Background Checks, YPP & Freedom
Michael F. Bowman (mfbowman@CAP.GWU.EDU)
Wed, 26 Oct 1994 01:46:53 -0400
In some of my previous postings I've commented on the issue of background
check fees and the fact that most of the implementing law will come from
the different states. This was done with the spirit of trying to make the
best of a bad situation.
In so doing I was trying to stay away from the soap box that seemed to be
calling. But after reading some of the recent postings, I can't resist
making a few comments. Soap Box WARNING! :-) . . .Heat seeker launch:
You do have good reason to be concerned and even afraid of what this new
law may mean and how it may ultimately affect us after the 1996 deadline
for state implementing legislation. Some of our concepts of fairness and
justice are in for a real hammering. In addition there are many dangers
in any new database system that may result from this law. Finally, there
is the question of whether the law will accomplish much in proportion to
the costs it will entail either directly in fees or in taxes. Are there
We already are very much aware that we and anyone who works in youth
serving areas is vulnerable to unfounded accusations, inuendo, and/or
vindictive misuse of the law to gain other ends. The cases reported here
and in the press are alarming and do not show signs of diminishing or abating.
In almost every state there are stories of children being taken from a family
home based on an allegation (too many of which are unfounded) of child abuse,
many before any inquiry is even completed. We know of leaders, teachers,
religious advisors, and others whose lives have been placed under a
permanent cloud affecting jobs, careers, credit, membership in
organizations, and sometimes reulting in financial loss, destruction of
reputation, and dissolution of marriages. And this is made worse by the
media pastime of trying to find the juiciest stories (usually shown out of
context without half the facts) to entice viewers into believing that the
ancetodal stories are representative of the rest of the population setting
off a witch hunt mentality.
There is no doubt that there are real problems with child-abusers and that
we must act and indeed have an obligation to protect our children and
Scouts. No one should disagree that Youth Protection Awareness and
registration checks have discouraged some would be abusers from returning
to Scouting. Most of us would probably agree that we need to do all that
is reasonable to prevent further abuse of children. None of us (I
hope) want to see even one Scout subjected to sexual, physical or mental
So what is reasonable? What is fair and just?
While I won't claim to be a paragon of answers on this, I'd like to
suggest that some of our time-honored concepts of fairness and justice are
being eroded and threatened by the way the laws are developing in this area.
Many have echoed what civics teachers taught us somewhere along the eigth
or ninth grade that we have a Constitutional right not to be presumed guilty.
Now that it how most of us see things. Theres a basic premise that a
person shouldn't be punished unless proven to have committed some sort of
Unfortunately folks, our teachers didn't really do their homework on this
one. The Constitution of the U.S. has never ever said that you are
entitled to be presumed innocent until proven guilty. Read it! Its just
not in the document. What is in the Constitution in Amendments V and XIV
is a statement that "No person shall . . . be deprived of life, liberty,
or property, without due process of law; . . ." This statement applied
only to actions of the Federal Government until the 14th Amendment after
Civil War! It now applies to all state actions.
The idea of innocent until proven guilty comes from court decisions
interpreting the "Due Process" clauses of the Constitution in criminal
cases, where the doctrine has emmerged that a person cannot be found
guilty of a crime until the state proves beyond a reasonable doubt that
the person committed the crime. Hence, the presumption of innocence. But
this applies only in criminal cases!
In civil or administrative law cases the presumption does not exist at
all. In civil and administrative proceedings the burden of proof is much
less and quite early in the proceedings the burden shifts to the accused.
You already know the result. When challenged by the tax folks at the IRS
you have to prove your case. A Government employee may frequently find
that he/she is presumed to have committed a wrongdoing and be in the
position of fighting an uphill battle, where the accuser's identity is
protected by an anonimity agreement made during a hotline call. In child
protection cases the child protective services are allowed to action on
reasonable evidence and may act initially without even confronting the
person with the accuser.
This doesn't seem like what we learned in civics, does it? But that's
where the law has gone.
Now with the advent of the technology to have linked databases, its not
going to get easier or better, when we consider the potential abuses.
