC) is a nationwide information network

operated by the Federal Bureau of Investigation

(FBI) since 1967 which provides criminal justice

agencies throughout the country with access to

information on stolen vehicles and other stolen

property, wanted persons, and missing persons.

In 1971, a Computerized Criminal History

(CCH) file was added, containing records of individual offenders’ criminal histories. The CCH

program has been slow to develop; only 12

States and the Federal Government contribute

records to the system.

Although questions have been raised regarding the effectiveness of the entire NCIC network, CCH has been the most controversial aspect of the system. The controversy over CCH

has focused on the question of whether the FBI

should be authorized to provide a messageswitching service to route inquiries and responses regarding criminal history information

between States. However, this question rests on

broader issues, including the system’s potential

impact on constitutional rights of citizens and

on the relationships between the Federal and

State governments in the administration of

criminal justice. The possible longer term impacts of the system on society, both desirabIe

and undesirable, have also been the subject of

speculation. Because of these and other major

concerns, the Office of Technology Assessment

(OTA) was asked by the Judiciary Committees

of the House and the Senate to undertake an

assessment of the NCIC system, with emphasis

on the CCH portions.

This report is the result of a preliminary effort

by the OTA staff and an ad hoc working group

of experts to assess the critical issues raised by

CCH and to identify the important questions regarding each issue. As a preliminary effort, the

document systematically identifies issues but

does not try to answer the questions they raise.

Although CCH has been the subject of numerous studies, conferences, and hearings, there is

only limited information regarding the ways in

which law enforcement and the criminal justice

decisionmakers as well as other government and

private individuals and the press make use of

criminal history information, its benefits, the

value of nationwide access to this information,

and the value of rapid access. Even more limited

is information on the quality of criminal history

records in terms of completeness, accuracy, and

currency, and the effects of inadequate quality

on decisionmaking and constitutional rights of

individuals involved. It must be recognized that

computerization can eliminate certain kinds of

errors which plague manual records. No computerized information system is perfect. Since,

with computers, increased transaction volumes

are to be expected, the potential for harm from

dissemination of inaccurate or incomplete

records also increases.

Much better information is needed concerning these and other questions raised in the report

in order to make assessment and evaluation of

the policy alternatives regarding CCH.

Because of the decentralized nature of the

U.S. criminal justice system and because the

generation and use of criminal history information occurs mostly at the State and local levels

of government, the States have a primary stake

in establishing standards and procedures for the

keeping and dissemination of criminal history

information. On the other hand, minimum national standards also are required for an interstate CCH system. Attempts at comprehensive Federal legislation to control the collection

and dissemination of criminal justice information have failed to produce legislation or a consensus as to how authority for this important

area of control of the system should be allocated

between the States and the Federal Government.

The lack of resolution of this issue is a very

serious obstacle to the successful development

of CCH. This federalism issue underlies issues

raised in the report with regard to management,

oversight, and planning process for the system.

The role of the FBI as a manager of the CCH

system should be raised as an issue for further

3
examinat on. By some standards, the FBI is uni- local criminal justice agencies. The history of

quely qualified to run the CCH program; they

have the cooperation and respect of law enforcement agencies throughout the country; they

have an extensive fingerprint identification

function, which is necessary to support effective

use of CCH where identity is in question; and

the transfer of the CCH system to some other

Government agency might be viewed with great

alarm by the law enforcement community. By

other standards, and in light of changing public

attitudes towards privacy, civil liberties, and

governmental controls, the FBI is placed in a

position of great conflict of interest in bearing

these records management responsibilities in addition to its primary investigatory responsibilities. An argument can be made that higher

public confidence would be attained by placing

CCH operations in a more neutral agency.

The Computerized Criminal History system is

now undergoing an extensive review in Congress, in the Justice Department, and in the

States. Thus an important and immediate issue

is how to accommodate the needs and interests

of the various levels of government, the

Criminal Justice Community, and other

stakeholder groups in the planning process.

Although some Federal agencies use it, the

essence of the CCH system is that primary

sources and users of the data are the State and

CCH development has shown the importance of

the States participation in the planning process.

It is questionable that a blueprint for a workable

system can be created without their playing a

direct, perhaps even principal role in the planning, including participation by a cross-section of

interest groups who will be affected by the

system.

In rethinking the CCH system, a number of

technical system alternatives should be considered. Alternative approaches to managing

message traffic are available that might relieve

some of the concerns raised about the FBI message-switching plan, while raising questions of

their own regarding costs and auditability.

Again the federalism issue is important. Those

who see the responsibility for maintaining and

disseminating criminal history records as falling

primarily with the States argue for viewing

CCH as many different State systems with a

need to exchange information, not necessarily

through NCIC. Those who see a strong need for

Federal oversight and Federal standards for information dissemination argue for a centrally

managed system.

In a future full-scale assessment, OTA will examine these issues, the policy alternatives available, and their long-range implications for

society.

4
CHAPTER 2

Background
CHAPTER 2

Background

NATIONAL CRIME INFORMATION CENTER SYSTEM

The National Crime Information Center

(NCIC) is a national system, managed and

operated by the Federal Bureau of Investigation

(FBI) which uses computers and telecommunication technology for transferring and sharing

criminal justice information among Federal,

State, and local agencies. The center is physically located in the FBI’s computer facility in

Washington, D.C. and includes a telecommunication network that reaches automated or

manual teletype terminals in all of the .50 States,

the District of Columbia, Canada, Puerto Rico,

and some large cities. The service of NCIC is

free to the participating States and the funds for

it come from the FBI’s authorization.

In addition to the Computerized Criminal

History (CCH) system, which is the subject of

this report, NCIC has eight files containing information about wanted persons, missing persons, stolen vehicles, and other missing property. The summary information in these files is

available online in response to inquiries from

law enforcement agencies throughout the country. Confirmation of the validity of the data and

further details must be obtained from the agency that originated the record. Each State has a

single control terminal connected to the NCIC

computer in Washington through which all inquiries and record updates must be transacted.

At the present time, there are well over 6,000

law enforcement terminals connected to NCIC,

averaging over 250,000 transactions daily.

The CCH file was added to NCIC in 1971,

following a successful demonstration of feasibility sponsored by the Law Enforcement

Assistance Administration (LEAA). Originally

conceived as an index file, pointing to records

held in State repositories, the system, as implemented in NCIC, stores full details of criminal records that are supplied by the States and

the Federal Government.

The CCH file now makes available instantly,

more than 1,287,6421 criminal histories of people who at one time or another have been arrested on certain felony and misdemeanor

charges which have been established as “criterion offenses. ”

After 6 years of slow development, and

despite heavy Federal funding of State systems

by LEAA, only 12 States in addition to the

Federal Government are contributing records to

this national data bank for use by their own

agencies, by other State agencies, and by

Federal agencies. Two of the earliest States to

develop CCH programs, New York and Pennsylvania, withdrew from the system in 1974,

finding that they could not justify the cost of updating the duplicate records held by NCIC.

Despite this slow development, criminal justice practitioners are virtually unanimous in

their view that interstate exchange of criminal

history information is necessary for the efficient

and effective administration of justice. State officials express the view that implementation of

CCH has been slowed by indecisiveness and

confusion on the part of the Federal Government.

‘August, 1978 NCIC Newsletter.

7
COMMITTEE REQUESTS

This preliminary analysis was conducted as

an initial planning activity in response to a request for an assessment of NCIC made by the

Chairman of the House Committee on the Judiciary, Representative Peter Rodino, and the

Chairman of the Subcommittee on Civil and

Constitutional Rights, Representative Don Edwards.

They were joined in this request by the Chairman of the Senate Committee on the Judiciary,

Senator James O. Eastland, and the Chairmen

of two Judiciary Subcommittees, the Subcommittee on Administrative Practice and Procedure chaired by Senator James Abourezk, and

the Subcommittee on the Constitution, chaired

by Senator Birch Bayh.

As part of its legislative and oversight responsibilities for the Federal Bureau of Investigation

of the Department of Justice, the House Subcommittee is studying the FBI’s criminal justice

information systems. Assuring proper standards

for these systems has been the legislative concern of the subcommittee for the last three Congresses. Attention has been focused on cost-effectiveness, efficiency, security, and privacy

protection. In addition, the larger issue of the

role of the Federal Government in this exchange

of information by and for local law enforcement

agencies has been raised before the subcommittee.

In seeking OTA’s help, the House Chairman

cites* the technical complexity of nationwide

computerized information and telecommunications systems, and the Justice Department’s

work on a proposal with both short- and longrange plans for the future of NCIC, the FBI’s

role in law enforcement telecommunications

systems, and message switching generally. He

cites a number of provisions that would necessarily have to be addressed in the FBI’s plans for

the future of NCIC: appropriate privacy and

security measures and safeguards for constitutional rights and liberties; the needs of the

primary users, the States; and the right balance

between State and Federal control.

The Senate Judiciary Committee has been

similarly concerned for several Congresses with

the legislative and oversight issues raised by the

NCIC, particularly the CCH files. Yet the chairman notes that it has not had the benefit of a

thorough evaluation of exactly what information is in the system, who needs it and why.

In addition to the matters covered by the

House request, the Senate Committee asks* for

emphasis on several issues, including: the impact of the interrelationship of many information policies that govern the administrative

practices of the Federal and State agencies that

use or are affected by NCIC, particularly by the

criminal history records; the effect of any NCIC

changes on other Federal agency users, as well

as others who use CCH/NCIC files; and the relationship of NCIC programs, operation, and

controls to the constitutional separation of

powers and the independence of the Judiciary.

The Chairman also cited the benefits which

might be gained from such a study; not only to

improve the efficiency of NCIC, but to help

Congress in its consideration of other proposals

for applying such technology on a nationwide

basis:

We believe Congress will benefit from OTA’s

assessment of NCIC. This system represents the

first and most important nationwide use of computer and telecommunications technology to

link Federal, State, and local governments, and

to apply the technology to serious law enforcement and criminal justice problems of concern to

our entire society. Many of the issues involved

in NCIC are those common to any such FederalState information systems.

An assessment of this large Federal-State personal information system would also partially

respond to concerns expresed in 1976 and 1977

in letters to the Director of OTA from two different Chairmen of the Subcommittee on Government Information and Individual Rights of

the House Government Operations Committee. ,

They have cited the subcommittee’s assignment

involving the field of computer technology and

other means of electronic communications,

which flows from its legislative jurisdiction,

● See appendix A. *See appendix A.

8
particularly from the mandates of the Privacy earlier request for assistance on this issue, but

Act of 1974 and the Freedom of Information commented “Of equal, if not greater importance

Act. is the subcommittee’s concern over the impact of

The current Chairman, Representative Rich- technological advances in the development of

ardson Preyer, reconfirmed the subcommittee’s government information programs in general .“

HISTORY AND PERSPECTIVES

The CCH information system is rooted in all

the complex historical relationships among

governments and institutions which have characterized our Federal system from its beginning,

particularly in the area of law enforcement.

To the extent it is a system, CCH was developed and superimposed over patterns, relationships, processes, and ways of making decisions in many hundreds of different political

arenas in every State. It was introduced into a

framework already set by constitutional, statutory, judicial, and administrative doctrines.

Although it was meant to be an eventual substitute for the pre-existing slower arrangements

for sharing information at the Federal level, it

has suffered the drawbacks of operating both as

a parallel system, as a supplement to the old arrangement, or in competition with it as the older

system was developed and expanded with new

technologies.

For these reasons, the development of the

CCH data-sharing program appears to have

been caught up in the same kinds of political

struggles and issues, often with new labels,

which have dominated the old relationships.

The decision areas for CCH development have,

for some purposes, merely provided more

points of access for those contending forces. In

addition, CCH has brought into the old discussions newer forces with varied professional,

economic, and organizational interests in the

application of information sciences and computer and telecommunications technology.

The origin of the application of automated

data-processing (ADP) technology to the exchange of criminal history records is grounded

in the political agendas of the decade of the

sixties, where political contenders debated the

issues of law and order and proposed different

kinds of remedies for dealing with crime in a

highly mobile society. It was conceived in a time

of considerable social unrest, of protest activity,

demonstrations, dissent, and violence, frequently involving travel across State lines for the purpose. Law enforcement officials and courts were

often confronted with multiple arrests which

placed strains on information and investigative

resources and on the capacity of their criminal

justice systems to administer due process of law.

Organized crime elements, active in interstate

commerce raised other public and government

concerns. The extent of the day-to-day problems of crime in the community were beginning

to show up as information technology enabled

better crime reporting.

These public concerns coincided with trends

in developing and applying computer and

telecommunications technology to deal more efficiently and economically with problems of

government and society. Tandem with this was

the enthusiasm over the systems approach to

public administration.

These movements and trends flowered in the

report of the 1967 Commission on Law Enforcement and the Administration of Justice appointed by President Johnson. A landmark in

the intellectual history of criminal justice issues,

the Commission report recommended applying

a systems approach to those interrelated problems through computer technology. It called for

“a national law enforcement directory that

records an individual’s arrest for serious crimes,

the disposition of each case, and all subsequent

formal contacts with criminal justice agencies

related to those arrests. ”

Following passage of the Safe Streets Act of

1968, the Department of Justice’s LEAA,

through Project SEARCH (System for Electronic

Analysis and Retrieval of Criminal Histories),

an interdisciplinary group, sponsored an experi9
ment to develop a plan for collecting and sharing the records of people involved in the administration of criminal justice.

The early Project SEARCH reports on the

need for privacy, confidentiality, and security

in the new systems addressed the social and

political concerns being expressed in Congress

and elsewhere in the Nation about the ways of

achieving a just and fair society, accountability

in government, how to prevent unwarranted

surveillance and other invasions of privacy, and

how to combat crime effectively. Principles

were laid down concerning data content, rules

of access and data use, dissemination, rights of

challenge and redress, and administration.

LEAA began funding the development of

State information technology that would enable

States to computerize their files and participate

in the system. By congressional mandate, they

also began developing legislation to provide

standards for information systems that they

funded. In 1973, Congress amended the Safe

Streets Act of 1968 to require that all criminal

history information collected, stored, or disseminated through LEAA support shall contain,

to the maximum extent feasible, disposition as

well as arrest data where arrest data is included.

These activities are to take place under procedures reasonably designed to ensure that all

such information is kept current; the Administration shall assure that the security and privacy

of all information is adequately provided for

and that information shall only be used for law

enforcement and criminal justice and other

lawful purposes. In addition, an individual who

believes that criminal history information contained in an automated system is inaccurate or

incomplete is entitled to review and correct it.

During the 92d, 93d, and 94th Congresses the

House Judiciary Subcommittee on Civil and

Constitutional Rights and the Senate Judiciary

Subcommittee on Constitutional Rights held

hearings on the various legislative proposals to

set privacy, confidentiality, and security standards for arrest records and for any Federal or

federally supported criminal justice information

systems.

Testimony included that of Federal and State

law enforcement officials and administrators involved in many different criminal justice programs; groups concerned with protection of pri10

vacy and civil liberties: spokesmen for press,

radio, and television interests concerned with

unfettered access to information; constitutional

law experts concerned with accountability in

government; computer professionals; State

officials concerned with demands and controls

that would be placed on standards and uses of

computer technology, and particularly on State

computer operations; representatives from business, industry, and other organizations who

used arrest records; and many others concerned

with the effects on rights to due process of law

under current practices as well as the range of

possibilities for affecting such rights in future

programs.

During these congressional studies, according

to one expert observer, five major issues dominated the agenda:z

1.

2.

3.

4.

5.

What general rules if any should be set by

Federal law to restrict the exchange of

criminal justice information between

criminal justice agencies?

What general rules should govern the

release of criminal justice information outside the criminal justice community?

The extent, if any, of sealing or purging of

records?

What rules should govern the collection

and exchange of criminal justice intelligence and investigative files? and

Who should administer any Federal

legislation—the Attorney General or a

Board composed of private citizens and

representatives of the States and Federal

Government?

The problem of how to set controls on intelligence and investigative information with other

criminal justice arrest records was a particularly

difficult legislative task. Some congressional

sponsors of legislation and many witnesses felt

that it would be impossible and unwise to set

specific standards for collection and dissemination of criminal history records without any

statutory controls on dissemination of more

sensitive and potentially damaging intelligence

information which Federal and State agencies

maintained about people.

The extensive congressional hearings on this

draft legislation produced a high degree of co2Mark Gitenstein, address before the International

Search Symposium, 1975.
operation between Congress and the executive

branch, and among Federal and State law enforcement and criminal justice officials, press

and media, civil liberties representatives, and

other interested parties. However, no consensus

could be reached which was strong enough to

support final passage of legislation specifically

to control law enforcement and criminal justice

records. This was connected to and reinforced

by the fact that the Justice Department undertook to draft regulations to reflect the consensus

already developed and to set privacy and security standards for routine exchange of criminal

history information by the FBI as well as for the

federally funded criminal history record systems

at the State and local level.

The further development of a national consensus on what the public demands from official

information systems was fueled by a Department of Health, Education, and Welfare (HEW)

Report on records on computers in early 1974

which summarized many of the current concerns about fairness and accuracy in government information programs and use of personal

records, The report called for an application of

“fair information practices” in the management

of all personal records systems, including procedures for access, challenge, and rebuttal, for

keeping data accurate and current and controlling improper dissemination. However, the

scope of its recommendations generally excluded law enforcement and criminal justice

records.

The report’s findings encouraged the introduction of bills in many State legislatures and in

Congress.

In Congress, such bills were introduced and

the Senate and House Government Operations

Committees held hearings on what was to become the Privacy Act of 1974. This statute, for

the first time, established broad management

principles and standards for the protection of

privacy, confidentiality, and security in the

Federal Government’s computerization, collection, management, use, and disclosure of personal information about individuals.

In considering the scope of the act, the committees took note of the pending criminal justice

bills and the forthcoming Justice Department

regulations, and refrained from completely including law enforcement and criminal justice

records. However, with respect to criminal history records under the control of Federal agencies, Congress did require application of the

act’s general rules for public notices of record

systems, for individual rights of access and

challenge, and for standards governing confidentiality, security, and data quality.

A preliminary review of the hearings, documents, reports, and commentaries shows that

many of the issues and questions raised in this

report are not new. They have been raised and

discussed ever since the CCH plan was conceived. Some of them have been discussed since

the founding of our country. They have been

the subject of numerous congressional hearings,

of countless studies and conferences by private

organizations, of judicial decisions, and of

scholarly commentaries by experts. They have

concerned Presidents, legislators, and judges;

special interest groups in the public and private

sector; public interest groups; and professional

organizations of all kinds. They continue to

concern directly every citizen who has been

caught up in the machinery of criminal justice

and whose record profile, however accurate or

inaccurate, relevant or irrelevant, stale or timely, may be part of this Federal-State data system.

They concern every person whose chances for

employment, professional license, and many

other rights, benefits, and privileges may depend on someone searching a computerized file

for information.

Ultimately, these questions and issues also

concern every American who is a potential subject for some government decision on that person’s arrest, detention, bail, prosecution, trial,

sentencing, imprisonment, parole, rehabilitation, and employment. Finally, since they relate

to matters of proper, fair, constitutional gathering, use, and disclosing of personal information

about citizens, the issues raised by the application of technology for the CCH data system directly relate to the well-being of our Constitution and to the health of our society.

In addition to these individual concerns, these

issues potentially involve every community that

wants to use the best available means for fighting crime through effective law enforcement and

swift, fair justice for offenders. They concern

those who see popular control over local gov11
ernment as the most desirable instrument for controls and sanctions for this kind of system

democratic self-government. To others, Federal are the best guarantees for freedom.

THE PRESENT SITUATION

The present situation involves plans for ex- At the same time, the States are preparing

pansion of NCIC for message-switching capa- their own positions as to the future of CCH,

bility including the CCH records. both individually and through their memberIn July 1973, the FBI asked Attorney General ship in SEARCH-Group, Inc. -

Richardson’s permission to implement messageswitching capability that “would allow NCIC

users to take advantage of the NCIC telecommunications network to transmit and receive

messages to and from other NCIC users. ” The

Deputy Attorney General on October 1, 1974

wrote the FBI Director “that it was deemed appropriate for the FBI to engage in limited message-switching but that any action to implement

the decision must be preceded by the establishment and approval of an implementation

plan.” The NCIC Limited Message-Switching

Implementation Plan was distributed in April

1975. Attorney General Levi did not act on it.

FBI Director Kelley requested permission to terminate FBI participation in the CCH system.

Action on this request was also deferred and the

FBI was directed to proceed with decentralizing

CCH records back to the participating States.

Members of Congress and concerned subcommittee chairmen have been informed that this effort would be based on adoption of a comprehensive “Blueprint” for a decentralized CCH

program, and the Justice Department has agreed

that this will be developed with the NCIC Advisory policy Board, interested Members of

Congress, State CCH program officials, and

State identification officials, Justice Department

officials have also indicated that the FBI will not

be authorized to perform message-switching until the approval by the Attorney General and

Congress of whatever “Blueprint” is finally

developed by CCH decentralization.

The Deputy Attorney General states: “the

Department has no preconceived notion as to

what ultimate solution will be adopted. ” “The

goals which we shall be striving toward include

identifying and implementing the type of system(s) which satisfy both the spirit of our constitutional democracy and the needs of our

criminal justice community. ” The Department

views these as “fully compatible goals. ”

Reasons for the FBI’s lack of enthusiasm for

continued participation in the CCH system were

described as follows in an April 16, 1976 FBI

memorandum: lack of State participation, underestimation of costs and effort which would

be required to establish, collect, and maintain

data for the more elaborate CCH record format;

nonexistent or slowly developing State technologies; a lack of required discipline and cooperation within State criminal justice systems; and

the controversy surrounding establishment of

the CCH file which has been disruptive to the

growth and progress of the CCH program. In

addition, there have been misunderstandings

regarding the reason the FBI is attempting to

gain approval for limited message-switching;

for instance, it is feared by some that the FBI is

attempting to supplant the National Law Enforcement Telecommunications Systems, Inc.

(NLETS), and that they would be in a position

to monitor all law enforcement communications. The Identification Division has a criminal

history record file representing 21.4 million

records contributed by all 50 States and the FBI,

while CCH has records contributed by 8 States

and the FBI. Most States continue to rely

primarily on the Division services and this

diminishes motivation for taking part in the

CCH program. Finally, there is uncertainty

about the permanence of legislation and regulations to govern NCIC-CCH, particularly those

on privacy and security.

In the course of this planning process, the

Department of Justice and FBI officials have interviewed and evaluated the views of a number

of State officials and CCH user groups. Excerpts

from their report appear in appendix B.

If some of the issues and questions are old,

what is new is this critical moment of decision

for the future development of the system which

is now faced by Congress, the Justice Depart12
ment, and the State and local agencies who use

such information. Decisionmakers now are

presented with new opportunities for application and rearrangement of the informationprocessing and telecommunications technology

in the light of changes in our society, in our

economy, in concepts of federalism, and in the

public expectations of effective law enforcement

work combined with effective government recordkeeping and fair use of information wherever it affects the citizen.

Changes in jurisdictions of the Judiciary

Committees and in the congressional budget

process mean that for the first time in the debate

over the issues, responsibility for substantive

policy and Legislative oversight is joined with

responsibilit y on the FBI budget. What is new,

furthermore, is increased awareness of the need

for careful fact-finding on matters which may

determine the successful structuring of the CCH

system according to the changing and varied

needs of government and society.

13
CHAPTER 3

Issues
NCIC/CCH ISSUES LIST

Information Needs

CRIMINAL JUSTICE REQUIREMENTS

The requirements of the Criminal Justice

System for CCH information are not identified

sufficiently to support planning and evaluation

of an interstate system. (Seep. 17. )

CONSTITUTIONAL RIGHTS

The threats to constitutional rights potentially posed by a CCH system are not sufficiently

identified for planning and evaluation of an interstate system. (See p. 20.)

