Today, Maine lawmakers upheld the veto of LD 398, “An Act To Require Criminal History Record Information for the Licensure of Nurses" which would have required nurses to be fingerprinted and complete criminal background checks conducted as a condition for licensure.
The Fourth Amendment Right to Privacy - The ACLU of MAINE opposed LD 398 for the same reasons we opposed fingerprinting of teachers and as far back as 1973 after years of lobbying, the successfully persuaded the Maine State Legislature to repeal a law requiring all fifth graders to be fingerprinted - respect for the boundaries established by the Fourth Amendment to the Constitution and the presumption of innocence.
In his statement to the Senate, Governor LePage cited the singling out of nurses from all other health care professions for this treatment. He expressed feeling that there was no evidence to support particular harm posed by nursing to justfy this exceptional requirement.
While we had different reasons for opposing this bill - we are thrilled with today's outcome and thank those in the Governor's office and legislature who have supported the privacy rights of Maine's nurses.
Check our testimony against LD 398 below...
Testimony Regarding LD 398
An Act to Require Criminal History Record Information for Licensure of Nurses
Before the Committee on Labor, Commerce, Research and Development
Presented by Shenna Bellows, Executive Director, ACLU of MAINE
March 17, 2011
Senate Chair Rector, House Chair Prescott, and other members of the committee, my name is Shenna Bellows. I am Executive Director of the Maine Civil Liberties Union, and on behalf of our more than 3,300 members, I urge you to vote “ought not to pass” to LD 398 because the bill raises significant privacy concerns arising from the Fourth Amendment of the United States Constitution.
At the core of the Fourth Amendment is the guarantee that citizens shall not suffer searches or seizures “but upon probable cause, supported by Oath or affirmation.” While a criminal history check itself is not a violation of the Fourth Amendment, the required fingerprinting, especially when your principled refusal will cost you your professional license and therefore your livelihood and career, is in fact a form of coercion if not outright seizure.
Another core American value is the presumption of innocence. LD 398 turns the presumption of innocence on its head; the essential argument for requiring fingerprinting and criminal history checks lies in the State’s unstated suspicion that each nurse is guilty of some unknown crime unless she proves her innocence by submitting to fingerprinting.
For those who would argue that the Fourth Amendment principle is an abstraction, it is important to remember that Maine has traveled down this road before. In 1997, the Maine Legislature passed a similar bill requiring fingerprinting and national criminal history checks of all public school personnel. It should be remembered that, by refusing to submit because of their beliefs, 64 school employees publicly (and perhaps hundreds of others silently) sacrificed their careers as educators. These included some of the most talented, committed and effective teachers in Maine, among them several Teachers of the Year in their respective academic fields. A veteran history teacher in Belfast High School who had the yearbook dedicated to him one year was, due to his refusal, a shipping clerk at Hamilton Marine the next. And this despite his school board having petitioned the State to fix the problem its law was causing them.
But the Fourth Amendment argument is not just one of principle. To submit to fingerprinting, despite claims to the contrary, is to become forever after included in the national database which law enforcement across the nation searches every time it works to solve a crime. If fingerprinting were the infallible science represented on C.S.I., there would be no risk. But fingerprinting technology is still subject to human error or abuse. Take as an example Brandon Mayfield, the Oregon attorney falsely accused by the F.B.I of involvement in the 2004 Madrid train bombings. The F.B.I. maintained that their identification of Mayfield was corroborated by fingerprints from the bombing site which were “100% verified.” In reality, they were not Mayfield’s prints. Closer to home, consider the case of Mainer Bradley Beckett, whose fingerprints taken in the fifth grade in the 1960s were used in 1983 to make him a suspect in a vandalism case of which he was completely innocent. More alarming yet is the case of Julie Grab, a 24-year veteran Bangor teacher who submitted to fingerprinting in 2000 only to have the DOE hold up her re-certification for nearly a year because of a misdemeanor conviction for trespassing 15 years before at a political demonstration over El Salvador. Only when she threatened the DOE with legal action did she receive her license.
Finally, though, an important question about the State requiring fingerprinting of innocent citizens is: is it worth it? Is it somehow effective enough in preventing a possible crime to merit compromising the essential protection of the Fourth Amendment? Data about Maine’s school fingerprinting law makes it difficult to evaluate. We know it cost over $3 million to implement, but a provision of that law prohibited release of any information whatsoever about the program, so we do not know how many people were ever found to have criminal records.
But we do know what happened in another state with a similar law, passed in Missouri in 1998. The entire point of the fingerprinting requirement is to access the national criminal history database. A state needs no fingerprints to access its own criminal records. And when asked to provide a list of license denials or revocations based on out-of-state criminal records—those dependent upon fingerprinting—Missouri’s Department of Elementary and Secondary Education came up with only…four. And not one of the four involved child abuse. In fact, they were for: theft; domestic battery and telephone line interference; and two drug violations. That’s it. That’s what Missouri got for spending millions of dollars on fingerprinting and for compromising the protections of the Fourth Amendment.
We expect that this proposal could be controversial, as the school fingerprinting law became after teachers were required to pay for their own fingerprinting. It is possible that many individual nurses, as the teachers did a decade ago, will resign rather than submit to fingerprinting, out of dedication to the principle of individual privacy and concerns over the ramifications of having one’s fingerprints added to a central database.
Fingerprinting of individuals who are not suspected of any crime contradicts the spirit of the Fourth Amendment. Fingerprinting technology is controversial, expensive, and error-ridden. Reciprocal licensing may be expedient and efficient, but it is not worth the financial and privacy costs of fingerprinting. We urge you to vote “ought not to pass” to LD 398.