Sure, you can challenge a bad credit report and the Federal Government is
required by law to disclose publically any time it uses two databases to
correlate information. But that doesn't protect anyone from a private
organization correlating information or distributing information. In many
cases state and Federal laws allow or encourage agencies to give
information to private organizations; e.g. known child-molesters, accused
child-abusers, etc. Databases already exist for doctors to learn which
potential patients have ever sued a doctor so they can decline such a
It wouldn't take long to catalog the hundreds of databases that
catalog information on each of us. Commercial organizations use census
data to decide who is the best marketing prospect. Your income, jobs,
driving records, finances, social security, and many more areas of
information are in databases. Some of these are subject to some
protection, but there is no overall statute to regulate what a private
entity can do with data it can legally collect. The danger is that a
private entity can decide to engage in "social engineering" or some other
practice with little or no regulation of its conduct.
With access to legally obtainable data it will eventually become
irresistable for an organization to search that data with its own criteria
to weed out what it considers undesirable. What if you had four or five
parking tickets, had a check bounce, had complaints from neighbors, etc.?
Would it be reasonable for the organization to then deny you privileges,
positions, benefits, awards, participation, or even membership? What if
after the organization obtained its data, the traffic court threw out the
tickets, the bank admitted it made a rare goof and it turned out the
complaints of neighbors about alcohol being served to minors were valid,
but they gave the wrong address - yours? Abuse of such a system is easy
and can be quite unintentional, but just as devestating!
In the Youth Protection Area what safeguards are built-in to protect good
people from abuse? I'm afraid I don't know of many or any that I consider
adequate. What controls exist on the disemination of information? What
computer security safeguards are in place? Who has access to the
information? What restraints are there on the sale or trading of the
information? When do you get to challenge bad information? These and
many other questions need to be answered as State legislatures deal with
question of implementing the new law and the proliferation of computer
databases used by organizations to track people.
Now consider what is to be gained by the law. If we are all
finger-printed (I already am at work) and a check is run on us, will that
prevent an abuser from entering Scouting. Absolutely not. It will only
tag someone that has been previously identified as a molester, abuser or
other undesirable sort (maybe on the basis of an unfounded accusation) and
then only if all of the data has been collected properly and classified
correctly. Will that deter a child-molester that has thus far eluded
identification? What would that person have to fear from a check? - Not much?
So we are left with a program that may deter someone who's already been
caught and only if the law enforcement folks made the right entries (like
the masturbating teacher that didn't disclose he was a substitute when
And there's the question of what this will accomplish that isn't already
being accomplished by existing YPP type programs.
What's the cost? The fees even at $50 to $80 wouldn't begin to cover the
cost to the taxpayers, much less special reduced fees for volunteer
organizations. Consider how much it costs to pay each Government employee
involved for the time involved in taking the fingerprints, entering data,
doing the search, and reporting the results (I've heard it costs about
$125.00 just to generate and send a letter) together with the cost of the
computers and other overhead and the math starts to tell you that we are
going to pay some more taxes, see other areas of the budget cut, or
increase public debt to finance this thing.
Is the cost worth what is to be gained? I have my doubts.
Solutions? I don't have a grand plan in mind, but I would suggest that we
need to be educating our legislators and candidates for election in the
next term of our concerns. Wouldn't it be great if there were some
balancing here? Shouldn't some safeguards be built in to protect good people?
Why not suggest that there should be limits on information acquisition and
use, that information in computer databases should be protected with some
degree of security, that we should have the right to see this data and
correct it, that we should be able to confront accusers, that actions
against people should be predicated on something more than reasonable
suspicion, and that cost/risk analysis be done in considering any new
If we fail to register our own concerns with lawmakers, then we have
nobody to blame except ourselves. And since we are in the business of
teaching citizenship, what better way than by demonstration.
Well I've been on the soap box long enough or perhaps too long, so I'll
come to a close with one thought. That is that we need to be vigilent to
protect our Scouts, but that we also need to be careful not encourage a
new era of witch hunting or a new kind of McCarthyism.
Yours in Scouting, Michael F. Bowman, a/k/a Professor Beaver
Deputy District Commissioner Exploring, GW Dist., NCAC, BSA
Speaking only for myself, but with Scouting Spirit . . .
____ mfbowman@CAP.GWU.EDU ____
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City