Federalism

DIVISION OF AUTHORITY

What authority should be allocated among

the units of government to control the contemplated CCH system in terms of efficacy,

legality, and accountability? (See p. 25.)

COST APPORTIONMENT

How shall the costs of developing and

operating the contemplated system be apportioned among Federal, State, and local governments? (See p. 27. )

Organization, Management, and

Oversight

MANAGEMENT RESPONSIBILITIES

Considering the decentralized nature of the

Criminal Justice System, what sort of management structure is required for CCH? (Seep. 29. )

.

OVERSIGHT

What oversight mechanisms are needed to ensure that the CCH system will operate in the

overall public interest? (See p. 31. )

MANAGING AGENCY

What are the requirements for an agency to

manage the CCH System? (Seep. 33. )

The Planning Process

PARTICIPATION IN PLANNING

How can the needs and interests of the

various levels of government, the criminal

justice community and other stakeholder groups

best be accommodated in the planning and

design of the contemplated system? (Seep. 35.)

TECHNICAL ALTERNATIVES

What technical alternatives to the proposed

message-switching system might offer advantages when the fuIl range of system requirements and social concerns are considered? (See

p. 37.)

TRANSITION PLANNING

Considering the significant change in criminal

justice recordkeeping that CCH implies and the

long transition period before it can be implemented fully, what aspects of this transitional period require planning now? (See p. 40.)

Social Impacts

EFFECTS ON THE CRIMINAL

JUSTICE SYSTEM

In what ways, desirable, or undesirable,

might CCH cause, or contribute to changes in

the operation or organization of the criminal

justice system? (See p. 44.)

THE DOSSIER SOCIETY

To what extent, if any, might CCH contribute

to the growth of Federal social control, or

become an instrument for subversion of the

democratic process? (See p. 46.)

PRIVACY AND CIVIL LIBERTIES TRENDS

Is there a conflict between maintaining national privacy and civil liberties trends and

decentralizing responsibility for the CCH

system? (See p. 47. )
CHAPTER 3

Issues

INFORMATION NEEDS

Criminal Justice Requirements

ISSUE

The requirements of the criminal justice

system for Computerized Criminal History

information are not identified sufficiently

to support planning and evaluation of an

interstate system.

SUMMARY

Criminal justice and law enforcement practitioners are virtually unanimous in their view

that interstate exchange of criminal history information is necessary for the efficient and effective administration of justice. Criminal justice agencies at all functional levels, from police

to prisons, could benefit. Interstate exchange of

criminal history information could aid ongoing

efforts to identify career criminals, to fit decisions and treatments to the individual criminal

as well as the crime, and to reduce disparities in

prosecution, sentencing, commitment, and

parole decisions. The benefits of rapid access to

out-of-State criminal history records are suggested, but not conclusively demonstrated, by

preliminary studies. As many as 30 percent of

individuals with criminal history records show

arrests in more than one State, and many criminal justice agencies perceive a need for immediate access to criminal histories. As the mobility of the population increases in the next

decade, this demand will also increase.

Yet attainment of these promised benefits requires that criminal history records themselves

be complete, accurate, and current. Moreover,

the mechanism to permit interstate exchange

must be designed to conformity to State and

Federal restrictions on the dissemination of

criminal histories. The value of out-of-State

criminal history information might be limited if

positive identification linking the subject with

the record cannot be made promptly. The extent

or problems of the identification requirement

are not well established.

Much more investigation is required to assess

the merits of the proposed Computerized Criminal History (CCH) System and to evaluate alternatives.

QUESTIONS

1.

2.

3.

4.

5.

6.

7.

8.

In what ways do, or could, the various

State criminal justice agencies use CCH information to support the administration of

criminal justice including criminal justice

decisionmaking?

How do, or could, the numerous Federal

law enforcement agencies make use of CCH

information?

To what extent do in-State criminal

histories satisfy the needs of State criminal

justice agencies?

To what extent, and for what types of

crimes, would access to out-of-State CCH

information on a regional basis satisfy the

needs of State criminal justice agencies?

In what ways are the requirements for nationwide access to CCH of Federal law-enforcement agencies different from the needs

of State and local agencies?

To what extent do differences in laws and

practices among States constrain or limit

the value of interstate dissemination of

CCH information?

To what extent, and in what circumstances,

could CCH needs of criminal justice agencies be satisfied by system response times of

1 or 2 days or a few hours?

Do police users of CCH information require significantly faster response times for

investigatory purposes? Why?

17
10.

To what extent is positive fingerprint identification required before using CCH information in criminal justice decisionmaking?

What will be the operational impact if identification bureaus cannot respond to indentification requests within a few hours.

DISCUSSION

The criminal justice system has operated over

the years with inadequate information, lacking

completeness, accuracy, and timeliness. It is

only in the last 10 years that any significant

progress has been made towards improving the

level of criminal justice information systems.

Despite its limitations, the law enforcementcriminal justice community has recognized the

great value of criminal history information,

Since 1924 the Federal Bureau of Investigation

(FBI) Identification Division has maintained a

manual file of arrests, and dispositions when

supplied, based on records submitted by local,

State, and Federal law enforcement agencies.

Routinely, but on a voluntary basis, these agencies send arrest records accompanied by fingerprints of the individual involved to the FBI

where a search for an existing record is conducted. If found, the record is augmented with

the new information; otherwise a new record is

created. At present, the Division’s identification

records represent over 21 million individuals.

When supplied with a fingerprint card, the FBI

is able to search its files and determine if the individual has a prior record on file. This major

service of the FBI is routinely used by law enforcement. Inquiries and responses are made by

mail with a response time of about 2 weeks. In

addition to the FBI files, some States have maintained their own State criminal history files.

These manual criminal history records, or rap

sheets, tend to be incomplete. Since the historic

relationship is between the FBI and local police

departments, and not with the prosecution or

courts, there has been no guarantee that dispositions following an arrest will be reported to the

FBI. One internal FBI study showed that less

than 50 percent of entries examined contained

‘Disposition Systems and Procedures—Feasibility

Study, Final Report, Nov. 11, 1976, Identification Section,

FBI.

18

disposition data. Furthermore, of those records

with dispositions, almost 20 percent were not

posted until more than 18 months after the

arrest. *

Criminal history information is used through-out the

the justice system as a basis for decisioning. Police rely on criminal history information i in evaluating potential suspects in cases

under investigation. Prosecutors look to prior

involvement with the justice system as a consideration in determining whether or not to prosecute a case. The information is used to determine whether an arrested individual should be

detained, released on bail, or on his own recognizance. Corrections workers and judges have

similar mandates and the Defense Bar has,

through discovery procedures, obtained background on their clients from criminal history

records.

Federal law enforcement agencies both contribute to and use criminal history information.

In addition to the FBI itself, there are 27 Federal

agencies with law enforcement authority that

have access to this information, including for

example, the Bureau of Alcohol, Tobacco and

Fire Arms, the U.S. Department of Agriculture,

the State Department Passport Office, the Internal Revenue Service, and the various branches

of the military service.2

In the past, obtaining this information could

take 2 weeks or more. This often meant that it

wasn’t available for use at points such as

arraignment occurring early in the adjudication

process. More recently, in at least some States

(e.g., California and New York) the magistrate

before whom the subject must be brought without unnecessary delay has been required by

statute to consider criminal history in making

the decision whether to retain the subject in

custody. The prosecution is similarly required

to evaluate criminal history as part of the charging process. These uses of criminal history information require rapid access, usually within a

few hours. In New York, there is a legal requirement for positive fingerprint identification

before the information is used and the State has

*Some of these late disposition postings are no doubt

attributable to long adjudication times rather than reporting delays.

2NCIC Mailing/Telephone List, Nov. 7, 1977.
installed a facsimile network to make this possible.

Studies have shown that about 30 percent of

individuals with criminal history records show

arrests in more than one State. This evidence,

and a desire to speed up and improve the quality

of criminal history reporting have been important motivations for the development of the

CCH program. Efforts have gone both in the

direction of improving the data-handling and

reporting procedures, including automation,

within the States, and developing a nationwide

CCH program to make out-of-State criminal

history information rapidly available.

A better and more quantitative assessment of

the situations in which out-of-State data could

be useful and the rapidity with which the information is needed would greatly assist the

CCH planning process. Some survey should be

conducted on the state of the law concerning the

requirement that prior criminal history be considered in charging, receiving evidence, and

passing sentence. Also useful would be an

analysis of the extent to which interstate CCH

information exchange would be regional in

nature. It has been estimated, for instance, that

more than 90 percent of the multiple-State offender records associated with people arrested

in California come from contiguous States.

If positive fingerprint identification becomes

a strict requirement before CCH information

can be used in criminal justice decisionmaking,

the utility of rapid access to out-of-State

criminal history information may depend on the

speed at which the identification process can be

accomplished. The potential problem lies in the

case where an arrest is made in State A where

the person has no prior record and the CCH

system discloses a record in State B. Unless a

mechanism for interstate transmission and identification of fingerprints is created that will

allow positive identification in a few hours,

these out-of-State CCH records will either be

unusable or will be used with less than positive

identification.

There is no question that access to a subject’s

criminal history might be appropriate beyond

the area of its occurrence: the Federal and State

legislatures are increasingly requiring not only

that the punishment fit the crime, but the prosecution fit the criminal. And on the face of it,

the criminal justice user is working with only

part of potentially available information if outof-State records are not available. But there

have been no analyses performed to show the

potentiaI benefit to any criminal justice decisions of the use of out-of-State data. However,

surveys of potential user’s perceived needs do

show a general desire to have this data available. 3

The potential benefits of the timely availability of complete and accurate criminal

history information come from the potential of

improving the quality of decisionmaking. The

first offender who might otherwise have been

detained before trial would benefit. Society

would benefit from the imprisonment of the individuals with multiple out-of-State convictions

who otherwise might have been put on probation. But hard information on the potential

benefits of timely availability of criminaI

history is lacking. The data quality needs of

criminal justice decisionmaking are also not

understood.

The consequences of defects in record quality

such as incomplete, incorrect, or ambiguous

criminal history entries on decisionmaking is

simply not known. That the criminal history

files presently in use are woefully incomplete

seems clear. Undoubtedly a concerted effort

must be undertaken to improve disposition reporting. But since no system can ever be made

perfect, some level of error will always exist.

Quantitative measures on data quality matters

will be difficult to come by. However, the attempt is essential because of the apparent conflict between the perceived needs of the justice

system and the concerns discussed in the next

section that defects in record quality could lead

to significant harm to individuals’ rights to due

process and privacy.

3

Search Group Inc., “The American Criminal

Record, ” Sacramento, Calif., Technical Report

1976.

History

No. 14,

19
Constitutional Rights

ISSUE

The threats to constitutional rights potentially posed by a CCH system are not sufficiently identified for planning and evaluation of an interstate system.

SUMMARY

The CCH system was conceived to enhance

the administration and effectiveness of the

criminal justice system. This objective is certainly in the public interest. Also certainly in the

public interest are the protection of the privacy,

civil liberties, and rights to due process, of individuals affected by the system together with

rights of freedom of information. Harmonizing

these parallel and sometimes conflicting interests will require public policy decisions. The

present climate is clouded by the absence of

well-established information on the completeness, ambiguities, and accuracy of criminal history data, and on the nature of injuries to individuals that could be caused by improper use of

CCH records or inadequate CCH records. The

extent of actual incidence of such injuries is also

unknown.

It must be recognized that computerization

can eliminate certain kinds of errors that plague

existing manual records. Yet, because manual

records are not disseminated widely, the errors

tend to be localized. With computers, the transaction volume and dissemination will increase,

as will the capacity to widely disseminate inaccurate or incomplete records. The potential for

harm is therefore much greater with computerized systems. It is important for policy makers to

understand the origins, frequency, and consequences of erroneous or incomplete records in

order to strike a fair balance between potential

harm and potential benefits.

CCH information is also used for evaluation

of applicants for employment or licenses as permitted by Federal and State statutes. Since State

practices differ considerably, the effect of interstate CCH could be significant. The harm to

individuals’ employability that can be caused by

incomplete, inaccurate, or improperly disclosed

records is recognized, but information on the

extent of the problem is not available.

There has been considerable debate on the

merits of purging or sealing criminal history information based on considerations such as age

of record, or the principle that such information

is unlikely to provide a reliable guide to the

behavior of the individual. While a few States

have established such procedures, present Federal regulations set no such requirements.

Again, little hard information is available to

guide policy on this matter.

Another viewpoint is that criminal history information is public record material that should

be made available under freedom of information principles.

Dissemination of CCH information is limited

and controlled by statute in some States and by

Department of Justice regulations. However, individual State planning, modification of the

regulations, and demonstration of compliance

has moved very slowly. The Law Enforcement

Assistance Administration (LEAA) extended the

deadline for submission of State dissemination

plans to March 1978, an extension of 2 years

from the original schedule, an indication of the

difficulties involved. Generally, the plans submitted are expressions of intent, not of compliance actually achieved.

Further information is needed to assess the

potential danger to constitutional rights, as well

as the needs and benefits of CCH discussed in

the previous section, before conclusions as to

the proper data quality standards and dissemination restrictions can be drawn.

QUESTIONS

1.

2.

3.

4.

To what extent do the records submitted

by the individual States and the Federal

Government comply with the existing

standards of accuracy, completeness, security, currency, etc., established in Title

28 CFR?

What sorts of injury to individuals can

result from the use of incomplete or inaccurate CCH information in any category

of criminal justice decisionmaking?

To what extent do these injuries occur?

What other uses of the CCH files or inquiries, such as “flagging” the names of individuals involved in activities protected

20
5.

6.

7.

8.

9.

10.

11.

12.

by the first amendment, for example,

might present a threat to individual rights

or civil liberties?

To what extent, if any, might the interstate dissemination of CCH information create or increase civil liberties problems in:

a.

b.

differences among States in definition

of crimes causing error or confusion in

criminal justice decisionmaking based

on out-of-State CCH information;

Disclosure of out-of-State information

to employers or others that would not

be permissible in the State record?

What purging or sealing policy, if any,

should be established to limit the “memory” of the CCH system for individuals

who have had no recent arrest history?

Are existing access controls and logging

requirements sufficient to control unauthorized use of CCH data?

How can the system be effectively monitored and audited to ensure that the system standards are met?

What monitoring and auditing mechanisms can ensure that actual occurrences

of injury to individual liberties will

become known to the system and to the

public?

Which local, State, or Federal programs

for handling CCH information have been

most effective in protecting constitutional

rights? How might other National Crime

Information Center (NCIC) participants

be encouraged to consider adoption of

these programs?

What changes, if any, should be considered in standards regarding listing of

arrest charges, CCH disposition entries,

investigative uses of CCH records, and

validation of CCH records to protect the

civil rights and liberties of persons whose

records are contained in the system?

What changes, if any, to existing Federal

resolutions or laws, should be considered

for protection of individual rights when

CCH information is used for preemployment or licensing purposes?

13. If the privacy act is amended to cover

criminal investigatory records, if Federal

agencies lose their sovereign immunity

protection, and/or State courts decide to

remove such immunity for State governments, to what extent will there be less

need for congressional action regarding

NCIC privacy safeguards?

DISCUSSION

A variety of concerns have been expressed regarding the effect of the CCH program on constitutional rights. The most immediate concerns

deal with the possibilities of direct harm to individuals involved in the criminal justice process through the use of CCH information to support decisionmaking. Similarly, the prospective

effects on individuals of dissemination of CCH

information for preemployment and licensing

purposes has raised concerns. These are the

main subjects discussed in this section. Less immediate civil liberties issues such as potential

long-term effects of CCH on the criminal justice

system, or the potential of the system to be

manipulated illegally are discussed under Social

Impacts (p. 44. )

CCH AND CRIMINAL JUSTICE DECISIONMAKING

Criminal history records are used by all

segments of the criminal justice community for

a variety of purposes. During the investigation

of a crime, police may examine criminal history

records of potential suspects under the belief

that a prior history of arrests for crimes similar

to the one in question, or the lack thereof, is

suggestive of the subject’s likely involvement.

Criminal histories can provide useful leads to an

investigator such as aliases and prior addresses.

After arrest, if available in time, criminal

history records are commonly used to evaluate

the defendant’s right to release on bail. In many

jurisdictions, criminal history records influence

the district attorney’s decisions as to obtaining a

felony indictment, or willingness to accept a

misdemeanor disposition. In some States, laws

specify that prior convictions raise to the felony

level a crime that otherwise would have been a

misdemeanor.

After conviction, most State laws require the

court to consider the defendant’s criminal his21
tory record in determining the sentence. Probation officers and officials in many other programs use criminal histories to assist in their

decisionmaking. Correctional officials use the

information to assist in assigning the individual

while he is institutionalized. Finally, parole

boards in some States request criminal history

records when determining whether an inmate

should be released on parole.

The speed of response needed for these different uses of criminal history records varies

widely. Response time measured in hours is

probably adequate for most purposes. Law enforcement agencies have expressed a need for

much faster response times,4 but strong substantiating arguments have not been presented.

This pervasive use of criminal history information throughout the justice system was

one of the motivating forces for development of

CCH so that the information would be available

in a timely manner, and to improve the tracking

of events in the processing of each case so that

the criminal history record would reflect the

final disposition. Following the recommendations of a Presidential Commission in 1967, 5

rapid development of State computerized criminal history programs took place. According to

the FBI, 20 States are now either full participants in the NCIC/CCH program or in the

final stages of program development.

CRIMINAL HISTORY RECORD QUALITY

The operations of the criminal justice system

impose some limitations on the quality of criminal history records. First, an offender’s record is

not necessarily representative of the behavior

which mandated the creation of (or additions to)

his record; and second, some criminal justice

agencies are more cooperative and responsive

than others in furnishing the data. Both of these

situations affect fundamental aspects of data

quality. Other important aspects would include

policies on who can enter or change data, how

can the data be changed, when data are to be

sealed, and to what extent they are sealed from

different users,

4

1bid.

‘President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free

Society, U.S. Government Printing Office, 1967.

The ability of the written record to accurately

document the past criminal behavior of an offender is poor and will remain so for the foreseeable future. First, not all of the offender’s known

offenses result in conviction. A rule of thumb is

that it takes about three arrests before a conviction is secured, because of formal and informal

diversion programs. Second, even when a conviction is secured, plea bargaining often makes

it unlikely that the charge at conviction reflects

the nature of the criminal event. And since plea

bargaining is more prevalent in urban than rural

areas, this means that a rural offender committing the same offenses as an urban offender will

probably look a lot worse on paper (or on CCH)

than his urban counterpart. On the other hand,

the charges at arrest may exaggerate the nature

of the event. The police may overcharge an individual, knowing that it will probably be bargained down to a lesser charge.

Criminal history records are often incomplete. Arrests are recorded quickly, while

dispositions are recorded more leisurely, if at all

(in some jurisdictions). Part of the reason is the

fact that the police are responsible for supplying

arrest data to the FBI, while the prosecutor and

courts have the disposition data and do not have

as strong a relationship with the FBI as the

police. Furthermore, the judiciary is a separate

branch of Government, so its cooperation in a

CCH system run primarily by and for enforcement agencies has been limited.

There is evidence that disposition reporting is

slowly improving. Certainly the intent is clear,

The LEAA regulations mandate disposition reporting within 90 days. The States are now

preparing plans setting forth their operational

procedures to comply with this requirement.

Successful implementation of prompt and complete disposition reporting is of utmost importance to any future success of CCH systems.

RECORD QUALITY DEFICIENCIES

The implementations of CCH has brought into focus a number of concerns about criminal

justice decisionmaking, most of which relate to

claimed deficiencies in some aspect of record

quality, e.g., accuracy, currency, or completeness. The most apparent of these deficiencies is absence of disposition information associated with arrest entries in the record. Because

of delays and gaps in the reporting procedures it

22
has been estimated that 50 percent of the arrest

records do not have disposition information. *

Other alleged deficiencies include partial, erroneous, and ambiguous disposition listings.

Many of the civil liberties questions regarding

CCH—in particular questions of due process—

center on the effects of record deficiencies on

criminal justice decisionmaking. The criminal

justice process is characterized by the exercise of

great discretion and bargaining at key points.

Much of this discretion is exercised informally,

and is in part influenced by the criminal history

record of individuals, In some urban areas,

more than 50 percent of those arrested by police

are screened out of the judicial process before

formal accusation; of those who do make a

court appearance, the vast majority plead guilty

in accordance with pre-arranged bargains struck

between defendants, prosecutors, and police.

(This topic is discussed in more detail in the

Social Impacts section of this report. )

Those questioning the CCH system have

argued that an individual’s prior arrests count

against him in the bargaining process even

where the arrest charges were eventually

dropped or the case resulted in an acquittal

because this information is often not contained

in the criminal history. The argument is made

that the situation is so serious that entries

without dispositions should not be permitted to

be used, even by criminal justice agencies,

unless the case is definitely known to be still

pending. Others argue that this measure would

deny highly useful information to officials who

are fully competent to understand the limitations of the data, and would result in saturation

of the system.

This debate is now being argued in the courts.

At least one major case6 is in process at this time

arguing that the State CCH records maintained

and disseminated by the New York State Division of Criminal Justice Services and supplied

by the New York Police Department have poor

*The FBI, in a recent internal study (see footnote 1)

found that less than 50 percent of the entries in their

manual criminal history file contained disposition data. A

recent sample of New York State records (see footnote 6)

showed a blank disposition column in .57.3 percent of listed

arrest events since Jan. 1, 1973.

6

Taturn, et al. vs. Rogers, 75 Civ. 2782 (S.D.N.Y. )

Plaintiff’s Pre-Trial Memorandum of Law, Sept. 9, 1977.

data quality with the consequence that constitutional rights of individuals have been violated.

Although the issues in this case are directed entirely at New York State’s own CCH system, its

outcome may have profound implications on all

aspects of interstate CCH.

This whole issue is badly clouded by lack of

information. We need to know the real extent of

quality deficiencies in both the existing manual

and computerized criminal history systems. It is

unfortunate that so little assessment of data

quality has taken place. Neither the State CCH

repositories nor the FBI have conducted the

kinds of audits that would supply this information. Nor is there much documentation other

than anecdotal evidence of the extent to which

individual rights are actually being affected by

the present system. Also, the data is not available to estimate the relative extent of undercharging (plea bargaining, etc. ) and overcharging and the conditions under which each

occur.

Standards for access and security and privacy

have been the subject of extensive debate. 7 8 9

But in the absence of quantitative information

about the weaknesses of existing practices, and

an understanding of the obstacles to their improvement, the necessary discussion of what

standards should be becomes very difficult.

PREEMPLOYMENT AND LICENSING USE OF CCH

Criminal history record information is also

disseminated for local and State employment or

licensing purposes to the extent that it is authorized by Federal or State statutes. It is estimated 10

that 20 percent of the requests for State CCH information originate from noncriminal justice

agencies. By present regulations, ” arrest data

more than 1 year old is not disseminated for

‘Search Group Inc., “Standards for Security and Privacy

of Criminal Justice Information, ” Sacramento, Calif.,

Technical Report No. 13 (Revised), January 1978.

‘Search Group Inc., “Access to Criminal Justice Information, ” Sacramento, Calif., Technical Memorandum

No. 14, October 1977.

9M. D. Maltz, “Privacy, Criminal Records and Information Systems, ” in Operations Research in Law Enforcement, Justice, and Societal Security, Lexington Books,

1976.

10Search Group Inc., “The American Criminal History

Record. ”

1128 CFR—-Judicial Administration, 20.33(3).

23
these purposes without accompanying disposition information unless active prosecution of

the charge is known to be pending. Federal

agencies authorized to obtain information for

employment background checks under authority of Federal Executive Order receive criminal

history information without restriction and

generally have access to Federal investigative

and intelligence information as well.

Individual States have their own regulations

and statutes to govern dissemination for these

purposes. The State regulations vary drastically

regarding the types of employments and licensing for which criminal histories can be used.12

Furthermore, some regulations contain procedures for deleting information not deemed

relevant to these uses of the data. As a consequence of the diversity of State regulations, it is

likely that information may be obtainable from

another State that is not permissible for use in

the inquiring State. Furthermore, information

now available for Federal agency background

checks through the FBI files might become unavailable if the inquiry is made directly to the

State of origin. Careful control and monitoring

over interstate dissemination for these purposes

may thus be required to ensure that all appropriate regulations are being met.

One member of the working group felt that

the private sector is entitled to more access to

CCH information and that denial of this access

only forces the use of illegal or roundabout ap12Amercian Bar Association, “Laws, Licenses, and the

Offender’s Right to Work, ” National Clearing House on

Offender Employment Restrictions, 1974.

preaches to obtain access.13 For example, in

Illinois, a Firearms Ownership Identification

Card (FOIC) is required for an individual who

wishes to own a gun legally. Grounds for denying an individual an FOIC include conviction of

a criminal offense. Some firms require a prospective employee to obtain an FOIC (at the

firm’s expense) as a precondition of employment. In this way, they find out if the prospective employee has a criminal record. Numerous

examples of illegal disclosure of criminal history

information by police personnel have also been

reported.

He further argues that too stringent restrictions on access by private sector employers

could make matters worse, especially in light of

the liberal access permitted Federal Government

employers. As the law presently stands, the

Department of Labor can check the record of

every clerk-typist it considers hiring, but the

Potomac Electric Power Company cannot determine if its prospective meter readers have

records of home invasion or rape; the Social

Security Administration can prevent those with

criminal records from becoming janitors, but a

small business cannot ensure that it is not hiring

a newly released embezzler as a bookkeeper.

In this view, a better balance of access is

needed and might be obtained through a less

restrictive approach to the private sector’s information needs.

13M.D. Maltz]tz, “privacy, criminal Records and Information Systems, ” in Operations Research in Law Enforcement, Justice, and Societal Security, Lexington Books,

1976.

24
FEDERALISM

Division of Authority

ISSUE

What authority should be allocated among

the units of Government to control the contemplated CCH system in terms of efficacy,

legality, and accountability?

SUMMARY

Because of the decentralized nature of the

U.S. criminal justice system and because the

generation and use of criminal history information occurs mostly at the State and local levels

of government, the States have a primary stake

in establishing standards and procedures for the

keeping and dissemination of criminal history

information. On the other hand, minimum national standards also are required for an interstate CCH system. Attempts at comprehensive Federal legislation to control the collection

and dissemination of criminal justice information have failed to produce legislation or a consensus as to how authority for this important

area of control of the system should be allocated. The lack of resolution of this issue is a

very serious obstacle to the successful development of CCH.

QUESTIONS

1.

2.

3.

4.

5.

How should the authority for establishing

dissemination constraints, and purging or

sealing requirements be allocated between

the Federal and State governments?

To what extent can control of operational

procedures, including access control and

employment standards be left to the discretion of the States?

What provisions shall be made for resolution of intergovernmental and interagency

conflicts over system control?

How best can audit responsibilities be apportioned among levels of government,

participating agencies, and representatives

of the general public?

How should authority be divided between

Federal and State governments for determination of v

sanctions?

olations and imposition of

The extent to which interstate dissemination

of CCH data presents civil liberties problems

because of the diversity in State regulations is

difficult to assess without more information on

current practices. The questions about data

quality raised regarding criminal justice uses of

the data apply here as well. Since it is required

that entries without disposition are not to be

distributed for employment and licensing purposes, the data quality questions here focus on

the clarity, accuracy, and completeness of

disposition listings.

DISCUSSION

Almost every aspect of the NCIC/CCH problem encounters difficulties resulting from the

historic, constitutional division of powers and

duties in our Federal system. This division,

while providing protection against tyranny,

corruption, and other abuses, nevertheless invites conflict, error, and confusion in the accomplishment of valid governmental purposes.

With respect to criminal justice, the foundations

of the federalism issues are:

State governments have basic jurisdiction

over law enforcement and criminal justice

within their borders, under their constitutionally reserved powers. Within that system, local governments play a strong role.

Due to the mobility of both State and Federal law violators, effective law enforcement increasingly requires exchange of information among States and between

States and the Federal Government.

The Federal Government’s superior taxing

power and its expanded functions under the

commerce clause have led to its involvement in law enforcement at local and State

levels; many an intrastate crime is a Federal

crime.

The sheer existence of the technical capability

that can speed information across existing political-organizational barriers challenges a political structure inherited from a previous era.

Organizational problems arise because a chang25
ing political environment increasingly is sensitive to the information policies of executive

agencies. More traditional questions arise concerned with the sharing of costs among State

and Federal levels of government, interstate

relationships, and the relation between Federal

and State criminal justice functions.

Given this diversity of American political and

administrative culture, the CCH system is very

ambitious when compared to other Federal

computer systems of national scope. Compared

to the Internal Revenue Service’s Tax Administration System, which administers a uniform

Federal tax code with personnel trained in accordance with uniform standards and criteria,

the CCH system seeks to coordinate the law enforcement activities of a very diverse group of

agencies, whose personnel and indeed whose

laws are very different from one another.

If it is going to work, the CCH system will require data and procedures that meet prescribed

minimum nationwide standards of quality and

uniformity. At the same time most of the basic

source records originate within local and State

law enforcement agencies. State and local governments vary in their resources, their philosophies of privacy and publicity, and their sophistication in data systems technology. Decisions

that are necessary to assure an effective nationwide system may conflict head-on with State

laws and rules governing access to criminal

justice records, the format and content of such

records, and their modification or expungement. Such decisions may require State and

local governments to adopt procedures inconsistent with or excess to their own operating

necessities. Both levels of government could be

pressured to appropriate money, install equipment, and employ personnel against their will.

Court systems, despite long-standing, cherished

traditions of independence, would have to conform to bureaucratic reporting requirements imposed by others. Some of these conflicts could

result in litigation, which would be time-consuming and which could result in over-narrow

decisions necessarily based on the issues

brought to trial in specific cases.

Many of the system management problems

will call for accommodations among States, between State and local governments, between

Federal and State governments, among Federal

agencies, and among components of the crimi26

nal justice system at all three levels. This argues

for control by a representative intergovernmental consortium, which would present its own

problems of management, funding, and oversight.

Further complexity is added by the need for

protection of civil liberties and privacy. No

governmental mechanism well-designed for

such a purpose now exists, and it may be

necessary to invent one.

The issue is complicated even further by the

apparent need for legislative oversight. The

Judiciary Committees of both Houses of Congress, among others, can logically claim such

responsibility. However, their ability to oversee

adequately a complex, sensitive, and detailed

system may be questioned, particularly when

they are compelled to turn their attention from

old and continuing responsibilities to newly

urgent problems.

State legislatures may also legitimately claim

the right to oversee the participation of their

own governments in the contemplated system.

They will be concerned with costs, operational

effectiveness, security, and protection of

citizens’ rights under their own laws.

Another aspect of control is audit. There will

be a need to review the system for fiscal integrity, general effectiveness in achieving States’

objectives, and quality of management. There

may also need to be a detailed operational

audit, using sampling techniques, of the completeness, accuracy, and currency of the data in

the file and in selected transmissions. Both announced and unannounced audits may be required. Systems users should participate in the

conceptual planning and review of such audits.

There must also be provision for audits of costs

and effectiveness.

The issue of how authority should be divided

is closely related to questions of management

and oversight and can directly affect the technical configuration of CCH. Those who see the responsibility for maintaining and disseminating

criminal history records falling primarily with

the States, for example, will argue for viewing

of CCH as many different State systems with a

need to exchange information. * This State-

‘The SEARCH Group Inc., Board of Directors has

recently adopted a position paper that articulates this

viewpoint, entitled “A Framework for Constructing an Improved National Criminal History System. ”
centered concept implies a minimum of Federal

oversight. It also would have no compelling

reason to remain affiliated with NCIC.

Some of these unresolved problems of overlapping authority in the system will be settled

only by the disposition of individual conflicts as

they come up. Others may be solvable by cooperative effort among the levels of government in

the planning process. (See The Planning Process, p.35) The question remains, however,

whether sufficient consensus on these matters

exist to permit resolution at this time.

Cost Apportionment

ISSUE

How shall the costs of developing and

operating the contemplated system be apportioned among Federal, State, and Iocal

governments?

SUMMARY

When all of the system development, data

conversion, and operating costs associated with

CCH are considered, the costs to all levels of

government have been estimated to amount to

several hundred millions of dollars over a 10-

year period. Costs of related activities, such as

building capability in State identification bureaus could considerably raise the overall expenditures that will be required to achieve a fully operational CCH system.

It has been Government policy to support the

development of CCH in part through the Department of Justice Comprehensive Data System Program (CDS). However, the great bulk of

the anticipated expenditures are operating costs

that will be incurred in the State and local criminal justice agencies. The abiIity or willingness of

the States and local jurisdictions to provide

these operating funds will in large part determine the actual rate at which a nationwide CCH

system can become operational.

The issue of equity in funding is particularly

knotty. Some States will perceive a high benefit

from the system; others may feel that they are

burdened with excessive expenses to provide information to other States and Federal agencies.

Finally, some argue that the costs of complying

with regulations imposed by higher levels of

Government, whether State or Federal, should

be subsidized.

Since funding policy will have a crucial role in

the rate and success of CCH implementation, it

is an issue that should be dealt with at this time.

QUESTIONS

1.

2.

3.

4.

5.

6.

What will it cost to develop a satisfactory

system covering all States?

What are estimated annual operating costs?

On what basis should development and

operating costs be apportioned among the

three levels of Government?

To what extent should funding plans take

into account the variation in capabilities

and resources among State and local governments?

To what extent should Federal funding be

provided to State and local agencies to

cover operating expenses which these agencies feel are federally mandated?

What advantages, if any, would a system

of user charges offer in the management of

this system? What charging mechanisms

might be employed?

DISCUSSION

The very modest initial conversion costs estimated in the FBI memoranda are trickles that

will lead to a flood of expenditures. 14 Any local

jurisdiction participating in the contemplated

system will have to provide for complete, timely

reporting by all components of the criminal

justice system; an information system fully congruent with the State and Federal systems; and

sufficient trained staff to assure reliable operations and to maintain data quality to established standards. The State agency concerned,

whether it is a criminal justice planning and

coordinating agency or a bureau of investigation, will also have to maintain a congruent system, including thoroughly effective data collection and follow-up procedures. To the extent

States handle data and reporting matters

through sub-state regional criminal justice

14U. S. Senate. Hearings: Criminal Justice Data Banks,

Subcommittee on Constitutional Rights, Committee on the

Judiciary, 1974, volume 11.

27
organizations, system modifications will have

to be made at that level. A 1975 study15 f o r

LEAA concluded that the 10-year development

and operating costs for CCH would be $361

million of which $241 million will be incurred in

the participating States. This report also

presents detailed models of the processing of

CCH information and estimates transaction

costs. However, the analysis assumed away a

number of State costs such as development of

full State identification bureau capabilities,

Thus the total dollar cost will be much higher.

Criminal justice expenditures in total are met

60 percent by local governments, 27 percent by

State governments, and 13 percent by the Federal Government (1975 figures). Such an intergovernmental division, however, is probably a

poor guide for financing system developments,

for the system improvements in the past decade

are attributable in large measure to LEAA

money, particularly at the local level. Typical

city governments claim, usually with good

evidence, to be hard-pressed financially, and incapable of financing improvements in information systems. They and their State governments

will look to the Federal Government to pay the

costs of the contemplated system. It can be

argued on the other hand that State and local

governments should pay a significant share,

despite fiscal strains—if they have a stake in the

game they will play better than if they do not.

Yet this is a time when some fiscally troubled

local governments are unwilling to put up the

“match” money required to obtain some Federal

grants.

Significant implementation costs for participation by all States will be incurred even if the

smaller States are not forced to fully automate

their criminal history records.

If the State and local governments are required to participate in financing the system the

strain of finding “new money” for this purpose

or of cutting back other expenses to pay for it

may lead to nonparticipation or inadequate participation in the system. On the other hand, system operations could well be handicapped if it is

looked at as a “big brother pays all” operation—

Is Institute for Law and Social Research, “Costs and

Benefits of the Comprehensive Data System Program, ”

Washington, D. C., June 197.5.

in a nation where States are in many respects

sovereign and where crime control is a local responsibility.

A difficult subissue which must be explored in

an assessment of CCH, is how to assure equity

in interstate funding in relationship to benefits

received. States vary as enormously in the sophistication of their criminal justice information

systems as they do in geography, population,

and finances. The “have-nets” will argue that if

the Federal Govrnment wants them to participate in the contemplated system it should

pay the developmental costs. The “haves” will

contend that a disproportionate share of Federal

money should not go to States with underdeveloped systems. The States themselves have a

similar problem in apportioning funds to local

governments which vary greatly in systems development, as in their own resources. And

again, the problem is complicated if planning

and financing are accomplished through substate regional organizations.

Furthermore, States which expect great benefits from the system may be more willing to

shoulder the costs than States not similarly situated. It is apparent that there are enormous

regional differences in the volume of interstate

criminal movements. Some States, such as California and New York are the unfortunate victims of large numbers of criminals immigrating

from other States; significant numbers of criminals leave these same States to prey in other

States. Yet States like Vermont, New Hampshire, and South Dakota, do not experience significant migration of criminals. Put in other

words, the FBI reports large regional variations

in arrest activity with 8 States accounting for 62

percent of the arrests (Director of FBI, letter

dated April 16, 1976; and Hearings, S. 2008, p.

306). The FBI believes there is a high correlation

between arrest activity and future use of CCH

message switching.

Under a decentralized CCH system, the States

that are large, automated, and characterized by

transient populations would bear the largest

burden of out-of-State inquiries. If out-of-State

inquiry volume is significant compared to the

inquiries from within the State, questions of priority of service will arise, and the costs of service to out-of-State inquiries will likely be seen as

an inequitable burden by the State legislature.

Pressure for Federal subsidies or interstate

28
charges to cover these costs would be likely to

develop.

It is apparent therefore that States differ in

terms of perceived benefits, and will continue to

differ on the distribution of costs between

Federal and State levels, and among the States

themselves.

Generally, it is assumed that costs will be met

directly through appropriated funds—from

whatever levels of government. It may be feasible and desirable, however, to impose user

charges on agencies (at whatever level) seeking

information through the system. Such charges

could serve to relieve inequities in the system

due to disproportionate demands on the various

States. Charges would also provide a mechanism for limiting the volume of system traffic,

as users would not see CCH information as a

free good. However, the differences in ability to

pay might result in less affluent agencies being

discouraged from using the system.

The very process of seeking legislative approval and appropriations at possibly all three

levels of government will lead to public debate

over costs, effectiveness, controls, civil rights,

privacy, and the entire range of issues.

ORGANIZATION, MANAGEMENT, AND OVERSIGHT

Management Responsibilities

ISSUE

Considering the decentralized nature of the

criminal justice system, what sort of management structure is required for CCH?

SUMMARY

It is generally assumed that the FBI runs the

NCIC/CCH system and has full responsibility for

its activities. Actually the FBI’s role is very

limited since it must deal with the individual

States as autonomous entities. The responsibility for accuracy, completeness, and currency of

records lies with the States as does the responsibility for an annual audit. Both the FBI and

State criminal history repositories have tended

to view themselves as conduits for records provided to them by others. Thus, the chain of

management responsibility is weak and ambiguous.

This loose, decentralized, assignment of responsibilities is in part a direct consequence of

our decentralized criminal justice system and a

persistent national concern over concentrating

too much power in a Federal law enforcement

agency. On the other hand, serious questions

arise about accountability in such a decentralized system, that would apply no matter what

agency is assigned the responsibility for system

management.

This question was also addressed under Federalism. (See p. 25. )

QUESTIONS

1.

2.

3,

4.

What authority should be allocated among

the units of government to control the CCH

system?

To what extent would the centralization of

management lead to excessive Federal control over State and local criminal justice activities?

What would be the advantages of separating CCH from the NCIC system?

Is there a need to designate a single agency

to have overall responsibility for the administration of the CCH system? If so,

what responsibilities should be assigned to

the agency responsible for managing the

CCH system to ensure and validate CCH

data quality?

a. What responsibility should be placed on

the system management agency to ensure

that data disseminated through the CCH

system is used properly?

b. What responsibility should be placed on

the system management agency to report to

Congress and the public on the “health” of

the system?

70

36-738 0 -78 - 5
c. What authority for audit and monitoring

of data submitted by the States and Federal

user agencies is required to satisfy these

responsibilities?

d. What sanctions should be provided for

violations of standards or procedures?

e. What appeal mechanism should be established?

f. What would be the merits of restructuring the Advisory Board for CCH to include

representation of noncriminal justice public

interest groups?

g. What new Federal legislation, if any,

would be required to provide authority for

the system management agency?

DISCUSSION

DECENTRALIZATION OF MANAGEMENT

The responsibility for interstate CCH dissemination is distributed rather widely at present.

The FBI runs the NCIC central facility and is

responsible for the NCIC procedures governing

access to the system. The LEAA has established

regulations on collection, storage, and dissemination of criminal history information that

apply to all criminal justice agencies receiving

LEAA funds directly or indirectly—covering

essentially all participants in NCIC/CCH.

These regulations in turn call on the States to

submit a Criminal History Record Information

Plan setting forth each State’s CCH operational

procedures. As of the latest revision of the

regulations, these State plans must be submitted

by March 1978. The regulations are explicit in

allowing a wide variation among States in their

dissemination policies including freedom to

limit dissemination of both conviction and nonconviction information as each State sees fit.

The existing Federal law and regulations also

place the responsibility for annual audit of the

operation of every State’s system with each

State and limit the Federal involvement primarily to approval or disapproval of each State’s

plan. On the other hand, considerable concern

about the need for congressional oversight and

Federal supervision of the system has been expressed in Congress in numerous hearings16 17

on the subject of criminal justice information,

resulting in a number of bills attempting to

establish Federal standards and procedures to

control collection and dissemination of such information, as well as providing for Federal audit

authority.

The Federal Government’s role in the day-today management of the NCIC/CCH system is

therefore somewhat ambiguous, and neither the

FBI nor the States are sure what their responsibilities are. The management solution to this

dilemma may require imagination and new

forms of Federal/State cooperation.

ROLE OF AN ADVISORY BOARD

The primary operational link between the FBI

function as NCIC system manager and the State

participants is through the NCIC Advisory

Policy Board. The decentralized nature of the

system’s regulations argues for a strong accountability of the central operation to the users of

the system. Yet the historical experience with

the use of advisory boards as the formal liaison

between system users and the system executive

suggest that this arrangement provides for only

weak accountability. 18

Typically, members of the advisory board are

not familiar with the operational intricacies of

the computer system, and often are not familiar

with the day-to-day system failures which

become apparent to lower level, ultimate endusers. Typically, the advisory board meets infrequently; its members are only engaged parttime in monitoring the system’s activities. Moreover, the operational staff of the computer system is responsible to the executive director, not

the advisory board. Therefore, advisory boards

have little knowledge or authority with respect

to operation of the system.

16U.S. Senate, Hearings: Subcommittee on Constitutional Rights, Committee on the Judiciary, S. 2542, S.

2810, S. 2963, and S. 2964, March 5, 1974. 93rd Congress,

2d session.

“U.S. Senate, Hearings: Subcommittee on Constitutional Rights, Committee on the Judiciary, S. 2008, S.

1427, and S. 1428. July 15 and 16, 1975. 94th Congress, 1st

session. “Criminal Justice Information and Protection of

Privacy Act of 1975. ”

“Kenneth C. Laudon, Computer-s and Bureaucratic

Reform, New York: Wiley, 1974.

30
For all of these reasons the advisory board

method of attaining accountability to users is

structurally weak. Instead of representing

ultimate users to an executive, they are just as

likely to function in reverse to represent and explain executive policy to lower level users.

A second issue of accountability raised by the

existing NCIC Advisory Policy Board concerns

the question of defining users: who are users

and how shall they be defined? The current arrangement recognizes users as those directly involved in the creation of the data base and who

ultimately use the data base. This confines the

definition of users to the criminal justice community, and within that community, it is largely

law enforcement agencies who are represented

on the Advisory Policy Board. The historical insistence on law enforcement agencies for complete control over their information processes is

reflected in the existing definition of user.

But CCH is not primarily for law enforcement

users. Whether or not CCH continues to be part

of NCIC, some means of strengthening the advisory role of the rest of the criminal justice

system for CCH is needed. Furthermore, additional participation may also be desirable.

Several local criminal justice agencies (Alameda

County, California’s CORPUS System, for example) have appointed citizens not employed by

criminal justice agencies to their advisory

boards. Their experience has been that inclusion

of such groups is initially uncomfortable, in that

issues that might otherwise be avoided in a clublike atmosphere of like-minded individuals are

forced onto the board’s agenda. But, on the

other hand, generally acceptable solutions have

been found that have stood the test of the inevitable public scrutiny.

Thus, it may be fruitful to examine alternatives to the present advisory board. At the

opposite extreme would be an independent Executive Policy Board with substantial authority

over policy decisions and ultimate responsibility

for system operations. There are many alternatives between the extremes which might be explored in a future assessment.

Oversight

ISSUE

What oversight mechanisms are needed to

ensure that the CCH system will operate in

the overall public interest?

SUMMARY

The history of computer systems parallels

that of other institutions; they routinely fail to

record and analyze their failures. In large

systems it is difficult to assign responsibility for

system shortcomings. Exercising effective oversight over such a system challenges the intellect

of experts and the patience of ordinary citizens.

The purpose of oversight is first, to assure

political executives, managers, Congress,

courts, and the public that the system is operating within boundaries defined by Congress.

Second, oversight mechanisms can alert Congress and the public to system problems which

emerge in the course of operation.

Oversight is closely linked to system audit

since audit is one of the strong mechanisms

available for disclosing system problems. The

present NCIC regulations do not provide for

Federal audit of NCIC operation. Beyond Privacy Act reporting requirements for system uses

and new systems involving personal records, no

public disclosure of system operations is mandated. Therefore, it is difficult to believe that

there is adequate information available for effective executive branch, congressional, press,

or public oversight\ of the system’s activities.

Justice Department and FBI officials, however,

believe this problem is met by public relations

activities for purposes of educating the public

through speeches, lectures, films, and invited

public observance of meetings of the NCIC Advisory Policy Board.

Among the mechanisms which could provide

Congress with additional information by which

to judge system operation are mandated management reports on system operations and ran31
dom audits of CCH files and transactions by an

external group of auditors, such as the GAO.

However, additional legislative authority may

be required to provide for audit and access to

records held by State or regional criminal

history repositories.

QUESTIONS

1.

2.

3.

4.

5.

What provisions should be made for legislative oversight, apart from normal Federal

and State appropriation processes?

Is establishment of a special legislative

watchdog agency for this purpos e

justifiable?

What monitoring and reporting procedures

regarding system operation and audits are

required to allow effective congressional or

public oversight?

What audit mechanisms should be established for the system?

What further legislative authority, if any, is

required to support audit requirements?

DISCUSSION

The history of computer systems parallels

that of other institutions; they routinely fail to

record and analyze their failures. A survey19 of

the American Federation of Information Processing Societies conducted in 1971 found that 34

percent of the American adult public had problems in the recent past with a computer. Most of

the problems related to computer billing errors.

Yet a visit to any of the major credit card companies in the United States and Canada would

find none had ever analyzed why the errors occur.20 The attitude is widespread that errors

simply don’t occur, if they do occur, they are

too insignificant and random in character to

worry about. Errors are commonly attributed to

“human problems, ” not system design. Rarely is

it publicly recognized that system errors are frequent, and that they are systematic, related to

system design and corporate cost-decisions of

senior management.

19 American Federation of Information PrOCt?SSing SOCieties, A National Survey of the Public’s Attitudes Towards

Computers, Montvale, N. J., 1971.

20Theodore Sterling and Kenneth C. Laudon, “Humanizing Information Systems, ” Datamation Magazine,

December 1976.

32

In large systems it is increasingly difficult to

find individuals responsible for system errors.

Exercising effective oversight over such systems

challenges the intellect of experts and the patience of ordinary citizens victimized by poor

systems.

The present FBI message-switching plan21

does not clearly specify oversight mechanisms.

The purpose of such oversight: 1.) to assure

Congress and the public that the proposed system is operating within boundaries defined by

Congress; and 2.) to alert Congress and the

public to system problems which emerge in the

course of operation.

The FBI plan suggests two internal audit

mechanisms. One is an internal audit team

“which will travel to the States to work with

State representatives to ensure that the State is

complying with established rules and procedures.” Secondly, routine reports are mailed

to each State of CCH records deleted from the

CCH file by the FBI which, presumably, States

can check against their own records and inform

the FBI of errors. The proposed internal audits

do not authorize public disclosure of system activity or system errors and difficulties. Therefore, it is difficult to believe these internal audits

would allow effective congressional or public

oversight of the system’s activities.

Assessment of the NCIC/CCH plan should

consider if the proposed internal audit

mechanisms are sufficient to permit effective

oversight of the system’s operation by Congress

and/or the public. The assessment should consider alternative audit mechanisms which may

provide Congress with additional information

to judge system operation. Two approaches

seem possible here.

First, a management report on system operation with specific categories of information

specified in advance by Congress. Such a report

would, of course, include tallies of routine system activity, e.g., numbers of cases on file, participation levels of States (inquiries and submissions), etc. More important, the report should

account for system irregularities, errors, and

abuses. A report of legal actions against the FBI

21U.S. Senate. Hearings: Criminal Justice Data Banks,

Subcommittee on Constitutional Rights, Committee on the

Judiciary, 1974, volume II. p. 992.
or State CCH repositories involving the

NCIC/CCH file, an account of internal audit

results concerned with data quality, confidentiality and security. The question of data accuracy seems especially important here. In light

of the FBI approach to the CCH records, that,

basically, it has custody of State records, it appears that, for puposes of auditing, the FBI

would in practice construe “accuracy” as the

degree to which FBI and State computer files

agree. * But equally, if not more important, is

the extent to which CCH files agree with local

police arrest and court disposition data.

A second possible congressional oversight

measure is a random audit of both NCIC/CCH

and State CCH files by an external group of

auditors such as the General Accounting Office

(GAO). Banks are routinely required to file such

reports, and in certain circumstances are subject

to Federal audits on demand. If criminal records

are thought to be as important as bank records,

if the potential for abuse is large, then such a

Federal audit is in order.

However, Federal legislation may be necessary to provide the GAO with adequate authority to carry such an audit. In a letter22 to the

Senate Subcommittee on Constitutional Rights,

Committee on the Judiciary. The Comptroller

General advised:

we believe explicit access to the necessary

criminal history data should be provided to our

office in this legislation because of the sensitive

nature of the data involved. We also need access

to the records of all non-Federal criminaI justice

information systems subject to the legislation for

the purpose of evaluating the Attorney General’s

or the Federal Information Systems Board’s

operations under the legislation. An explicit

statement of congressional intent regarding this

matter should preclude future executive agency

reluctance to allow us access to documents we

believe we must review to properly discharge

our responsibilities. ”

*According to the FBI, for their purposes, “the accuracy

of a CCH record is based upon the original source document, i.e., the fingerprint card submitted by the arresting

agency, conviciton data submitted by the courts and confinement data submitted by the corrections facility. The

source document is the basis upon which the CCH record is

prepared and submitted and remains in the custody of the

original agency for ultimate verification if required. ”

22Federal Bureau of Investigation, “National Crime Information Center—Proposed Limited Message-Switching

Implementation Plan, ” April 14, 1975 (Revised).

Managing Agency

ISSUE

What are the requirements for an agency to

manage the CCH System?

SYSTEM

By some standards, the FBI is uniquely qualified to run the CCH program; they have the advantage of the cooperation and respect of law

enforcement agencies throughout the country;

they have an extensive fingerprint identification

function which is necessary to support effective

use of CCH where identity is in question; and

the transfer of CCH to some other Government

agency might be viewed with some concern by

the law enforcement community. By other

standards, and in light of changing public attitudes towards privacy, civil liberties, and

governmental controls, the FBI is placed in a

position of great conflict of interest in bearing

these records management responsibilities in

addition to its primary investigatory responsibilities and its responsibilities for other noncriminal records. An argument can be made that

higher public confidence would be attained by

placing CCH operations in a more neutral

agency.

The responsiveness of FBI management to the

needs and priorities of the State and local criminal justice agencies is also in question. Some feel

that NCIC is at a disadvantage since it must

compete for priority with internal FBI data

processing applications because it is run, by and

large, as an internal FBI operation. The NCIC

Advisory Policy Board is supposed to provide

guidance to the FBI Director on the relationships

of NCIC with local and State systems. It has

been suggested that the Board could carry out

those functions better if it were given a more

direct role in setting system priorities and direction.

QUESTIONS

1. To what extent, if any, do the FBI’s responsibilities as an investigatory agency conflict

with its responsibilities for the maintenance

of noncriminal files, records of criminal

history, and the production of criminal

statistics?

33
2.

3.

4.

5.

6.

7.

8.

9.

10.

To what extent, if any, would separation of

these functions into relatively autonomous

organizations reduce the potential for

abuse of power?

Does the investigatory nature of the FBI inhibit individuals in the exercise of their

rights to examine and challenge information in their files?

To what extent, if any, does the FBI’s extensive identification capability argue for

keeping CCH organizationally within the

FBI?

To what extent, if any, does the respect and

cooperation afforded the FBI by law enforcement agencies throughout the country

give them important advantages as CCH

system manager?

When all of NCIC is considered, what additional advantages of FBI operation come

forth?

Could the FBI’s management of CCH be

more responsive to the user community?

Is NCIC in conflict with internal FBI data

processing requirements with regard to

priority and budget to the disadvantage of

NCIC users?

Is there a need to increase the authority of

the NCIC Advisory Policy Board to make

it independent of the FBI?

What advantages and disadvantages would

be associated with placing management

responsibility for CCH in: another part of

the Department of Justice; a congressional

board or corporation; or an entity established by a consortium of States. What

other organizational options are feasible?

DISCUSSION

Currentl y the NCIC (which includes eight

other files besides CCH) is organizationally

located within the FBI and operates much as a

division of the FBI whose director is responsible

to the Director of the FBI. There is an Advisory

Policy Board composed of 26 members, 20 of

whom are representatives of local, State, and

regional users, and the other 6 members are appointed by the FBI. The Advisory Policy Board

reports directly to the Director of the FBI.

The historical experience in the United States

is that law enforcement agencies demand control over their investigative and other information handling procedures. Unlike other agencies

at State and local levels, such as welfare, health,

employment, and other information gathering

State agencies, police, and to a lessor extent the

other criminal justice agencies, have vigorously

guarded against the intrusion of civilian oversight, handling, or control over law enforcement information. During the early computer

years, and continuing to the present, this demand for near complete autonomy and total

control has meant computer operators, even

programmers, were required to be employees of

law enforcement agencies. The demand for autonomy and control by law enforcement agencies in the handling of criminal information was

generated in part by their desire to ensure the

timely availability of the information. But it has

also reflected a broader societal concern that

said, in effect, only the police would be trusted

with this information.

There are a number of reasons why both

public opinion and the opinion of experts have

begun to challenge the notion that law enforcement agencies (particularly the FBI) should be

solely entrusted with the responsibility of

gathering, storing, and retrieving criminal information. There has been (and likely will continue to be) a change in the political environment: recent history suggests that the FBI and

other law enforcement agencies have used information systems (both manual and automated) for the pursuit of political goals.

The changing political environment has

caused many to wonder if there can be sufficient

public acceptance of the FBI’s role as developer

and manager of a national message-switching

capability for criminal histories. If, as the FBI

proposed, the CCH message-switching capability is added onto the current FBI-NCIC operation, what will prevent future misuse of the

system? How will Congress exercise control and

oversight, and how can such a system be made

accountable to both Congress and the public?

These concerns, which essentially involve

questions of political trust, are relevant to

organizational issues because some ways of

organizing the proposed message-switching

capability may be efficacious from the point of

34
view of control, oversight, and accountability,

than other forms of organization.

A second set of concerns argues for serious

consideration of the organizational location

question. It has been argued that the FBI is

burdened with too many contradictory—or at

least conflicting—responsibilities. The ‘FBI is an

investigatory agency which also bears a heavy

responsibility for the maintenance of criminal

records, stolen property records, and the production of criminal statistics. It is also involved

in a number of programs involving training of

State police officials, maintenance of an extensive forensic laboratory, and significant local

aid programs.

A widely respected principle of organization

suggests that unique functions (like investigation as opposed to criminal statistics) be embedded in specialized and relatively autonomous social units. Separation of the CCH

system from FBI management would have

serious implications without doubt. Firstly,

there are the operational problems that may be

incurred by organizational separation of CCH

from the fingerprint identification services of

the FBI. Close technical coordination with the

rest of NCIC would have to be maintained to

prevent awkward and expensive interface problems for the users (unless all of NCIC were

moved to other management). The benefits of

the FBI’s Iong involvement and rapport with

local law enforcement agencies would be lost.

Perhaps most important, the implied criticism

and official endorsement of various group’s

suspicions of the FBI might have very high

political costs. Nevertheless, because of the fundamental issues discussed above, other management structures should be examined.

The alternatives considered need not be

limited on the basis that NCIC requires law enforcement management. If the system is regarded as a utility to the criminal justice system

and the communities which it serves, the alternatives of control might be considerably

greater. Some readily apparent alternatives are:

the criminal information function might be continued as a responsibility of the FBI; it could be

separated entirely from the FBI and organized as

an autonomous division within the Department

of Justice; it might be organized as a congressional board or corporation; and finally it could

be developed as a consortium of States.

The relevant criteria on which to judge these

or other organizational alternatives would include the following: degree and likelihood of effective accountability, oversight, and responsiveness of the criminal justice information

process; convenience of funding; and appropriate division of authority between States and

the Federal Government.

THE PLANNING PROCESS

Participation in Planning

ISSUE

How can the needs and interests of the

various levels of Government, the law

enforcement-criminal justice community

and other stakeholder groups best be

accommodated in the planning and design

of the contemplated system?

SUMMARY

The Justice Department is now in the process

of developing a blueprint for CCH. It is anticipated that this blueprint will present a new proposal for decentralized CCH, and will include a

plan for telecommunication,

However, the essence of the CCH system is

that the primary sources and users of the data

are the State and local law enforcement and

criminal justice agencies. The history of CCH

development has shown the importance of the

States’ participation in the planning process. It

is questionable that a blueprint for a workable

system can be created without their playing a

direct, perhaps even principal role in the planning. This should be through a process which

includes and integrates the views of a broad

cross-section of interest groups and categories of

citizens and decisionmakers in Government and

35
elsewhere in society who will likely be affected

by the future development and use of the CCH

system and related information systems.

The nature of the information in the CCH system has raised public concern and debate about

privacy and due process. Special interest groups

and others have had the opportunity to express

their views at several congressional hearings.

But there has not been any mechanism for involving these groups in the planning process.

Such involvement may be necessary to the

development of a workable system,

Also to be considered in the planning process

should be the public at large. It would be valuable to disseminate information on the proposed

CCH system and to assess the views of the public through various forms of citizen participation.

QUESTION

1.

2.

3.

4.

5.

To what extent should the Federal Government dominate the CCH planning process?

How can rich States and municipalities,

poor States and municipalities, and advanced and backward criminal justice systems be properly represented in the planning and design process?

Has there been any citizen or public interest

group participation in the development of

CCH?

What participation by citizens or public interest groups might be appropriate in future

CCH planning?

What mechanisms for informing the publi

about CCH and obtaining participation in

planning might be appropriate in the

future?

DISCUSSION

Two major themes have reappeared throughout this report. Firstly, the State and local agencies of the criminal justice system; police,

courts, prosecution, and corrections, are the

primary users of criminal history information in

the system. They are also the basic source of the

data entries that make up these records. Furthermore, the serious problems of data quality

plaguing criminal justice recordkeeping can be

solved only by the efforts by these agencies. The

36

second theme has been that the CCH system

cannot be considered the exclusive province of

the criminal justice community. The general

public has a direct interest in it because of the

very nature of the data and its use in decisionmaking for criminal justice, employment, licensing, and other noncriminal justice purposes

both public and private, as well as the access afforded to the press in varying degrees by the

various States.

At the Federal level, there are three additional

stakeholders. The FBI, as operator of NCIC/

CCH, has a clear interest. The LEAA, with its

major Comprehensive Data Systems Program

for stimulating and funding the development of

a State and local information system infrastructure, and its responsibilities for promulgating

and ensuring compliance with regulations for

criminal justice information systems is an additional stakeholder. In addition to these two

components of the Department of Justice, there

are the numerous Federal agencies with law enforcement powers who have an interest in the

system as users.

With all of these diverse stakeholders, it

should be obvious that the type of process

employed for system planning, system modifications, and decisionmaking can have a very

significant impact on the acceptance of the

system, on the speed and smoothness of its implementation, and on its ultimate viability.

At the present time, the primary mechanism

for system planning is the “blueprint” activity in

the Department of Justice. This effort is being

conducted by Justice and FBI staff, although it

has had the benefit of visits to numerous State

and local user agencies. * However, any plan, no

matter how well founded, is bound to have controversial elements. Therefore, some thought

should be given now as to the extent to which

other stakeholders should be included as principals in this planning process and as to the

nature and extent of a ratification process

among the stakeholders will be required.

The question of participation by stakeholders

arise from another consideration as well. As discussed under the section on Transition Planning

● See appendix B for a summary prepared by the Justice

Department of the viewpoints expressed by State officials

during these visits.
(see p. 40.), there will be a long transition path

between today’s criminal records system and an

eventual smoothly functioning CCH system.

Numerous pitfalls are inevitable along this path

and modifications in system operation, procedures, and design, perhaps large ones, are inevitable. There appears to be a need therefore to

have a continuing planning process rather than

a one shot “blueprint. ” The nature of this process, and its relationship to the operation of the

system also needs further examination.

Technical Alternatives

ISSUE

What technical alternatives to the proposed

message-switching system might offer advantages when the full range of system requirements and social concerns are considered?

SUMMARY

The need for message traffic between States is

inherent in any system based on decentralized

CCH files. The proposed FBI message switching

would provide telecommunications for this message traffic in a manner that would route all

traffic through a “hub” under control of the FBI.

This approach would integrate the CCH traffic

into the existing NCIC communications network and would provide the service at no

charge to the States. However, the messageswitching concept has raised a furor, in part

because of concern that the resulting CCH system would be equivalent to a national data bank

even though the files are physically decentralized, and that control of the message switch

would give the FBI excessive control over the

user agencies.

Alternative approaches to managing message

traffic are available that might relieve some of

these concerns, while raising questions of their

own. Grouping of States for CCH exchange into

a number of regional networks rather than one

national network may also have some advantages that should be explored.

The need for positive identification of individuals before criminal history records can be

applied with confidence to criminal justice decisionmaking has been discussed since the early

days of project SEARCH. At least one State,

New York, requires positive fingerprint identification and has set up an intra-state facsimile

network to facilitate identification within 3

hours. Projection of this requirement nationwide could lead to extensive additional telecommunications requirements. New technology offers some promise, and needs further exploration.

QUESTIONS

1.

2.

3.

4.

5.

6.

7.

8.

To what extent could the message-switching system be designed to prevent or detect

illicit monitoring of CCH message traffic

by the message switch operating agency?

To what extent might the system be vulnerable to monitoring or tampering with CCH

files by unauthorized persons; requiring additional physical and data security

measures?

What are the advantages and disadvantages in cost, operational characteristics, and auditability of a multinode distributed data network which would not require all messages to be routed through

Washington?

What advantages and disadvantages, if

any, would regional systems have with

regard to economy, ease of management,

responsiveness to local needs, protection of

privacy and accountability and resolution

of conflicts between units of Government?

Might a regional configuration obviate the

need for a national pointer index by permitting economical broadcast inquiry to the

regional systems?

If some smaller States chose to remain with

manual criminal history records, would

regional or national computerized pointer

to these records adequately serve the needs

of the other States?

How soon would the fingerprint and facsimile technologies be available for criminal justice use in a cost-effective manner to

satisfy the identification requirements accompanying CCH?

What are the likely changes in cost of these

technologies with time?

37

36-7380-78 - 6
9.

10.

What will be the effect of these technologies

on the optimum national fingerprint system

with regard to centralization or decentralization?

What consideration, if any, should Present

CCH system planners give to these technologies?

DISCUSSION

There is no doubt that present technology in

data processing and communications is adequate to meet NCIC system performance requirements. Furthermore, over the past 1 0

years, the cost of data processing technology

has been decreasing continuously. In particular,

the technology associated with digital communications has undergone major changes

which make the concept of distributed data

processing more realizable from a cost point of

view.

However, it is not so clear that present technology and system design and development

tools and techniques are able to ensure adequate

controls and protection to ensure the confidentiality of the information as it passes through

the system, is stored on tapes and discs for rapid

access, or is archived for historical purposes.

At this time, when the alternatives for implementation of CCH are being re-examined, some

time should be given to looking at the possibility that newer technology could provide a

more effective means of meeting the systems requirements or relieve some of the serious problems of social concern about the system.

MESSAGE SWITCHING

Message traffic between NCIC user agencies

is a fundamental aspect of the system. In addition to routine administrative traffic, there are

two important sources of operational message

traffic between NCIC user agencies. The first is

concerned with validation of NCIC “hits. ” For

example, if a routine NCIC inquiry about a person reveals that the NCIC wanted person file

lists him as the subject of an arrest warrant held

by the Chicago Police Department, the inquiring agency must contact the Chicago PD directly to determine if the warrant is still valid before

it can take action. Rapid and direct communications for this purpose is obviously necessary and

can minimize the likelihood of a stale or inaccurate record leading to an improper action on

the part of the recipient agency. A second source

of message traffic between user agencies is associated with any concept of decentralized CCH,

in which criminal histories on file in one State

must be communicated in response to inquiry

from another State. These messages are presently handled either on the National Law Enforcement Telecommunications System

(NLETS), by mail, or by direct telephone communication.

The FBI’s proposed Limited Message-Switching Plan would provide for transmission of

these types of messages over the NCIC telecommunications network in addition to the current

traffic of messages transmitted to and from the

NCIC files. The term “message switching” refers

to the routing of messages between user criminal

justice agencies by means of the NCIC communications network and its central computer.

The communications network can be viewed as

a wheel with the FBI computer as the hub and

the communications lines leading to each of the

States as spokes. Transmission of data messages

between agencies over this network therefore requires transmission from the inquiring agency

to the hub and then retransmission to the addressed agency. Replies would operate the same

way. Use of the NCIC communications network

in this fashion could be a rapid and economical

way of managing the system’s message traffic.

Although the message-switching approach to

data communications is becoming quite common, it has encountered potent opposition when

applied to the NCIC situation. One primary

reason for this opposition is concern that the

FBI, in managing the message switch, would obtain excessive control over the user agencies and

an opportunity to monitor the traffic for political purposes. This opposition is also fed by a

fear that message switching would provide the

capability of integrating CCH data held by the

States for purposes not intended for the system

and that consequently CCH could become an

uncontrollable national data bank. In this

respect message switching for NCIC has become

associated with more

about the creation and

banks in our society.

‘generalized concerns

abuse of national data

38
The choice of technological configurations for

the CCH system can have a very strong interaction with the organizational and social architecture of the system. The centrally controlled features of the proposed message-switching plan

are inextricably linked with the organizational

assumption that the system is to be operated by

the FBI and funded by the Federal Government.

Other technical approaches to managing message traffic between users may be feasible that

would not require traffic between States to be

routed through a central hub, with its overtones

of Federal control. At the same time, such a configuration would be likely to place more responsibility on the States for traffic logging and for

identifying and correcting errors in the CCH index. Also, removal of the Washington hub for

message traffic would tend to focus oversight attention towards the States.

With all of these interactions as well as considerations of security and economy in mind,

alternative technical approaches to message

switching should be explored.

ALTERNATIVE SYSTEMS CONFIGURATIONS

Three general configurations for a “national”

CCH system can be contemplated. On one extreme is the centralized data base; on the other,

the completely decentralized system in which

record segments, identified from a central index,

are collected from the various States and assembled at the site of the inquirer. In the middle is

the 1975 FBI proposal of State-held records on

single-State offenders and centralized records on

multi-State and Federal offenders, all controlled

through a centralized index.

The centralized data base concept is the one

presently in operation. Its deficiencies are well

demonstrated. It requires complete duplication

of records at the central location and a means of

maintaining their currency in addition to the

maintenance of the State files. The States lose

operational control of the dissemination of their

data. For both political and economic reasons,

many States have not joined the national

system.

The completely decentralized system would

leave all criminal history records in State repositories with only Federal offender records and a

pointer index at the national level. Local criminal justice officials argue that the State is best

qualified to interpret information on offenses

occurring within the State, and consequently it

is the most appropriate and effective repository

for such records. Furthermore, decentralization

would retain for the States much more effective

control over the dissemination of records than is

possible with a centralized system.

On the other hand, the fully decentralized

system with centralized message switching

would have the maximum amount of, and expense for, message traffic of all alternatives.

The middle ground involving centralization

of multi-State offender records has the potential

advantage of reducing the amount of message

traffic as compared to the fully decentralized

concept. However, it also partakes of the disadvantages of the fully centralized system discussed above.

A concept of regional sharing of information,

with regional criminal history repositories interconnected in a national system, appears to have

few, if any, advocates at the present time. However, if criminal activity has a regional character, as the fragmentary data available suggests,

then suitably chosen regional repositories would

find that most inquiries are intraregional. Most

inquiries to the national pointer index would indicate no out-of-region record, and national

message traffic could be significantly reduced.

Existence of regional repositories might also

benefit smaller States that otherwise would be

reluctant to computerize their own records.

The political, organizational, administrative,

and economic dimensions of regionalization

have not been explored, however.

Considering the interplay already discussed

between the technological, political, organizational, and social architectures of this system,

detailed examination of these alternatives

should be explored further before a choice is

made.

IDENTIFICATION TECHNOLOGY

Identification technology is an area in which

future technology developments could make a

significant difference. As discussed previously

in this report, one of the weaknesses of the CCH

system as currently conceived is that rapid identification by fingerprints is not available on a

39
routine basis. The two bottlenecks to achieving

this are the time-consuming and expensive process of manual technical search of fingerprint

files, and the present high cost of facsimile

transmission of fingerprints.

Technology offers the prospect of solving

both of these problems. The FBI has invested

heavily in the past 10 years in the development

of the FINDER system for fingerprint encoding

and search. This system, now being installed in

the FBI Identification Division, is almost completely automated. Total equipment and software costs until completion have been estimated

at $57.2 million. In addition, the training and

skills required to operate the system are extensive. Nevertheless, a highly automated fingerprint identification system is on the verge of

being demonstrated to be economical, at least

for the FBI’s very large collection. More recently

the Canadian Government has ordered a similar

system to be installed at the RCMP headquarters in Ottawa. This system, with a file of 2 million fingerprint records is about the size that

would be required by a State identification

bureau. The problem of economical fingerprint

transmission still remains. But here too, recent

developments in digital facsimile systems, including some technology developed with LEAA

support, shows promise of leading to practical

and economical hardware.

It is not clear without further study how soon

these technologies are likely to be available and

economical enough for widespread use. Furthermore, depending on the relative costs of the

FINDER and facsimile technologies, they could

have the effect of encouraging either centralization or decentralization of the Nation’s fingerprint identification activities.

Transition Planning

ISSUE

Considering the significant change in

criminal justice recordkeeping that CCH

implies and the long transition period

before it can be implemented fully, what

aspects of this transitional period require

planning now?

SUMMARY

Much discussion of CCH tends either to

criticize problems and imbalances of today’s

system environment or to focus on design of an

ultimate system operating at some time in the

future. It is tacitly assumed that a transition

path between the two can be found. However,

explicit planning will be necessary to avoid

dangerous pitfalls along this path.

The gradual conversion from manual to automated criminal justice recordkeeping is accomplishing a steady improvement in both the accuracy and completeness of records. At the

same time, more extensive use of the records has

been made possible. There is good reason to

question whether the quality of today’s records

is adequate to support the uses to which they are

beginning to be put in criminal justice decisionmaking. System planning should recognize that

there will be an extended period in which most

criminal history records do not meet standards

of quality. Interim procedures and monitoring

may be desirable, as is coordination of the pace

of implementation of improved intrastate information systems with the rate of interstate

CCH implementation.

A large number of cost-related questions not

currently addressed by the FBI need to be addressed. The rate of development of State

systems needed to support CCH is in large part

determined by Department of Justice policies

and funding which affect systems development

primarily. Yet the States have concerns about

the operating cost impact of the new systems

and may resist Federal requirements, such as

audit, that could add to their operating costs.

Also related to CCH planning is the relationship between the FBI’s Identification Division,

the State Identification Bureaus and CCH. For

the next 5 years or more, until CCH is substantially operational, the manual rap sheet activities of the Identification Division will have to be

continued. In the long run, maintenance of the

two systems will obviously be duplicative.

There is no FBI plan dealing with this question.

Finally, there are some questions about poor

response time in the existing NCIC system. FBI

statistics made available to the working group

40
support the inference that long delays in system

response have been caused by system outages

resulting from both hardware and software failures. while a long-term solution to these problems should be addressed as part of the overall

planning process, it will be 3 to 4 years, if not

longer, before longer term plans can have effect.

It will be highly desirable if all of these transition questions are addressed in the blueprint for

NCIC/CCH now being developed by the Justice

Department.

QUESTIONS

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

What planning exists or will be developed

in the CCH blueprint for ensuring the improvement of CCH data quality and adequately minimizing the effects of poor

data quality?

What is the proper balance of emphasis

between building intrastate CCH capability and stimulating interstate dissemination?

Are special audit procedures required to

monitor the social risks of CCH during the

early years of operation?

How will the CCH blueprint plan to incorporate States that choose not to computerize their criminal history records?

Will the CCH blueprint include cost

estimates and a financing plan for the

system?

What will be the short- and long-term

relationship between the FBI Identification

Division and the CCH program?

What is the relevance, if any, to

dissemination of criminal history information from the Identification Division

files of questions that have been raised

regarding CCH dissemination?

What would be the advantages and disadvantages of integrating CCH and Identification Division record formats?

What would be the advantages and disadvantages of making CCH an integral part

of the Identification Division data base?

What would be the advantages and disadvantages of allowing State Identification

Bureaus to have

the Automated

System (AIDS)?

DISCUSSION

remote online

Identification

access to

Division

The Justice Department is now in the process

of developing a blueprint for CCH. It is anticipated that this blueprint will present a new proposal for decentralized CCH, and will include a

plan for the necessary telecommunications.

Because of the significant change in criminal

justice recordkeeping that CCH implies, and the

long transition period that will be required

before the system can be fully implemented, it is

crucial that the CCH blueprint should lay out a

plan dealing explicitly with how the transition

will be managed.

The following pages deal with several transition issues: the problem of poor data quality

during the transition period; the problem of

managing a mix of manual and computerized

record systems in different States; the issue of

system costs and financing; the relationship between the CCH program and the FBI Identification Division; and finally, the issue of responsetime problems in the existing systems.

TRANSITION FROM MANUAL

TO COMPUTERIZED RECORDS

In the typical system with a large data base,

the transition from manual records to computer-based records is a period in which many

errors and gaps in the manual records are

systematically uncovered. System managements

differ in the treatment of deficient records: the

files may be expunged entirely, they may be

flagged but entered in the system, or they may

be reconstructed and then entered. Each strategy

presents certain costs and benefits to management. The transition to computerized records

offers management the opportunity to significantly increase the quality of the data base. This

process is occurring as States and local agencies

convert their criminal history records to computerized form. The quality of criminal history

records is certainly being improved. The problem of poor disposition reporting, for example,

was far worse before CCH.

Interstate message switching differs from

other existing and proposed national data banks

because the potential for harm to individual

41
citizens is very large. While erroneous and incomplete information in private credit data

banks may lead to credit difficulties, criminal

history data of poor quality can lead to arrest

and incarceration.

Even if development of an interstate messageswitching capability eventually may improve

data quality, there will be a transition period of

several years during which the system will have

to rely on data of varying quality. Consequently, the role of the CCH program in improving

the quality of criminal history data should be

recognized explicitly in the planning process. A

plan to bring the data up to acceptable standards, to monitor the quality of data over time,

and to minimize the effects of data imperfections is needed. Without such a plan, it will be

reasonable for critics to question whether the

system’s data quality will ever come under control.

MIX OF MANUAL AND

COMPUTERIZED RECORDS

The rate of records automation has varied

widely among the States because of their wide

differences in size, funding, and priorities. Some

smaller States will probably not computerize

their criminal history records for many years, if

ever. A systems approach is required to deal

with this difference in the speed of implementation. Allowing the computerized pointer file to

contain pointers to records held by both computerized and manual states might be desirable.

In any case, the CCH blueprint should deal with

this aspect of the system.

SYSTEM COSTS AND FINANCING

The blueprint for the proposed system must

answer a large number of cost and cost-related

questions not currently addressed by the FBI. In

the first instance, an estimate of costs for all

system participants (or total system cost) must

be included. The cost projections should distinguish between fixed costs and operational costs

(entry and file maintenance costs, programing

and personnel costs, and audit costs).

Second, acceptable use-cost concepts must be

established. Questions of equity arise when

some States who do not develop extensive CCH

capability will nevertheless be able to use the

files of other States who have invested heavily

in a State CCH capability.

Third, the blueprint should clarify the Federal

funding for the operational costs of maintaining

CCH files in a manner acceptable to the existing

Federal standards. Clearly, the States are resisting acceptance of Federal dedication standards, and may well resist Federal auditing requirements. Therefore, these costs may have to

be assumed by the Federal Government. The

current FBI plan makes only a cursory remark

about auditing costs. The Department of Justice

has estimated that when CCH is fully operational a permanent FBI audit staff of five people

could perform the audit function, with an annual travel cost of $90,000. This estimate does

not include any of the State and local auditing

costs, which are likely to be much larger.

Fourth, there is an obvious relationship between distribution of costs and organizational/accountability issues which must be explored. If the States are expected to shoulder a

major part of the fixed and operational costs,

and if they are to bear ultimate responsibility

for the adequacy of the data base with respect

to a variety of criteria, then it would seem that

States should have a higher level of control or

authority in operation of the system than currently envisaged by the FBI. Otherwise States

will be in the position of being held accountable

for system shortcomings without having the

authority to remedy the defects. Thus questions

of cost, organization, and accountability are inextricably linked.

THE FBI IDENTIFICATION DIVISION

The FBI’s Identification Division has maintained a central index of fingerprint records on

criminals and manual criminal history records

or “rap sheets” since 1924. These files now contain records on over 22 million people. They include not only arrestees and offenders, but

military personnel, Government employees,

aliens, people with security clearances, and

those with voluntary personal identification

cards. Until CCH, these FBI files provided the

only mechanism for determining if an individual

had a criminal history when an inquiring agency

could find no prior record in its own State files,

The FBI will continue to respond to inquiries

to the Identification Division file until “a suffi42
cient number of CCH records are amassed to

satisfy operational law enforcement needs. "23

Even if the States begin to join CCH at an accelerated rate, this period is likely to be a

minimum of 5, perhaps 10, years.

Even with a decentralized CCH program, the

FBI Identification Division will play a central

role. While States with their own records of offender fingerprints will be able to identify offenders with prior records in the State, checks

with the master fingerprint file will still be

necessary if no fingerprints are on file in the

State. Thus the procedure of submitting fingerprint cards to the FBI on offenders with no State

record must be continued. Only in the unlikely

event of extreme improvement in accuracy and

cost of electronic processing of fingerprints

could a centralized national file be eliminated in

favor of multiple search of all State files.

The FBI is in the process of automating its

identification process through a program called

“AIDS” (Automated Identification Division

System). AIDS will eventually provide for automatic name and fingerprint searching at the national level. While discussions with FBI representatives have clearly identified the close link

between the Identification Division program

and CCH, OTA is not aware of any long- term

FBI plan encompassing both activities. Since it

does appear that the two criminal history files

will eventually become duplicative, and the

fingerprint search function is so central to both,

it seems necessary that long-term planning in

the FBI and the Department of Justice should

describe the eventual relationships. This would

apply particularly to the blueprint for CCH now

being prepared by the Department of Justice.

Another reason for examining both activities

together is that the arguments concerning oversight and accountability for protection of individual liberties may apply with equal force to

both systems. Special auditing and management

procedures that may be determined to be needed

for control of CCH information dissemination

may therefore apply equally to dissemination of

Identification Division criminal history files as

well.

23 Federal Bureau of Investigation, “National Crime Information Center—Proposed Limited Message-Switching

Implementation Plan, ” April 14, 1975 (Revised).

NCIC RESPONSE TIME AND DOWNTIME

There have been numerous reports of long

delays, some 10 minutes or more, in response to

NCIC inquiries. Furthermore, the system’s

downtime level is thought to be excessive. The

working group received from the FBI some

statistics regarding both response time and

downtime.” This data indicated that the NCIC

central facility was unavailable to process transactions because of unscheduled downtime of an

average 23.9 hours per month during the first 9

months of 1977, for an average in-service availability of 96.7 percent. There were an average of

57 outages in excess of 2 minutes in the average

month. The average duration of these outages

was therefore 25 minutes.

From the viewpoint of the user making inquiries to the system, this downtime results in

delays at least as long as the outage. Consequently, the data suggests that over 3 percent of

the NCIC transactions may have incurred deIays of several minutes because of system outage. The local agency experiencing this delay

receives no message explaining the nature of the

problem or the delay to be expected. The user is

thus left with uncertainty about the delay that is

probably as operationally serious as the delay

itself.

When the central processor is in service, the

data provided by the FBI suggests that on the

average, response time should be quite good.

However, data on the peak busy period processing load would be needed to confirm this impression.

A long-term solution to NCIC’S response time

and downtime problems should be addressed as

part of the current FBI computer system planning and the NCIC “blueprint” exercise under

way in the Department of Justice. However, it

should be recognized that it is likely to be 3 to 4

years, if not longer, before these longer term

plans begin to have their effect.

In the interim, the FBI has submitted a Request for Proposal (RFP) for a front-end communications controller which would be used in

conjunction with the IBM 360/65 central proc24 Letter from Jay Cochran, Jr., Assistant Director, FBI

Technical Services Division, Nov. 10, 1977.

43
essor for the purpose of relieving that machine

of the burden of managing the NCIC communications traffic. OTA’s working group members

did not conduct an investigation into the

reasons for the alleged downtime and response

time. However, given the data provided in the

RFP and the explanation which FBI officials

made of their problems, and given the technical

purpose of front-end processing, and its widespread use to perform economically the general

housekeeping functions associated with message

control, such a procurement request would be a

common technological solution toward relief of

such communications problems as are described

for NCIC. The procurement, however, contained a provision for message switching as a

mandatory option. The FBI’s stated argument

SOCIAL

Effects on the Criminal

Justice System

ISSUE

In what ways, desirable or undesirable,

might CCH cause, or contribute to,

changes in the operation or organization of

the criminal justice system?

SUMMARY

Practitioners and critics of the criminal justice

system suggest that the traditional “due process”

or “adversary” model of criminal justice is no

longer appropriate for describing the reality of

criminal justice decisionmaking. Organizational

resource constraints and opportunities for discretion have increased the importance of administrative decisions in managing the workload of

criminal justice agencies. CCH is an important

tool supporting these mechanisms.

In the long term, CCH has the potential either

to improve the quality of criminal justice decisionmaking or to introduce further inequities in

the system. Careful investigation of its potential

impact on administrative procedures is required.

for this was primarily economic: if message

switching were to be authorized later, the option

would have ensured minimum cost to its implementation. Inclusion of this option met

strong opposition, as some saw it as a possible

subterfuge to obtain message switching without

authorization. The inclusion of the messageswitching option ties this RFP into the CCH

debate, and therefore delayed the procurement.

The RFP was rewritten by the Bureau to remove

all references to message switching and on April

24, 1978, was presented to the General Services

Administration. As of December, procurement

authority had so far been witheld pending

resolution of a difference of interpretation surrounding the question of the exact nature of the

procurement and procedures for obtaining it.

IMPACTS

QUESTIONS

1.

2.

3.

4.

Will the proposed CCH system strengthen

trends towards administrative justice as

opposed to traditional conceptions of

legal due process, presumption of innocence, and full, fair, and open hearings?

What is the likely effect of the proposed

CCH system on the administrative process

and relationships between criminal justice

agencies?

Will the proposed CCH system make it

more difficult for former offenders to reintegrate into society and thus impede their

rehabilitation?

What is the likely impact of use of CCH in

criminal justice decisonmaking on caseloads, detention and prison populations,

and requirements for judges and attorneys?

DISCUSSION

It is widely recognized by those who have ex- ,

amined the criminal justice system in detail that

traditional, legal definitions of “due process” no

longer characterize the bulk of criminal justice

system activities. Such conceptions would re44
quire a presumption of innocence and truly adversary proceedings, full, fair, and open judicial

hearings, free from even the taint of coercion,

threats, or considerations of advantage either to

the accused or the justice system. While a few

accused criminals do receive such treatment, the

vast bulk of the 5 million or so persons reported

arrested annually do not. In most jurisdictions,

from Manhattan to rural Wisconsin, over 9 0

percent of the convictions result from guilty

pleas .25

Police officials, criminal lawyers, judges, and

scholars, who have observed the reality of

criminal justice decisionmaking have characterized this system, variously, as “bureaucratic due

process, “

26 27 “organizational due process, “28 the

“crime control model, ”29 and in the popular

press as “assembly line justice. ”3

°

At the heart of each of these descriptions is

the notion that the criminal justice process

operates under a presumption of guilt. The

goals of the criminal justice agencies are rational/instrumental goals. The criminal justice

process—in this view—is seen as a screening

process in which each successive stage—prearrest investigation, arrest, post-arrest investigation, preparation for trial, trial or entry of

pleas, conviction, disposition—involves a series

of routinized operations whose success is

gauged by their tendency to efficiently pass

along cases to the next agency.

The period of the 1960’s is very important for

understanding current trends in criminal justice

administration. It was a period of growing public awareness and fear of crime. This in turn

brought crime to the foreground as a political

issue, resulting in, among other things, a Presidential Commision on Law Enforcement and

Administration of Justice. It was a period of

25Donald J. Newman, “Pleading Guilty for Considerations: A Study of Bargain Justice, ” )ourrza/ OJ Criminal

Law, Criminology, atld Police Science 46 (1956): 780.

ZbA braham s. Blumberg, Criminal )ustice, Chicago:

Quadrangle Books, 1970.

“Arthur Niederhoffer, Behind the Shield, Garden City,

N. Y.: Anchor Books, 1969.

‘“lerome Skolnick, lustice Without Trial, New York:

Wiley, 1967.

“Herbert L. Packer, The Limits of the Criminal Sanction, Stanford: Stanford University Press, 1968.

‘“Jerome Skolnick, Justice Without Trial, New York:

Wiley, 1967.

social strife among whites and blacks, and between anti- and pro-Vietnam War proponents.

The activities of the police in particular were a

focus of national attention both by those who

saw them as brutal defenders of the status quo,

and others who wanted to solve the crime problem by removing all constraints from the police.

It was also a period of increased reports of

crime, increased arrest activity of police, and

resultant pressures on prosecutors, courts, and

prisons to administer the large caseloads. The

President’s Commission released a report in

1967, The Challenge of Crime in a Free Society,

which itself became an important trend-setting

document both in terms of future policies and

value assumptions on the control of crime.

The report recognized that criminal justice

administration in this country is highly fragmented. Each of the 60,000 agencies involved

had its own recordkeeping practices and needs.

This observation contributes to the pressure for

computerized criminal histories as a management tool for tracking persons through the maze

of the justice system.

The report also recognized the problem of

recidivism. About 68 percent of persons arrested for felonies the first time will be arrested

at least one more time for a subsequent felony.

This has added impetus to a program of computerized criminal histories both at the State

and national levels, and also has led to the development of “careers in crime” programs both

at the FBI and local levels which seek to ensure

that repeat offenders are dealt with severely by

prosecutors and judges.

The Commission also reported a lack of information, poor management, and lack of cooperation among agencies. This encouraged the

establishment of new funding mechanisms to

entice local agencies into compliance with

Federal and State executive branch programs.

The recommendations of the President’s

Commission led to the rapid development of

State CCH programs; criminal histories have

come to play a central role in the administrative

justice process. The nature of the treatment that

an individual receives from the criminal justice

system has come to depend strongly on the administrative screening of his criminal history

records at numerous points in the process. (See

lnforrnation Needs, p. 17, for discussion of the

45
constitutional rights and data quality issues involved here. ) Thus, CCH is an important, and

sucessful tool supporting the gradual shift

towards bureaucratic criminal justice processes.

As the use of computerized records becomes

more widespread and the workload of criminal

justice agencies continues to increase, further

applications of CCH as a management tool can

be anticipated.

The availability of criminal history records to

support criminal justice decisionmaking will

necessarily change the quality of those decisions. To take just one example, consider the

use of CCH to aid the decision to set bail. This

will operate to increase the probability that persons with criminal histories meeting certain

criteria would be detained. Two alternative consequences would flow from this result. Either

detention facilities would become increasingly

overcrowded or incarcerating officials would

adjust their decisionmaking process so that

some people who would be detained under current procedures would be permitted bail.

This sort of shift in decisionmaking might be

in the direction of a more rational, fair, and explicit system, allowing officials discretionary

decisions to be factually based on appropriate

information about the individual involved. Certainly studies show that, at present, great inequities are observable in decisions for reasons

having to do with social class, ethnicity, and a

host of other nonlegal social distinctions. 31 But

it is also possible that one set of inequities will

be replaced by another. For example, use of incomplete, inaccurate criminal histories has been

attacked as systematically unfair in a current

court case. 32 A future assessment could examine

the effect of CCH on this trend.

The Dossier Society

ISSUE

To what extent, if any, might CCH contribute to the growth of Federal social control,

or become an instrument for subversion of

the democratic process?

31Charles Bahn, “Sentence Disparity and Civil Rights, ”

U.S. Commission on Civil Rights, December 1977. 32Tatum, et al. vs. Rogers.

SUMMARY

Some possible consequences of new technological systems are of such magnitude that, even

though speculative and remote, they deserve

serious attention, particularly if the consequences have the potential to be irreversible.

Falling into this category is the possibility that

CCH might become part of a drift in bureaucratic growth leading to ever larger instruments

of Federal social control, or even to internal

subversion of the normal democratic process.

More explicit technology contingency assesment is required to permit evaluation of this

issue.

QUESTIONS

1.

2.

3.

4.

To what extent, if any, does the proposed

CCH system in combination with other

Federal systems in the Internal Revenue

Service, Social Security, HEW, and other

agencies expand the potential surveillance

capacity of the Federal Government

beyond reasonable limits?

To what extent, if any, will the development of a national interstate CCH capability expand criminal justice demand for

and use of CCH records?

Given the potential for linkage between

the proposed CCH system and the many

other, new, massive Federal data banks,

to what extent is it advisable for Congress

to establish an agency specifically charged

with monitoring or controlling these

systems?

Are the available oversight and auditing

mechanisms strong enough to alert society

to adverse consequences in time to avoid

or reverse them?

DISCUSSION

Although American society rejected the idea

of a national statistical-administrative data

bank, it is apparent that through incremental

decisions in a number of areas—HEW, Internal

Revenue, Social Security, Occupational Health,

and so forth—the building blocks of a national

data bank are, or shortly will be, in existence. It

is well known that the demand for information

is often encouraged by the supply of cheap,

reasonable quality information. And it is con46
ceivable that through the pressure of day-to-day

administration of large Federal programs, or

through popular political pressure, certain

groups of Americans will be routinely tracked

through Federal data banks. Fathers who have

abandoned their families provide an interesting

example of a group thought particularly antisocial by Federal welfare officials, the public,

and Congress. The recent program established

by HEW to compare local welfare records with

Federal social security files in order to track

down these fathers illustrates how a combination of political and administrative forces

responds to the supply of information. Such a

program would be inconceivable without extensive computerization of State-1ocal welfare files.

Moreover, there are no inherent limits on this

process: popular passions, fed by the technical

capability and supply of information, may

gradually extend the dossier society to many

population subgroups.

In such a context, CCH must be considered

another important building block for a national

data bank. The extensive use of CCH in law enforcement, criminal justice, employment, and

licensing could be extended beyond present

limits under pressure of new perceived needs.

For example, CCH and the NCIC wanted persons and missing persons files could be used to

assist in tracking and locating individuals exercising first amendment rights, and identifying

members of political groups.

In exploring these possibilities, perhaps the

limiting case is the possible abuse of CCH, and

other systems with files on individuals, through

internal subversion of the democratic process

and/or cultural draft towards a bureaucratic

leviathan. In the recent past, reports and hearings show that the existence of FBI criminal files,

as well as some other Federal Government files

on individuals, has proven a powerful temptation for some political executives to abuse the

democratic process and threaten the civil liberties of Americans. In some instances, Federal

administrators and other personnel with direct

responsibility for the integrity of these information systems have indicated they often felt

powerless or acted in concert with the abuse of

these systems.

These possibilities may seem remote, but the

magnitude of their consequences could be catastrophic. Furthermore, the ability of our social

organization to recognize and control the incremental growth of data banks has not been firmly demonstrated to say the least.

A future assessment should examine the vulnerability of CCH to these abuses, and the prospects of strengthening safeguards against them.

Privacy and Civil Liberties Trends

ISSUE

Is there a conflict between maintaining national privacy and civil liberties trends and

decentralizing responsibility for the CCH

system?

SUMMARY

The national dialog on computerized criminal

histories has produced some slow progress

towards achieving a recognition of the need for

restrictions on the dissemination of records. The

effect on the health of this movement of a possible decentralization of CCH to the States is not

clear. It may become more difficult to maintain

a national spotlight on these sensitive questions.

QUESTIONS

1.

2.

3.

What would be the impact of decentralization of CCH on the opportunity for oversight of constitutional rights protection

throughout the country?

Would it be more or less possible for interested groups to focus attention on

violations or patterns of governmental

abuses?

Would a decentralized system be more or

less responsive to the privacy concerns of

individuals?

DISCUSSION

The creation of a computerized file with

criminal histories under Federal auspices has offered a unique opportunity to make some slow

national progress toward achieving social goals

of fairness, privacy, and freedom of information through statutory and administrative restrictions on abuses in use of personal records

and on careless or malicious or unwise dissemination of records. It allowed, indeed forced, a

long-needed dialog on the need for relevancy,

47
accuracy, and timeliness of information on people when it was used by those agencies which

most intensely exercised the force of government. Many hundreds of studies, articles,

essays, and speeches have analyzed the implications of these issues which were inherent from

the beginning of NCIC/CCH.

Although reflecting diversity, this dialog, and

the laws, rules, and judicial decisions it

generated, moved the Federal and many State

governments very far along the way towards a

national information policy. In itself, it has

helped to weld together the diverse political

arenas in our society where these issues were

debated. It energized reforms in other areas of

recordkeeping and many of these are documented in recent reports of the Privacy Protection Commission.

Some analysis needs to be given to the health

of this movement insofar as law enforcement,

criminal justice records and computerized systems are concerned. Returning CCH files to the

States or to another entity, under different umbrellas, might reduce the opportunity for oversight of the way important constitutional rights

interests are being protected throughout the

country. It is not clear whether interested

groups would find it easier or more difficult to

turn a spotlight on a violation or pattern of

governmental abuses with the intensity sufficient to effect changes. Restructuring of NCIC

might result in throwing such political interest

groups into an arena dominated by influential

police chiefs and political executives in the law

enforcement and criminal justice agencies of

each State. On the other hand, such a scenario

might make it easier to advocate changes and

promote oversight in areas of concern to constitutional rights groups and others concerned

with maintenance of effective criminal justice

systems.

A future assessment of this issue should take

notice of identifiable trends in public attitude

concerning civil liberties, fear of scientifictechnological development, and towards increased levels of powerlessness and alienation

with regard to political institutions. Such trends

are evidenced by numerous surveys, reports,

and legislative activities.

48
Appendixes
APPENDIX A

Letters of Request

Senator Edward M. Kennedy

Chairman of the Board

Office of Technology Assessmen t

119 D Street, N.E.

Washington, D. C. 20510

Dear Senator Kennedy :

The House Committee on the Judiciary , Sub -

Committee on civil and Constitutional Rights, pursuant t o

its legislativ e and oversight responsibi1ities over the

FBI , is currently undertaking a study of the FBI's 

criminal justic e informatrion systems and related matters.

The Committee has been interested in this area for som e

time , most recently in connection with the Bureau s

request to the Departmen t of Justice for new equipmen t

and mess age switching capability for its National crime

Information Center. The Subcommittee has focused its

attention on the systems cost-effectiveness, e f f i c i ency,

security and privacy protections .

In addition, th e

larger issu e o f what should be the role of the federa l

governmen t

in this exchange of information by and fo r

local law enforcement agencies has been raised .

In view of the technical complexity o f

nationwide computerized informatio n

and telecommunication s

systems, the Committee would like to have the assistanc e

of the Office of Technology Assessment.

In particular ,

we believe that OTA’S assistance would be most helpful i n

addressing the following issues:

1 . Evaluation of the Bureau’s NCIC system

i n terms of benefits to the users, accuracy of the data ,

speed, efficiency and reliability .

2 . The Department of Justice is currently

developing a proposal with both short and long rang e

plans for th e future of NCIC,

the FBI’s role in la w

enforcement telecommunications systems and messag e

51
Senator Edward M. Kennedy

September 12. 197 7

Page 2

switching generally . An analysis of the proposal is

needed in terms of the issues raised above, i.e.:

does the proposal call for implementation o f

the newest and best technology available (I s

that technology necessary to carry out the

functions described in the proposal?);

does it provide for appropriate privacy an d

security measures and safeguards for constitu -

tional rights and civil liberties; .

does it take into account the needs of its

primary users, the states, on an ongoing basis;

does it or should it, provide for systemati c

audits of the system , both internal and external,

announced and unannounced;

will it improve the speed of response and reduc e

the current downtime levels, both of which ar e

cited as problems by some users and outsid e

computer experts (Are these in fact seriou s

problems?) ;

does it strike the appropriate balance betwee n

state and federal control of this system ,

keeping in mind that the Subcommittee lean s

toward the least intrusive federal (FBI) in -

volvement possible , consistent with efficien t

operation of the system .

These questions and issues are not meant to b e

all-inclusive . For example , in a report prepared for th e

Subcommittee by the Scientists’ Institute for Publi c

Information , a copy of which is enclosed, additiona l

problems were cited , and suggestions for change were made .

Your evaluation of those problems and suggestions woul d

also shed much light on this inquiry . Finally, your answers

to all of these questions may, in turn, lead YOU t o

identify and assess alternatives, which would be useful t o

the Subcommittee’s study .

52
Senator Edward M. Kennedy

September 12, 197 7

Page 3

Your assistance in this matter would b e

greatly appreciated . We look forward to hearing from

you in the near future .

PETER W. RODINO, JR.

CHAIRMAN

Sincerely ,

Don Edwards

Chairman

Subcommittee on Civil and

Constitutional Rights

53
SCIENTISTS INSTITUTE FOR PUBLIC INFORMATION

355 Lexington Avenue

New York, N.Y. 10017

(212) 661-9110

TASK FORCE ON SCIENCE AND TECHNOLOGY

IN THE CRIMINAL JUSTICE SYSTEM

Project on Criminal Justice Information Systems

Report on inspection and briefing at the National Crime Information Center,

July 12,1977, and follow= up, August 2,1977.

Prepared by:

John J. Kennedy, Esq.

Director, Criminal Justice Task

Force

August 3, 1977

On July 12, 1977, a group representing SIPI’S

Task Force on Science and Technology in the

Criminal Justice System performed an on-site

inspection of the National Crime Information

Center at Hoover FBI Headquarters in Washington, D.C. A briefing was conducted by Raymond J. Young, Assistant Section Chief, NCIC,

and a lengthy question period followed. The

SIPI group consisted of the following computer

scientists: Daniel D. McCracken, Task Force

Chairperson, and Vice-President of the Association for Computing Machinery; Joseph Weizenbaum, Professor of Computer Science, Massachusetts Institute of Technology; and Dr.

Myron Uretsky, Director, Management Decision Laboratory, New York University Graduate School of Business Administration, They

were accompanied by John J. Kennedy, Esq.,

Task Force Director, and Alan McGowan,

President of SIPI. After a preliminary report of

that visit was prepared, Mr. Kennedy returned

on August 2, 1977 to meet with Frank B. Buell,

Section Chief, NCIC, and with Mr. Young, to

give the FBI an opportunity to respond to the

preliminary report. As a result of that follow-up

visit, some corrections were made in the preliminary report. The thirteen points discussed

below represent some problem areas of the

NCIC as they appeared to the SIPI group as a

result of these visits.

1. There is no regular auditing of NCIC data

and procedures by a relatively independent

auditing authority. Department of Justice

54
Regulations place the responsibility for the

auditing of Computerized Criminal History

data on each state to perform its own audit.

The NCIC Advisory Policy Board statement of October 20, 1976, also mandates

systematic audits on the part of the states

with respect to CCH data. There are no

Regulations at all which mandate any audit

of non-CCH data. Therefore, neither the

FBI nor any other agency except the submitting state audits what goes into the

system and how it goes in, The FBI only

scrutinizes state systems when it is invited

to do so by that state, or when the FBI

suspects wrongdoing on the part of employees of the system. The FBI does point

out errors in procedure and obvious data

errors that come to its attention, However,

the opinion of the Task Force was that independent auditing, both announced and

unannounced, as in the case of bank audits,

is crucial to maintaining the accuracy and

integrity of data, and to ensure that adequate computer management practices and

safeguards are being followed. For example, the rate of inaccurate records can best

be determined by independent audit, but at

the present time such figures for the system

as a whole are unavailable. Finally, one

Task Force member felt that the “friendly”

relations between the local law enforcement agencies and the FBI, and the desire to

keep those relations friendly, militated

against a system where one part was truly

looking over another part in a critical way.

2. There has been no in-depth evaluation of

the actual benefits of NCIC either performed by the states or by the FBI despite

10 years of operation. Except for a number

of highly dramatic incidents that are

reported on occasion to indicate that NCIC

works, there have been no studies, evaluations, or reports which give hard data on

the benefits that have resulted to criminal

justice as a result of NCIC. For example,

what use does the criminal justice community make of NCIC data, and how does

this improve criminal justice efforts? The

actual benefits of NCIC still remain in the

area of surmise, rather than demonstrated

results.

3.

4.

For such a vast system, containing over 6

1

/2

million records, with 250,000 transactions

per day, the hit ratio was not demonstrated

to be impressive. The system has about

1,000 hits per day, of which 50% were for

stolen vehicles, 20-25 1%0 for wanted persons, and the rest scattered over the other

six non-CCH files. There was no reliable

data available for the CCH hit ratio. Without studies of the context of the hits, even

in cases involving the “hot” files there is no

proven demonstration of the significance of

these hits. There is insufficient available

proof of whether an extremely rapid response, which NCIC is designed to provider is of such vital significance in a great

proportion of these 1,000 daily hits. In addition, all of the information obtained

through NCIC could be obtained elsewhere, admittedly, by a less rapid manner,

since all the data is kept at the state level.

There are other sources of criminal justice

information in addition to this state maintained data. For example, there is a stolen

car list maintained by a consortium of insurance companies which the FBI admits is

in some respects more accurate and up-todate than the NCIC stolen vehicle file

which relies on state-supplied information.

Perhaps the NLETS system, in the case of

much interstate information, is an adequate, alternative communication device.

The maintenance of the huge NCIC system,

growing every year, may be subject to

question when there is no demonstration

that the 1,000 daily hits provide a significant benefit to law enforcement, and that

comparable information may be available

by other means, at cheaper cost, and with

less significant problems involving intergovernmental relations.

The downtime of the system was viewed as

excessive. There are about 30 hours per

month of unscheduled downtime, and

about 2-3 hours per month of scheduled

downtime. On 7/12/77 the system had

operated for eight straight days without

downtime, but has had other occasions

when the system was down for as long as

11 hours. It requires a minimum of 45

minutes to restart the system after downtime; it requires a cold start; and the down55
time is more due to hardware than software. Although the system has 94% uptime, the Task Force said that this would be

an unacceptable record in most commercial

enterprises. If such downtime existed in a

bank or insurance company, it would be a

situation requiring immediate corrective

action. The FBI plans to request additional

funds for some costly equipment upgrading, designed, in part, to solve this problem

of downtime.

5. “Expungement” from the system does not

mean true expungement of a record. Backup tapes and a log are necessarily maintained by NCIC for system reliability purposes. This is a necessary precaution common in computer systems. However, since

back-up tapes and a log are maintained,

“expungement” (“cancellation,” “clear”)

from NCIC really means that the expunged

data is not available on-line, but does exist

on tapes that are kept at FBI Headquarters.

Expungement from NCIC can occur due to

the fact that the initial entry was incorrect,

among other reasons, but even this sort of

expungement would still entail a record being maintained by the FBI, even of the erroneous data, kept on back-up tapes. The

problem of expunged data does not involve

insignificant numbers. For example, in a recent ten-day period, there were cancels and

clears on 17,000 stolen vehicles, 2,500 CCH

files, 1,000 “articles,” 2,000 license plates,

6,200 wanted or missing persons, and 1,800

guns. There are a variety of reasons for

these clears and cancels, but some percentage of them involve errors that put people

into the files who never belonged there in

the first place. Yet, these records will be

maintained on NCIC back-up tapes.

6. There have been at least eight lawsuits

resulting from the use of NCIC data, one of

which was directed against the Section

Chief of NCIC. These suits can result from

false arrest, unlawful search and seizure, or

other improper practices. One of the side

benefits of not fully expunging data is to

defend law enforcement personnel from

lawsuits by pointing to data that had

previously been maintained in NCIC at one

time, which may have given “probable

cause” for the law enforcement action that

the lawsuit arose over.

7. The FBI admits that there has been poor

disposition reporting by the courts. This

means that arrest records remain in the system without updating of the outcome of

that arrest. The arrest records do not drop

out of CCH even if no disposition is ever

reported. Although there are limits on the

dissemination of arrest data to non-criminal justice agencies, nonetheless, data on

stale arrests are not removed from the system. One Task Force member suggested

that arrest data in CCH be removed unless

there is prompt disposition reporting. As

the system is now operated, a person will

have an arrest record maintained indefinitely in CCH whether or not he is ever

convicted in a court.

8. NCIC requires a cumbersome correction

and updating procedure. When an entering

agency corrects an error or wishes to update a record, it must transmit that data to

the central state control terminal, for further transmission to NCIC central headquarters in Washington. However, in addition to the data having to pass through several different steps for correction, this procedure doesn’t provide for complete correction or updating of NCIC data. For example, assume that Florida has made an input

of incorrect data to NCIC, or certain data

that it has input is now stale. Suppose that

this is CCH data concerning John Doe. If

Michigan makes an inquiry to NCIC about

John Doe, Michigan will receive either incorrect or stale data. Further assume that

Florida then corrects or updates John Doe’s

record, Nonetheless, Michigan is still in

possession of the stale or incorrect data on

John Doe, and unless Michigan makes

another information request on John Doe,

Michigan will not receive the correct and

up-to-date data through NCIC. It is not

possible for Florida to directly update or

correct Michigan’s record on John Doe

through NCIC. Under current procedures,

even after Florida has carried out the process of correction on-line, nevertheless, the

FBI still must inform Michigan through the

mails that there has been an expungement

56
9.

on John Doe. There is no mail correction or

updating on non-CCH files. Local law enforcement agencies are advised not to act

on old NCIC hits. Only fresh hits are

viewed as being adequate, and even then,

the person who gets the hit must confirm

this information with the entering state by

another means than NCIC.

The procedures for the verification and certification of data by the states does not prevent at least some stale and incorrect data

from being in NCIC at any given time.

Every six months the FBI sends to each state

either a print-out or tapes of the data that

that state has submitted to NCIC that is still

being maintained in the system. The state

must certify that this data is correct. However, unless the state at that point takes affirmative action to correct the data sent

back to it by the FBI, the data will remain

in the system. That is, the state certification

procedure makes the implied assumption

that the data, as it is already being maintained, is correct and up-to-date. One Task

Force member suggested that an alternative

method would be for NCIC to periodically

start with a clean slate, and have each state

submit all data at that point which it could

certify as correct and up-to-date. By the

former method, there is an implied assumption that the data in the system is correct

and up-to-date. By the latter method, no

such assumption is made, and a greater

burden of verification and certification is

placed on each state. A second problem is

that the certification procedure is carried

out only every six months. This can leave a

substantial time gap in the correction of

records which allows a certain percentage

of bad data to remain in the system during

that time gap. Finally, the sanction for a

state which certifies data incorrectly can include being cut-off from the system, which

can also be applied in cases of improper

practices of other kinds. However, because

the sanction of cut-off is viewed as draconian, it is applied sparingly. No state has

ever been cut off from the hot files. Only

one local law enforcement agency has ever

been cut off from NCIC, and that was an

action taken by the State of Ohio. Three

other states in the past have been tem10.

11.

12.

porarily cut-off from the CCH file due to

reorganization of procedures in those

states, but have since been restored to

CCH. In a system where the only effective

sanction is cut-off, the problem of enforcing procedures is a delicate one.

People are not informed when a CCH record is maintained on them. They do have

the right to check their own file through a

cumbersome process and the payment of

fees in some cases, but figures were not

available on the number of people who actually do check. There was some feeling expressed by Task Force members that people

should be informed periodically if a record

is being maintained concerning them. Address information of the people on which

records are maintained appears on the fingerprint cards related to the record in CCH.

There are serious security and privacy considerations when between 6,6oo and 7,000

terminals can access NCIC nationwide. As

the number of terminals increase, with a

potential of 45,OOO local, state, and Federal

criminal justice use terminals, the opportunities for abuse also increase. As long as

someone can either gain unauthorized access themselves, or gain indirect access

through an authorized user, a system containing sensitive data is open to abuse.

Despite nearly six years of operation, only

11 states are participating in the CCH portion of NCIC by providing some input, and

of these, only 2 are fully participating in the

sense of providing input of all arrest records. FBI Director Clarence M. Kelley, in

an April 1.5, 1977 memo to Attorney General Bell, reiterated his previous request to

terminate FBI participation in the CCH

portion of NCIC. Director Kelley’s reasons

repeated his previously advanced reasons

such as excessive cost of the system, lack of

participation by the states, and the absence

of authority for a “message-switching”

capability which caused duplication of data

at both the state and Federal levels. CCH

records make up about 1670 of the total

number of records in NCIC, yet even the

head of the agency that manages the system

questions the efficacy of this portion of it,

and calls for the end of this portion.

57
13. In a May 19, 1977 memo, Peter F. Flaherty,

Deputy Attorney General, wrote to Director Kelley that the Justice Department had

undertaken a study to see if “interstate

message switching should be authorized for

the CCH program. ” Message switching

would entail keeping CCH data on Federal

and multi-state offenders centrally maintained by the FBI, but having data on

single-state offenders (about 70% of the

total) maintained by the states. The FBI

would keep a “pointer” file which would

direct an inquiry from State X to the proper

state where that CCH record was being

maintained, and the capability would exist

for State X to query State Y through the

NCIC. The FBI would supply the facilities

for a state to inquire over FBI maintained

lines to each of the other states. However,

this raises at least two questions. One, with

direct state-to-state access, through the FBI,

would there be a tremendous increase in the

amount of criminal justice information that

would be available on-line? For example,

California’s CLETS system submits only

about 10% of its criminal history data to

CCH, determined by the gravity of the offense, residence of the defendant, and other

factors. However, with direct access,

would the entire CLETS system be available to other states? The Task Force felt

that as interconnection increases, problem

areas multiply. Two, in this electronic context, due to the design of this central

switching system, would this mean that the

FBI would control the flow of ever-increasing amounts of criminal justice information

throughout the country?

58
Appendix A

Task Force Members

Daniel D. McCracken; Ossining, New York (Chairperson)

Vice-President, Association for Computing Machinery

Consultant, and author of 14 books in computing field

Joseph Weizenbaum

Professor of Computer Science, MIT

Former member, Secretary’s Advisory Committee on

Automated Personal Data System, Dept. of HEW

Author, Computer Power and human Reason

(W. H. Freeman& Co., 1976)

Douglas H. Haden

Assistant Professor of Computer Science

New Mexico State University

Author, Social Effects of Computer Use and Misuse

(John Wiley & Sons, 1976)

Dr. Myron Uretsky

Director, Management Decision Laboratory

NYU Graduate School of Business Administration

Paul Armer; San Francisco, California

On-Line Business Systems, Inc.

Former] y at the Center for Advanced Study in the

Behavioral Sciences, Stanford, California

Dr. Jerry M. Rosenberg

Professor of Management

Polytechnic Institute of New York

Author, The Dealth of Privacy

(Random House, 1969)

Dr. Robert R. J. Gallati

Northeastern University

Criminal Justice Program

Formerly, Director of the New York State Identification

and Intelligence System

Jeremiah Gutman, Esq; New York, NY

Levy, Gutman, Goldberg & Kaplan

Chairman, ACLU Privacy Committee

Ronald E. Yank, Esq.; San Francisco, California

Carroll, Burdick, and McDonough

Counsel, Peace Officers Research Association

of California

Anthony Ralston

Chairman, Department of Computer Science

State University of New York at Buffalo

Past-President, American Federation of Information

Processing Societies (AFIPS)

Dr. Rein Turn; Redondo Beach, California

Staff Engineer, Software Analysis and Evaluation Dept.

Defense and Space Systems Group of TRW, Inc.

Professor Lance J. Hoffman

George Washington University

Department of Electrical Engineering and

Computer Science

Dr. Norman H. White

Assistant Professor of Computer Applications

NYU Graduate School of Business Administration

59
JAMES O. EASTLANO, MI SS., CHAIRMAN

COMMITTEE ON THE JUDICIARY

W ASH i NGTON . D.C. 20510

February 15, 1978

Dr. Russe1l W. Peterson

Directo r

Office of Technology Assessmen t

Congress of the United State s Washington D. C. 20510

Dear Dr. Peterson :

It is our understanding that the Office of Technology Assessmen t

is now engaged in a pre1iminary analysis o f the National Crime

Information Center in response to a request for an assessmen t

which you received from Chairman Rodino of the House Judiciary

Committee and Chairman Edwards of the Subcommittee on Civil and

Constitutional Rights.

As Chairman of the Senate Judiciary Committee and as Chairmen of

the Subcommittee on Administrative Practice and Procedure and th e

Subcommittee on the Constitution , we join in this request for a

full scale assessment and evaluation of the NCIC. In view of th e

present and proposed role of the Federal Government in the operatio n

and management of this exchange of information for local law

enforcement agencies, we believe there is an urgent need for a n

evaluation of the NCIC for:(1) its benefits to the users and t o

taxpayers in terms of the accuracy of its data, its speed, efficienc y

and reliability ; and (2) its consequences for effective protectio n

of constitutional rights in the administration of justice .

The Department of Justice is currently considering various plan s

for updating and expanding NCIC which would include returning th e

computerized criminal histories (CCH) records of NCIC to the state s

which have already put them into the system and operating a centra l

message switching center for local and state police agencies whe n

they request information from other jurisdictions. This would

result in a major expansion of this nation-wide system, with implications for the right of states to control local law enforcemen t

and to develop related information systems in light of their ow n

statutes governing privacy and freedom of information . Justic e

Department plans also raise major constitutional rights problems

of privacy , confidentiality, security , due process and civil libertie s

where the technology may interact with administrative and judicia l

policy .

60
Dr ● Russell W. Peterso n

page two

The Senate Judiciary Committee has conducted hearings and considere d

legislation on these issues for some several Congresses withou t

the benefit of a thorough evaluation of exactly what informatio n

is in the system, and who needs it and why.

Especially interested in these issues is the Subcommittee o n

Administrative Practice and Procedure whose oversight jurisdictio n

encompasses both the substantive and procedural internal practice s

and procedure s of federal agencies. The Subcommittee is strongl y

in favor of a comprehensive and efficient system of law enforcement,

and joins with the Justice Department in seeking this goal . However,

the importance of assurin g a citizen’s constitutional rights o f

due process, privacy , and civil liberties is also of prime concern .

The Subcommittee on the Constitution also has a particular interest

in the NCIC. Over the past several years it has held several hearing s

on the issues raised by criminal information storage and retrieva l

systems and the various constitutional and privacy concern s

presented by them. The Subcommittee has recently engaged in an ,

exchange of correspondence with the Attorney General on th e

Department’s plans and intentions for NCIC .

We are, in addition , concerned with the issue of Federal contro l

over State information , and how that issue will be dealth with i n

the proposed system. If the long term social consequences, beneficial 

as well as adverse , of this law enforcement information system

are to be fully identified for Congress, we believe several area s

need to be fully explored by your current working group .

First , with respect to the issue of the impact of the interrelation -

ship of the many information policies which govern the administrativ e

practices of Federal and State agencies which use or are affecte d

by NCIC- -particularly by the computerized criminal history files, (CCH) ---

a . An analysis from the perspective of the righ t

of privacy , freedom of information, due process

rights and civil liberties in general should b e

made with respect to the above question .

b . An analysis of the Federal vs. State roles wit h

respect to the handling of th e information in the system:

i.e. , which person or entity will control what data in th e

new NCIC system, and which person or entity will be hel d

accountable for the quality of information in the system--

and by what method this will be done.

61
Dr. Russell W. Peterson

page thre e

c . An analysis should be made of the effective -

ness of the policies, both for the present an d

future NCIC system, with respect to expungemen t

of irrelevant, old, or inaccurate data , For

instance, how would the standards for such a process

be set and maintained and/or changed, if

necessary ? Who or what entity would be responsible for the accuracy of all records in the system?

How would this be audited or reviewed in

light of the right of privacy, due process an d

civil liberties concerns ?

Second, there should be an analysis of any efforts being made t o

identify and address “flagging ” as a potential civil libertie s

problem.

Thirdly, we believe that an evaluation of the efficiency of NCIC

and of any proposed technological changes should encompass th e

effect of those changes on all other Federal users of NCIC files.

This would include, for instance , the Department of Agriculture ,

the Veteran’s Administration , Customs and the other Treasur y

Department Bureaus, the State Department, the Secret Service, an d

other interested Federal agencies. In connection with this issue ,

we would also like to know whether the Department of Justic e

plans for NCIC have considered possible alternative futur e

relationships between those federal agencies and CCH record s

and NCIC data banks and computerized files.

What would be the effect on individual constitutional rights an d

other guarantees if the present NCIC relationships are altered ?

How would an enlarged system such as proposed, compare with the

present system in terms of privacy , due process and civil libertie s

safeguards ? Would certain rearrangements of NCIC tend to magnify

or extend some undesirable features of the Federal use of NCIC?

On the other hand , would certain rearrangements make it mor e

difficult or costly for some agencies to use and support NCIC

to the detriment of their programs and of the rights of citizens ?

The fourth area which concerns us as Members of the Judiciar y

Committee is the relationship of NCIC programs, operations an d

controls to the Federal and State Judiciary . Could proposals

to change NCIC tend in the long-run to fester or threaten th e

constitutional separation of the Judiciary from the Executiv e

62
Dr. Russell W. Peterson

page fou r

branch and the Legislature , at all levels of government ? Would

pending proposals to change NCIC tend to promote or retard th e

ability of State judicial officials to make the most efficien t

use of data systems in order to protect the rights of citizen s

involved in the judicial process ? We are not familiar with an y

studies that have dealt directly with this question .

Fifth, the ramifications of Federal message switching, whe n

incorporated into such a law enforcement information system

as NCIC, need to be thoroughly explored for its impact on th e

rights of the individual in our society, and on the powers O f

the States, (and on the ability of private enterprise to compet e

with the Federal Government) . We realize that message switchin g

is a common technique which is useful in a great variety o f

government and private information programs. However, ther e

are aspects of some of the current NCIC proposals in this are a

which need further study in light of civil liberties and othe r

concerns which have been often voiced by the public and press

and emphasized in Congress.

Last, but not least , we have yet to see an evaluation of the NCIC

concept, that is, of whether or not an NCIC-type system is th e

most efficient way to accomplish the law enforcement goals

desired , and whether or not we actually need a nation-wid e

system such as that proposed . Should private enterprise pla y

a greater role in providing services? To what extent should th e

Federal government compete with private industry ? An OTA

assessment should , in view of your statutory mission, includ e

an analysis of alternatives to NCIC. For instance, would a n

alternative arrangement be more effective in achieving our goals ?

How effective, for instance , would it be to develop a system

iased on regional data banks ? Under various alternatives, wha t

would happen to political rights and privileges of citizens ?

We believe Congress will benefit from OTA’S assessment of NCIC.

This system represents the first and most important nation-wid e

use of computer and telecommunications technology to link federal,

state and local governments, and to apply the technology t o

serious law enforcement and criminal justice problems of concer n

to our entire society . Many of the issues involved in NCIC

are those common to any such Federal-State information system. .

63
Dr. Russell W. Peterson

page fiv e

The Federal and State governments will spend millions of dollars

to develop fully the NCIC and the data programs and technolog y

which feed and support it . It is difficult , if not impossible ,

to reverse the effects of misjudgment or poor planning in suc h

programs. Therefore we believe it is important to ask har d

questions now and to have them resolved than to have them feste r

as social and legislative issues for years to come simpl y

because governments and taxpayers have let themselves become

indentured to costly and complex technology .

Sincerely ,

ames Abourezk

Chairma n

Subcommitte e

Practice an d

on Administrativ e

Procedur e

Chairman

Chairman

Senate Judiciary Committe e

Subcommittee on the Constitutio n

64
NINETY-FIFTH CONGRESS

CONGRESS OF THE UNITED STATES

House of Representatives

GOVERNMENT INFORMATION AND INDIVIDUAL RIGHTS

SUBCOMMlTTEE

OF THE

COMMITTEE ON GOVERNMENT OPERATIONS

RAYBURN HOUSE OFFICE BUILDING , Room B-349-B-C

WASHINGTON. B.C. 20513

September 19, 1977

Mr. Daniel V. DeSimone

Acting Director

Office of Technology Assessment

Senate Annex #3

Washington, D.C. 20510

Dear Mr. DeSimone:

As Chairman of the Subcommittee on Government Information and Indi -

vidual Rights of the House Government Operations Committee, I wish to confirm

the previous request made by this subcommittee on September 8, 1976 for the

assistance of the Office of Technology Assessment, and to seek your help in

further projects of concern. The subcommittee has assignments involving the

field of computer technology and other means of electronic communications

which flow from our legislative jurisdiction, particularly from the mandates

of the Privacy Act of 1974 and the Freedom of Information Act.

The earlier request, a copy of which is attached, was in connection

with the need for technical support for the Congress in its review of

Executive agency proposals to alter or establish information systems. That

OTA can perform an important service in this area is clear from its assessment

of the proposed Tax Administration System. OTA involvemen’t on a more regular

basis would, of course, be most desirable. In this regard, I and my staff

would welcome the opportunity to discuss this matter with you. .

Of equal, if not greater importance is the subcommittee’s concern over

the impact of technological advances on the development of government information programs in general. Our interests in this area would, I believe, be

best served through listing the subcommittee as a sponsor for the upcoming OTA

exploration of the need for a government-wide policy on computers and telecommunications. This sponsorship would afford ample opportunity for subcommittee

input on those aspects of the exploration study which relate to our jurisdiction.

Thank you for your consideration and continued cooperation.

6 5

Chairman
September 8, 1976
67
APPENDIX B

Pertinent excerpts from the Department of Justice

Report: Representative Viewpoints of State Criminal

Justice Officials Regarding the Need for a Nationwide

Interchange Facility. March 6,1978

QUESTIONS PRESENTED

AND SOURCES OF INFORMATION

In order to ascertain the needs of the criminal

justice community, the Department of Justice

and subcommittee staff officials visited 10 States

during the period November 1977 through February 1978. The States visited were California,

Florida, Georgia, Illinois, Massachusetts, Minnesota, New York, North Carolina, Texas, and

Wisconsin. Department of Justice and subcommittee staff officials believed these States to

have both representative qualities and relevant

experiences in terms of the issues to be considered.

Specifically, while all of the States routinely

used National Crime Information Center

(NCIC) facilities in acquiring information for

wanted persons, wanted properties, etc., all of

the States also had fully developed State capabilities for the intrastate exchange of this type of

information. All of the States had regular access

to the NCIC-Computerized Criminal History

(CCH) file, but only five States were “full”

NCIC-CCH participants in that they were

NCIC-CCH record contributors. Conversely,

and for various reasons, five of the States were

not contributing records to the NCIC-CCH file.

Indeed, these 10 States offered particularly

valuable insights with respect to the NCIC-CCH

issues because of the variety of experiences they

had acquired in dealing with the CCH program

at the State level; e.g., some States had a high

degree of success in implementing the present

CCH concept while other States had less success; some States were eager to participate in the

NCIC-CCH program, while other States conditioned future participation on the need for a

clear position being taken by the Federal

Government, i.e., an unqualified commitment

to the CCH concept.

Further, these States possessed representative

qualities in terms of requisite criminal identification capabilities. Specifically, several States had

already adopted and implemented progressive

measures and capabilities, such as the: single

source submission of fingerprint cards to the

Federal Bureau of Investigation (FBI) Identification Division; the single card submission (i.e.,

the submission of a card only when the identity

of the subject was questionable, etc.); while

other States were only beginning to recently address the need for a modern State-level identification facility as a corollary to the effective

statewide management of criminal records.

In the course of these visits, the Department

of Justice and subcommittee staff officials asked

State criminal justice officials a series of questions dealing with the needs of the specific State

which the officials represented, and how such

needs might best be satisfied. The principal

questions were:

1. In discharging intrastate criminal justice

responsibilities, is it necessary to acquire

out-of-State criminal justice data for (a)

wanted persons, (b) wanted properties,

and (c) prior criminal offenses?

68
2.

3.

4.

1f it is necessary to obtain out-of-State information for (a) wanted persons, (b)

wanted properties, or (c) prior criminal

offenses, which data could be obtained

satisfactorily by means of bilateral agreement between States? Which of this data

could be obtained reasonably by means of

regional arrangements? Must any of this

data be the subject of a routine nationwide

inquiry?

If a nationwide information interchange

facility is required to exchange criminal

justice information for (a) wanted persons, (b) wanted properties, or (c) prior

criminal offenses, what is the proper and

preferred role of any participating Federal

agency? That is, should the role and

responsibility of a participating Federal

agency be similar to that of a participating

State, or should the participating Federal

agency have responsibility for the administration of the nationwide criminal

justice information interchange facility?

If a Federal agency is to be responsible for

the administration of a nationwide criminal justice information interchange facility, should that agency be one which does

not have operational law enforcement

responsibilities? More specifically, if a

Federal agency is a proper and preferred

agency to administer such a facility,

should that responsibility be vested in the

FBI?

5. What changes, improvements, etc., a r e

needed in terms of the existing capabilities, procedures, etc., which govern the

inter jurisdictional exchange of criminal

justice information? What problems, if

any, are associated with the present

criminal identification process in which

local criminal justice agencies submit

identification requests directly to the FBI?

Are the present methods of processing

such requests adequate and responsive to

the needs of the State criminal justice community? What alternative methods would

be preferable?

6. Do the present methods associated with

the collection, storage, and exchange of

criminal records afford State officials adequate control over access to, and dissemination of criminal records? What, if

anything, must be done to remedy any existing shortcomings?

RESPONSES OF STATE

CRIMINAL JUSTICE OFFICIALS

Without exception, all of the State officials

agreed that the convenient and rapid acquisition

of out-of-State data pertaining to wanted persons, wanted properties, and prior criminal offenses was essential to the proper discharge of

their statewide responsibilities. State officials

emphasized the increasing level of contact between criminal justice authorities in their States

with nonresidents, and offered convincing arguments that the equal treatment of offenders is in

part dependent upon the equal availability of

appropriate and relevant information at all

stages of the criminal justice process,

With respect to the acquisition of criminal

justice information, State officials emphatically

rejected bilateral or regional arrangements for a

variety of reasons. Frequently, the State officials cited shifting priorities within many

States as a result of changes in administration,

the tensions which occasionally arise between

neighboring States, the fact that offenders with

whom State criminal justice officials come in

contact are not exclusively from any particular

grouping of States, the constraining experiences

and limited success associated with previous

localized or regional undertakings, etc.

In strongly endorsing the need for a nationwide reference (index) capability for wanted

persons, wanted properties, and prior criminal

offenses, State officials repeatedly and without

exception expressed a preference for a federally

administered facility. The State officials frequently pointed out that a federally administered facility is “neutral” in terms of its dealings

69
with State agencies and tends to be uniformly

responsive to all States. Further, recognizing the

sensitivity of the subject matter which would be

processed by such a facility, many State officials

expressed the view that a federally administered

facility would be subject to greater scrutiny and

hence, would more likely be in compliance with

existing laws, regulations, and policies than a

facility administered by a non-Federal entity,

such as a consortium of States, etc., (In responding to this particular question, State officials

were asked to assume that Federal funds would

be available to any nationwide servicing facility, whether administered by a Federal agency,

or otherwise. )

While many State officials expressly or implicitly recognized that in the longer term a

Federal agency other than the FBI could provide

the services expected of a nationwide criminal

justice information interchange facility, there

was a clear consensus that the FBI should continue to provide such services in the foreseeable

future. The State officials repeatedly stated that

notwithstanding creditability problems which

the FBI might have with some public or private

organizations, officials, etc., it enjoys substantial creditability within the criminal justice community in terms of professional qualifications

and capabilities. Some State officials appeared

to be of the opinion that the question of the FBI’s

lack of creditability within the community at

large is exaggerated, and insofar as they were

concerned or insofar as the citizens of their State

might be concerned, it was not a significant

public issue. Nevertheless, virtually all of the

State officials recognized the problems confronting the FBI, but believed that the establishment of proper oversight measures would be an

appropriate response to most criticism of present or future servicing arrangements.

However, State officials were outspokenly

critical of the Federal Government generally,

and specifically of the Department of Justice, the

FBI, and to a lessor extent, LEAA. Each of the

following criticisms was frequently expressed by

officials in many of the 10 States which were

visited, and in some instances, the criticism was

encountered in every State. The most important

criticisms addressed:

1. The indecisiveness of the Federal Government in terms of its support for both

NCIC generally, and the CCH program

specifically. State officials frequently

spoke of the degradation of NCIC services

in recent years, and the apparent inability

of the Department of Justice to establish a

clear direction for the CCH program, In

this regard it was learned that a number of

States which are not presently contributing CCH records to the national

system have already established operational CCH capabilities at the State level

and are ready to participate in a decentralized CCH program. However, they

will not do so until a clear policy decision

is reached by the Federal Government.

2. State officials were critical of fragmented

responsibility within the FBI with respect

to criminal history records. Some were

particularly critical of the fact that the

Identification Division “rap sheet” operations was organizationally separated from

CCH program operations; that neither the

Identification Division, the CCH program, nor the NCIC Section of the FBI

had authority to establish effective and

binding priorities for system services; that

the automatic data processing services,

telecommunications services, etc., which

support the activities of the States were

subject to a decision process in which internal FBI needs were addressed vis-a-vis

the needs of the States, etc.

3. The need to remedy a long-standing

source of difficulty associated with the

direct, routine, and frequently unnecessary submission of fingerprint cards from

the arresting agency to the FBI Identification Division. Specifically, officials in

every State endorsed an improved procedure by which arresting agencies within

their State would submit fingerprint cards

to the State Identification Bureau, and the

State Identification Bureau would only

forward to the FBI Identification Division

fingerprint cards pertaining to persons

whom the State Identification Bureau

could not definitively identify (first-time

offenders within that State, persons using

an alias, etc). State officials strongly supported the proposal that where the identity of the arrestee was not at issue

because of a prior contact with State

70
criminal justice authorities, etc., the practice of routinely submitting fingerprint

cards to the FBI should be discontinued.

(State officials did recognize that this

would, in many instances, require States

to accept increased responsibility for

managing the criminal identification process as well as increased responsibilities i n

terms of criminal records operations.

State officials also pointed out that this

would require the cooperation of the FBI

Identification Division. Various State officials acknowledged that the FBI had been

generally supportive of such efforts, but

several officials indicated that occasionally the FBI Identification Division has

been less than fully supportive of innovations of this kind. )

The present methods governing the interjurisdictional exchange of criminal

records, stressing that it is not meeting the

needs of State and local criminal justice

agencies. That is, when an arresting agency forwards a fingerprint card to the FBI,

the typical elapsed time before the arresting agency receives any response is in

excess of 2 weeks. State officials time and

time again stressed the growing needs of

criminal justice officials such as prosecutors, magistrates, judges, etc., for

more timely responses. The officials emphasized that such responses were no

longer expected in timeframes such as

weeks, days, or even hours; rather, some

officials expressed the view that data pertaining to prior out-of-State criminal offenses must be immediately available.

While not all State officials set so formidable a requirement, all State officials

did express the view that such data must

be available within hours if they are to

comply with the emerging expectations of

the States which they serve. (It should be

noted that this level of system response

was discussed in terms of prior criminal

offense data only. ) All State officials

believed that virtually instantaneous access/response was absolutely essential in

terms of wanted persons, wanted properties, etc. And, in this regard, all of the officials believed that the Federal Government generally, and specifically the

Department of Justice, the FBI, NCIC,

5.

6.

etc., were failing to support properly the

various State criminal justice communities

which NCIC was established to serve.

The lack of State control over State

criminal records presently held in the central repository maintained by the FBI

Identification Division. In this regard, it is

necessary to recognize that the manually

maintained criminal record, or “rap

sheet, ” now held in the central repository,

is a composite chronological listing of offenses/dispositions associated with a particular individual. Offenses/disposition

from multiple jurisdictions may be included in any particular record, and this

criminal record is updated and released by

the FBI whenever an authorized agency

makes a request for the records. This practice has become particularly objectionable

to officials in States which have enacted

legislation mandating strict State control

over access and dissemination of criminal

records.

Many, although not all State officials,
the course of the visits to the various

States, it became quite clear that LEAA

never adequately comprehended or addressed programmatically the critical relationship between the criminal identification process and the interjurisdictional exchange of criminal records.

A CONSENSUS CONCEPT

Possibly because of the lingering impasse, and 2.

the spreading and intensifying dissatisfaction

among officials in all of the States, officials in

the 10 States eagerly analyzed and commented

on alternative concepts for a nationwide criminal justice information interchange facility.

There was marked agreement as to what conceptual arrangement would best satisfy the

needs of the States. The concept which enjoyed

the unanimous support of State officials is most

easily described by a discussion of the process

and procedures associated with the concept.

Specifically:

Identification Procedures

1. Following an arrest the arresting agency

would send/transmit the subject’s fingerprint card to the State Identification

Bureau. If this arrest was the first contact

between the subject and the criminal justice authorities of that State, a definitive 3.

identification could not be made as the

subject might have engaged in criminal activities in either the same jurisdiction

under a different name or in another jurisdiction under either the same or a different

name. (Note: If the State had a fully developed “technical” fingerprint search capability it would be able to make a definitive

identification of all subjects who had previous contact with the criminal justice

authorities of that State. ) Accordingly,

the State Identification Bureau would forward/retransmit the fingerprint card for

each first offender (within the jurisdiction)

to the FBI Identification Division in order

to establish the definitive identification of

the subject. In all such instances, the

response from the FBI would consist of the

FBI identification number assigned to the

subject, and any other identities which the 4.

subject is known to have previously used.

The FBI identification number and such

identification information as is necessary

to establish the identity of the subject

would be transmitted by the most rapid

means to the State Identification Bureau.

At that point, the State identification

record could be completed, and thereafter

would contain both the State identification number and the FBI identification

number. State officials would then determine whether the offense was of such a

nature that the existence of the criminal

record should be reflected in a nationwide

index. If the offense met both State and

national criteria for entry in a nationwide

index of decentralized criminal history

records, then the State authorities would

transmit, for index entry purposes only,

the identification segment of the record

established at the State level.

On all subsequent and appropriate contacts between the criminal justice authorities of that State and a person for whom

the State Identification Bureau has previously created a record, the arresting

agency would continue to send/transmit

the subject’s fingerprint card to the State

Identification Bureau. However, since the

State would ordinarily be able to make a

definitive identification based upon prior

contact, it would not be necessary to forward/retransmit the subject’s fingerprint

card to the FBI, nor ordinarily would the

State have to take any action with respect

to the nationwide index (unless there was

a significant change in the identification

data contained in the index, e.g., amputations, etc. )

Record-Accessing Procedures

In contrast to present procedures whereby

each arresting agency, or authorized crim72
inal justice agency now routinely obtains

“rap sheet” or CCH record data from the

one or both of the centralized FBI repositories (Identification Division or NCICCCH files), under the revised procedures

access to the criminal records of all States

would be subject to multiple, albeit increasingly automated review processes.

Specifically, any time an arresting

agency—or a criminal justice agency making an inquiry under nonarrest procedures—wished to access a criminal

record it would transmit the inquiry to its

State crime information center. Each such

inquiry would contain a “purpose” code

as well as a “scope of search” code—

indicating whether a statewide or a nationwide search was desired.

5. If a statewide search was requested or

otherwise indicated, the State crime information center would process the request in accordance with State law, reg6. If a nationwide search was requested, the

State crime information center would determine whether a nationwide search for

the purposes specified was consistent with

State law, regulation, and policy. If so, it

would log the request and retransmit it to

the nationwide criminal justice information interchange facility (nationwide servicing facility). Upon receipt, messagecontrol data associated with the inquiry

would be logged at the nationwide servicing facility and a search would be executed against the nationwide index

data—providing that the purpose of the

search conformed to Federal law, regulation, and policy, If the nationwide index

search revealed no prior entry, the inquiring State crime information center would

be notified promptly, and they in turn

would furnish the inquiring agency of the

results of the search of State records, as

well as the “no record” result of the nationwide index search.

7. If the search of the nationwide index

revealed a prior entry, the nationwide

criminal justice information interchange

facility would further retransmit the request for the subject’s criminal record

(along with the identity of the requesting

agency and the purpose for which the record is being requested) to each of the

States to which the index “points” as being

in possession of relevant criminal record

information. No response would be made

by the nationwide servicing facility at this

stage of the process to the inquiring State

crime information center, nor by it to the

agency which initiated the inquiry.

8. Upon receipt of a record request from the

nationwide criminal justice information

interchange facility, each State crime information center which had bee n

“pointed” to as holding relevant criminal

record data on the subject would log the

request and determine whether the release

of the data to the inquiring State crime information center (and the inquiring agency) for the indicated purpose was consistent with its State laws, regulations, and

policies. If the request met the release

criteria of the State(s) holding the record,

and if the data met the standards (which

must be established or validated in each

State) of accuracy, completeness, and currency, then the State crime information

center(s) would transmit back to the nationwide servicing facility the requested

information in a standardized format.

Conversely, if for any reason any State

holding a record declined to release a

record upon which an inquiry was made,

an appropriate response would be transmitted to the nationwide servicing facility.

In either event each State crime information center would log its reply transmission.

9. Upon receipt of responses from the

State(s) to which the nationwide index

had pointed, the nationwide criminal

justice information interchange facility

would log message-control data associated with all replies, modify the index

pointers (as necessary to conform to certain negative responses), and assemble the

replies into a single integrated response to

be transmitted back to the inquiring State

crime information center. Message-control data associated with the integrated

73
10.

response from the nationwide servicing This conceptual design of a decentralized nafacility, and the receipt of the message by tionwide system of criminal history records prothe inquiring State crime information vides State officials with maximum control over

center would be logged. State records while permitting the reasonable

exchange of these records between identifiable

Upon receipt, the inquiring State informa- agencies for known purposes. If implemented,

CONCLUDING OBSERVATIONS

The brief description of a consensus concept

and the accompanying procedural changes are

not intended to be a definitive systems design.

Rather, they are indicative of the principal features of a system which would restore a balance

of responsibility among the States and the Federal Government. This balance has been absent

for the past half-century in the areas of criminal

identification and criminal records.

But the purpose of restoring a balance long

lost is not the principal reason why corrective

action should be taken immediately. Rather, the

more compelling reasons arise from the indefensible situation which presently exists; that is, a

situation in which State criminal records are

maintained in a fashion which does not put

State and local criminal justice agencies in the

best position to ensure the accuracy, completeness, and currency of State criminal records; a

situation in which the response to a record request is so lengthy in term of elapsed time that it

works to the advantage of the career criminal

and to the disadvantage of the first offender;

and a situation which affords State officials virtually no effective control over dissemination of

State criminal justice data.

If this situation existed under circumstances

where it was the best that our society could do,

it would be unfortunate; for it to exist in a society such as ours, where we know we can do much

better, there is no reason for further delaying

the necessary corrective efforts.

In terms of corrective measures, the next

logical step would be for the Department of

Justice to acquire validating endorsements of the

conceptual and procedural features indicated in

this report. This might best be done by the

broad circulation of this report to all relevant

Federal and State agencies, appropriate public

and private organizations, etc. Thereafter, the

next logical step would be for the Department of

Justice to obtain Program and System Design

Proposals. In this respect, the Department, in

concert with the cognizant congressional authorities, could select a distinguished panel of

State officials to develop and present for appropriate consideration the required Program

and System Design Proposals. Alternately, the

Department, in similar concert with the cognizant congressional authorities, could commission several qualified private organizations to

develop and submit the required Program and

System Design Proposals.

In either event, an unrelated panel of Department officials, congressional authorities, State

officials, and other public representatives

should be constituted to review and recommend

implementation of the most suitable approach.

74
SEVERAL FOOTNOTES

This report, apart from its conclusions nd

recommendations, attempts to set forth faithfully the views of many State officials on a highly

controversial and important criminal justice

matter. It obviously will not be pleasing to all,

nor is it so intended. Nevertheless, to the degree

that it reflects accurately the prevailing situation

and the views of the officials in the 10 States

which were visited, the public is well served.

In the interest of furthering the readability of

a report dealing with a highly complex situation, detailed distinctions, amplifying commentaries, etc., have been avoided throughout the

body of this report. However, several important

footnotes are appropriate at this point; specifically :

Not mentioned elsewhere in this report is

the fact that these issues were discussed

with a number of general government

State officials, as well as municipal and

county officials, including Mr. Doug Cunningham and his associates in the California Governor’s Office, Assistant Sheriffs

Tom Anthony and Robert Edmonds of

Los Angeles County, and Messrs .

Frederick Gustin, Victor Riesau, and

Richard Humphries of the Los Angeles

County Sheriff’s Office Technical and

Detective Divisions, respectively. Further,

the findings contained in this report were

reported to the Board of Directors of the

National Law Enforcement Telecommunications System (NLETS), Inc., and

an ad hoc meeting of SEARCH Group,

Inc., representatives. While it would be

presumptuous to attribute a position on

this matter to either organization, it appeared that there was a considerable level

of support for the same concept and procedures which appears preferable to State

officials.

All State officials were asked to comment

on the possibility of using NLETS services

in lieu of NCIC generally, or in lieu of

NCIC-CCH services specifically. All officials considered such a proposal totally

unacceptable and endorsed the June 12,

1975 agreement between the NCIC Advisory Policy Board and the NLETS Board

of Directors. This agreement dealt with

the proposed distribution of service responsibilities between the two systems.

One State (Illinois) suggested, however, a

minor modification to the agreement in

one area, that associated with NCIC “hit”

confirmation messages.

Most, if not all State officials believed that

LEAA must address more directly the

needs of the State identification functions,

and the relationship between the identification process and criminal record

operations. Notwithstanding the fact that

LEAA has funded several attempts at innovation in this area, its contribution to

the improvement of State identification

capabilities is generally regarded as

modest, if not meager in nature.

One prominent State official astutely

pointed out that the NCIC Advisory

Policy Board may serve a valid purpose as

an advisory instrument for the Director of

the FBI and might be left undisturbed so

that it can provide continuing operational

insights. However, this official stressed

that it lacks the broad public and criminal

justice community representation which is

appropriate for the formulation of national policy in this sensitive area. This official recommended consideration be

given to the establishment of a truly independent regulatory commission.

Although the description of the consensus

concept in this report does not address the

readiness of the various States to participate in the improved conceptual arrangement, attention has been given to

this in the meetings which were held with

State officials. There is no prohibitive or

even formidable reason that would prevent the consensus concept from being implemented promptly by all States.

The representatives of the Federal Government who participated in this fact-finding

effort included Messrs. T. Breen and R.

Starek of the staff of the House Judiciary

Subcommittee on Civil and Constitutional

Rights; E. DoIan of the Department of

75
Justice; J. Daunt in the capacity of special

consultant to the Department of Justice; J.

Cochran, F. Still, F. Buell, and R. Young

of the FBI; H. Bratt, and S. Ashton of

LEAA; L. Bastian of the Department of

Justice, and M. Lane of the Department of

Treasury. Both Mr. Bastian and Mr. Lane

are presently serving with the President’s

Reorganization Project for Law Enforcement.

7. Since footnotes have not been employed

in the preparation of this report each of

the participating officials indicated in

footnote 6, above, have reviewed this

report and have been invited to provide

individual concurring, dissenting, or amplifying comments. By and large, the comments which have been received were

orally communicated, and have resulted

in modifications to the language employed

in earlier drafts of this report. Written

comments received by March 3, 1978, are

attached.

76
APPENDIX C

Chronology of CCH

(This chronology describes some NCIC/CCH events brought to public attention by the press and

Congress. It is by no means complete. A more definitive list would form part of the formal OTA

November 1971

Bible Rider to the Supplemental Appropriations Act of 1972 gives FBI authority to continue dissemination of arrest records negating

the effect of the Menard decision.

January 1973

GAO report says Department of Justice has

not determined costs of developing a fully

operational CCH system, thus preventing

States from determining whether they can afford to participate. Also, users have no assurance that data entered into CCH is complete/accurate because not all arrests/dispositions are being reported by participating

States. Report adds that LEAA/FBI agree

with above critique but aren’t doing enough

to correct problems. Specifically, LEAA is

collecting cost information as part of its Comprehensive Data Systems program (CDS), but

not all States exchanging CCH records are required to participate in CDS, and State submissions to CDS will not show separately the

costs of developing CCH exchange capability.

Regarding the arrest/disposition reporting

problem, GAO says NCIC’S plan to inform

participating States, periodically, of the

specific CCH records for which no dispositions are available, will fail to remedy “a

serious system deficiency” because simply informing the States that certain records are incomplete will not prevent users from acquiring the information and acting on it despite

this shortcoming.

Spring 1973

Alaska and Iowa enact statutes governing use

of criminal history records.

June 1973

Massachusetts refuses to participate in the

CCH program until safeguards are adopted at

the Federal level. Justice Department sues to

77
gain access to data in the Massachusetts State

files by the Small Business Administration.

July 1973

Kennedy Amendment to the Crime Control

Act of 1973 requires LEAA to issue regulations controlling LEAA-funded State criminal

justice data systems.

July 1973 . HEW Report, Records, Computers, and the

Rights of Citizens, is published. It proposed

limitations on automated personal data

systems on the Federal Government.

August 1973

Massachusetts Governor Francis W. Sargent

and others petition Justice Department to develop standards governing criminal history

records.

February 1974

LEAA proposes regulations to control criminal justice information systems which receive

Federal funds.

February 1974

S. 2963, drafted by Senator Ervin, together

with S. 2964, drafted by the Justice Department, and introduced by Senator Hruska, are

referred to Senate Constitutional Rights Subcommittee. (Neither bill was enacted. )

October 1, 1974

Deputy Attorney General Silberman authorizes FBI to engage in “limited” switching of

NCIC-related messages, provided the Bureau

prepares an implementation plan that is approved beforehand by the Attorney General.

April 14, 1975

FBI releases a “National Crime Information

Center Limited Message-Switching Implementation Plan. ”

May 20, 1975

Justice Department, after redrafting regulations proposed in February 1974 on the basis

of subsequent comments, publishes the new

Rules in Federal Register “governing dissemination of criminal records and criminal

history information. ” These regulations provide privacy safeguards of individual records

in files maintained and administered by the

FBI, criminal justice exchange of records.

Also, the regulations require State criminal

history record information to be stored and

processed in dedicated computer system.

June 19,1975

LEAA regulations become effective.

July 1,1975

Senator Tunney, Congressman Edwards introduce S. 2008/H.R. 8227 to control

dissemination of information from criminal

justice information systems. The bills, identical to each other, include a Federal

regulatory commission similar to one proposed the previous year, by Senator Ervin in

S. 2963. (The Tunney/Edwards legislation

was not enacted. )

October 24, 1975

Justice Department modifies regulations to let

States use shared computer facilities, if proper

precautions are taken. Justice also announces

it will hold hearings to consider changes in

provisions covering dissemination of criminal

history record information.

November 1975

Attorney General Levi defers decision granting FBI permission to implement NCIC message-switching capability, after congressional

critics and others express fears that agency

will gain too much power,

March 19, 1976

Following December Justice Department

hearings to assess balance between public’s

right to know such information and right to

privacy, LEAA adopts amended regulations

covering records dissemination and sharing of

related computer systems. In effect, rules

leave the dissemination up to the individual

States. Each State must submit a plan describing its dissemination and security procedures.

After review and approval by LEAA, these

procedures must be implemented in each

State by December 31, 1977. States must devise plans that comply with requirements

specified in amended regulations and are

allowed to use shared computers to store and

process criminal history record information,

provided systems satisfy criteria specified in

regulations.

April 16, 1976

FBI Director Kelly requests permission from

Attorney General Levi to terminate FBI participation in CCH program because the cost

and effort of maintaining the centralized CCH

system was “grossly underestimated, ” the intergovernmental relations problems are “legion, ” and the Bureau “cannot move ahead

with its plans to decentralize CCH because it

78
does not have message-switching authority or

capability. ”

April 5, 1977

FBI Director Kelley requests authority from

Deputy Attorney General Flaherty to implement a new NCIC message-switching plan,

unrelated to CCH. The proposed switch

would provide Federal agencies “and localities such as Puerto Rico” with access to

NLETS through NCIC communication circuits. It would also enable the Royal Canadian Mounted Police information center in

Ottawa, Canada to access non-CCH NCIC

files.

April 15, 1977

FBI Director Kelley reiterates his request to

terminate FBI participation in CCH.

May 10, 1977

Congressman Edwards, in a letter to Deputy

Attorney General Flaherty, suggests that the

ultimate decision by the Justice Department

regarding CCH and message switching should

be preceded by testimony before the House

Subcommittee on Civil and Constitutional

Rights.

May 19, 1977

Deputy Attorney General Flaherty approves

FBI April 5th proposal but cautions that “this

approval should not be construed to authorize the switching of CCH messages. ”

May 19, 1977

Deputy Attorney General Flaherty advises

FBI Director Kelley not to terminate FBI participation in CCH pending review of the matter by Flaherty’s staff.

June 7, 1977

Congressman Edwards asks Deputy Attorney

General Flaherty to defer approval of FBI’s

April 5th request for limited messsageswitching capability “until we have testimony” from the Department of Justice and

other interested parties.

July 11, 1977

Deputy Attorney General Flaherty revokes

his May 19th memo authorizing FBI to proceed with limited message-switching plan.

Flaherty says “we are thoroughly reviewing

the subject of message-switching. . . in cooperation with Members of Congress. ”

August 3, 1977

Scientists Institute for

(SIPI), after evaluating

Edwards subcommittee,

Public Information

NCIC at request of

issues critical report.

It alleges, among other shortcomings, that

NCIC data and procedures are not audited

regularly, and that the system’s actual benefits “remain in the area of surmise. ”

September 12, 1977

Congressmen Edwards, Rodino ask OTA to

conduct study of NCIC for House Subcommittee on Civil and Constitutional Rights.

September 28, 1977

FBI responds to SIPI report, disagreeing with

most of its findings. For example: NCIC is audited, although not by an independent agency, and it is “incorrect to say that the actual

benefits of NCIC ‘remain in the area of surmise. “

September 29, 1977

Deputy Attorney General Flaherty, in letter

to Congressman Edwards, proposes “interim

measures” to improve NCIC operation. They

include:

a) Continuing FBI participation in CCH

while taking steps to decentralize the files.

The first step would be adoption of a CCH decentralization blueprint, developed “in concert with Congress” and other interested parties.

b) Adding message-switching capability to

NCIC’S computer system but not employing it

until the blueprint is approved.

c) Negotiating with GAO to provide an independent NCIC system audit capability.

d) Reviewing NCIC Advisory Policy Board

reporting procedures to ensure their “maximum effectiveness. ” Deputy Attorney General says he favors having Board report

directly to the Attorney General or Deputy

Attorney General through the FBI Director.

October 20, 1977

Congressman Edwards, answering Deputy

Attorney General Flaherty’s September 29th

proposal, emphasizes need to develop standards assuring that CCH records, when distributed to the States, will be protected

against misuse. Congressman Edwards also

says the Justice Department blueprint should

consider seriously whether another agency—

NLETS or some similar one—should perform

message switching. He recommends that

Justice consider adding “persons not directly

involved in the NCIC System” to the NCIC

Policy Advisory Board.

December 6, 1977

Justice Department gives States until March

79
1, 1978, to implement dissemination/security

regulations issued in March 1976. The original deadline was December 31, 1977.

December 13, 1977

Attorney General Bell proposes abolishing LEAA and replacing it with a National Institute

of Justice. The official reorganization proposal is to be submitted to Congress in the

spring of 1978. Major provisions: State criminal justice plans and projects would no

longer require prior Federal approval; regional criminal justice planning boards would

no longer be subsidized by the Federal Government; administrative costs would be

funded by the Federal Government on a more

limited basis, requiring dollar-for-dollar matching by State/local recipients.

January 6,1978

SIPI responds to FBI comment on 1977 SIPI

study of NCIC. “It is our considered opinion

that an indepth study of NCIC, performed by

the Office of Technology Assessment, the

General Accounting Office, a qualified independent organization, or all three is called

for.”

95th Cong., 2d Session: No legislation was

enacted. Hearings and studies continued on

LEAA restructuring and guidelines before the

House Judiciary Subcommittee on Crime and

the Senate Judiciary Subcommittee on Criminal Laws and Procedure. The full Senate

Judiciary Committee also conducted hearings

and studies related to the FBI statutory

charter. This subject is also of concern to the

House Judiciary Committee.

80
APPENDIX D

Glossary

AIDS—’’Automated Identification Division

System, ” a computerized system being developed for use within the FBI Identification Division that will eventually provide for automatic

name and fingerprint searching.

arraignment —The judicial process by which

an individual accused of a criminal offense is

brought before a judge to enter a plea to the

charge.

arrest record information—See Criminal Justice Information.

audit—The processes by which: a) the accuracy, completeness, and relevance of CCH

record data are verified; b) CCH recordkeeping

practices and CCH data are examined for compliance with applicable regulations. (See oversight. )

Comprehensive Data Systems Program—

Launched in 1972 by LEAA, this program

finances the development of State systems to

standardize, integrate, and centralize the assembly and processing of criminal justice statistical

data. Each system must include capability to

track offenders through the criminal justice

process and exchange criminal history records

with other jurisdictions.

CCH—Computerized Criminal History—A

record, maintained in machine-readable form,

which contains information collected by a criminal justice agency on an individual and which

includes: identification record information, arrest record information, criminal record information, and/or disposition information. (See

“criminal justice information” for definitions of

these terms. ) An individual whose recorded

charges were filed within a single State is

represented by a “single-State” CCH record. If

the charges were filed in more than one State,

the entries comprise a “multi-State” CCH record.

correctional and reIease information—See

Criminal Justice Information.

Criminal History Record Information System—A system including the equipment, facilities, procedures, agreements, and organizations

thereof, for the collection, processing, preservation, and/or dissemination of criminal history

record information. The Department of Justice

criminal history record information system encompasses the Identification Division and the

Computerized Criminal History (CCH) fiIe systems operated by the FBI.

criminal intelligence information—See Criminal Justice Information.

criminal investigative information—See

Criminal Justice Information.

criminal justice agency—a) any court with

criminal jurisdiction; b) a government agency or

any subunit thereof which, pursuant to statute

or executive order, has responsibilities involving the apprehension, detention, pretrial release, post-trial release, prosecution, defense,

adjudication, or rehabilitation of accused individuals and/or convicted offenders.

criminal justice information—includes any or

all of the following:

a) Identification record—information describing an individual that does not suggest he

has committed a crime—e.g., voiceprints, photographs, fingerprints.

b) Arrest record—information concerning

the arrest and charging of an individual who has

been accused of a criminal offense. Arrest record information does not include any reference

to disposition of charge(s).

c) Criminal record—when disposition information is added to an arrest record, it

becomes a “criminal record” (sometimes called a

conviction record).

d) Disposition—a record entry or entries

disclosing 1) that a decision has been made not

to bring criminal charges against the subject of

the record, or 2) that criminal proceedings have

been concluded, abandoned, or indefinitely

postponed. If an individual is convicted and

sentenced, the related disposition information

includes the nature of the sentence and subsequent events—e.g., release from correctional

supervision, the outcome of appellate review,

and/or executive clemency action.

81
e) Correctional and release record—information on an individual compiled in connection

with bail, pretrial or post-trial release proceedings, presentence investigations, and proceedings to determine the individual’s physical or

mental condition. The term also includes information on an inmate’s participation in correctional /rehabilitative programs, as well as information related to probation/parole proceedings.

f) Criminal intelligence record—information on identifiable individuals compiled in an

effort to anticipate, prevent, or monitor possible criminal activity.

g) Criminal investigative record—information on identifiable individuals compiled in the

course of investigating specific criminal acts.

h) Wanted person record—identification

record information on an individual against

whom there is an outstanding arrest warrant.

criminal record information—See Criminal

Justice Information.

data quality—A measure of the accuracy,

recency, completeness, and validity of NCIC

records.

dedicated system—A computer or terminal

complex, managed by a criminal justice agency,

and used entirely for a criminal justice data

processing application.

disposition— See Criminal Justice Information,

distributed data processing (DDP)—An arrangement of computers and/or intelligent terminals that allows some processing to be done

at a central Iocation and the rest at remote locations connected to the site by communications

circuits. In the NCIC system, remote processing

usually occurs at the State level, but there may

also be some done within terminals operated by

local criminal justice agencies.

dossier society —A society in which computerized records are maintained on individual

citizens and are used by government to monitor

citizen activities so as to discourage political dissent and other types of disapproved behavior.

downtime—The total time that a computer

system is out of service because of system outages and/or maintenance. “Outage time” refers

to downtime which is due solely to system/component failure.

expungement—In connection with NCIC records, this term has been used interchangeably

with “purging” or “sealing” of record information. It may or may not mean that information

has been physically destroyed.

FBI message-switching plan—A proposal,

currently under review within the Department

of Justice and Congress, which would alter the

operation and architecture of the NCIC system.

Basically, the plan calls for locating all singleState CCH records within the States originating

these records and installing a computerized message-switching subsystem at the NCIC in Washington so that a user requesting information

from such a record could be connected directly

to the agency holding it.

flag-A proposed entry to the identification

portion of SSORI and full CCH records. The

flag would signify that a specified criminal

justice agency wished to be informed if and

when certain events occurred subsequently. For

example, the flag could indicate that a parole or

probation agency wanted to know if the subject

of the record had been arrested prior to the termination of his parole or probation.

front-end controller—An interfacing device,

pIaced between a computer and an associated

communications network, which manages communications between the computer and remote

terminals attached to the network circuits. This

function generally includes, but is not limited

to, initiation and termination of message transmission, error detection and control, routing of

each message to its proper destination, and control of the message flow to prevent excessive

transmission delays for specified types of messages and/or users. The front-end controller

may also switch messages among multiple users

of the network.

hit—A positive response to a request from an

authorized user for an NCIC record. The response consists of either the text of the record (if

it is held by the NCIC computer center) or an

abbreviated summary containing a numeric

code which identifies the State criminaI justice

agency holding the full text.

identification record information—See Criminal Justice Information.

Justice Department Blueprint—The popular

name of a plan for future development of the

Nation’s criminal justice information systems. A

basic aim of this effort, which began in the fall

of 1977 after consultation with the House Subcommittee on Civil and Constitutional Rights, is

to achieve a consensus—among users, Congress, and pubIic interest groups—regarding the

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needs for and uses of the NCIC system.

LEAA—An acronym for the Law Enforcement Assistance Administration, a part of the

Department of Justice. LEAA dispenses Federal

funds to the States for criminal justice information systems and establishes many of the policies concerning their operation.

NCIC—An acronym for “National Crime Information Center, ” the physical location within

the FBI’s Washington, D. C., headquarters of the

NCIC system’s central computer complex.

NCIC Advisory Policy Board—A 26-member

group which makes recommendations concerning NCIC operations and procedures to the director of the system. The Board includes 20

representatives of local, State, and regional

users, and six others appointed by the FBI.

NLETS—An acronym for “National Law Enforcement Telecommunications Systems, ” a nationwide communication network operated by

State law enforcement agencies, which provides

them with the capability to exchange administrative messages. Exchange of full, single-State

CCH records between States is part of the

NLETS communications traffic stream.

node—The point where a communications

network interconnects with access circuits to-

/from a user’s computer and/or terminal equipment. Typically, the node contains switching

equipment designed to route messages among

network users. The node may also include hardware/software to perform speed/code conversion, error-detection /control, and other

communications-related functions.

oversight—The process by which Congress

examines NCIC policies and practices to determine whether they comply with relevant legislation. (See audit. )

plea bargaining—The process of pleading

guilty to a lesser charge in order to avoid standing trial for a more serious one.

pointer index—See “SSORI. ”

Project SEARCH—A cooperative, 18-month

Federal-State effort, begun in June 1969, to develop a prototype, online, computerized criminal history exchange system. A key feature of

the design for SEARCH (“System for Electronic

Analysis and Retrieval of Criminal Histories”)

was the use of the central index containing

references to criminal history records stored

within each participating State. A major goal of

the project was to test the effectiveness of this

index as a means of relating record inquiries to

the actual records. In December 1970, when the

SEARCH demonstration ended, Attorney General Mitchell authorized the FBI to take control

of the index. This file became the nucleus of the

present NCIC/CCH system. Project SEARCH

was incorporated in 1974 as SEARCH Group,

Inc., a research and policy advisory group representing present and prospective users of NCIC

services. It includes participation of representatives from each of the .50 States and 3 territories.

purging—As used in connection with NCIC

records, this term means the complete removal

of information concerning an individual from

access, via either routine or special access procedures. Purged information is not necessaril y

destroyed. However, a recommendation to

make destruction mandatory for purged records

has been proposed by the Committee on Security and Privacy of SEARCH Group, Inc.

rap sheet—Synonymous with “arrest record. ”

response time—A measurement of the speed

with which inquiries can be answered by an online information system. The response time

measurement generally begins with the instant

the first message character leaves the inquiring

terminal and ends when the last character of the

answer is received by that terminal.

sealing—As used in connection with NCIC

records, sealing means the removal of information concerning an individual from routinely

available access. The information remains available but only through special access procedures.

(See also: “expungement,” “purging”.)

SSORI—An acronym for the proposed “Single State Offender Record Index,” central

(“pointer”) index proposed to be incorporated

into the NCIC/CCH file under the FBI’s proposed limited message switching implementation plan. The SSORI file would contain a physical description, and possibly information on

the first arrest, of each individual represented

by a single-State NCIC/CCH record. Complete

details of each such record would be stored in

the State which compiled it. When NCIC received a CCH inquiry, the SSORI file would be

searched automatically to determine whether a

single-State CCH record, relating to the subject

of the inquiry, was in any State file. If such a

record was found, the inquiring agency would

be so informed and could then obtain a copy by

communicating directly with the “holding”

State.

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stakeholders—As applied to NCIC, the term wanted person information—See Criminal

means individuals or groups whose interests will Justice Information.

be materially affected by the manner in which

the system is operated and/or its records are

used.

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