The criminal charges against Duncan Eric Burton loomed over discussions at the capitol yesterday about how best to regulate rideshare services like Uber and Lyft in the state of Texas.
Burton, who was arrested last Thursday, has admitted taking a blackout drunk passenger to his apartment, where he then orally, vaginally and anally raped the woman, according to a Houston police officer's affidavit filed in a Harris County court.
We've since learned that Uber's third party background check somehow didn't catch that Burton had released from federal prison in 2012 and was on probation after serving 14 years behind bars on a felony drug charge, something that should have disqualified him from driving for the company. It appears Burton was among the untold number of Uber drivers who still pick up passengers but haven't registered with the City of Houston to undergo a fingerprint-based background check that city officials insist is more rigorous than Uber's system and would have flagged Burton's criminal history.
Yesterday the House Transportation Committee took up House Bill 2440, which would effectively nullify rideshare ordinances like the one in Houston and instead set up a statewide registry through the department of motor vehicles, giving Uber total control to screen its own drivers. Which means Uber was in the incredibly awkward position of getting up in front of lawmakers and arguing that the company's process for screening drivers, which just failed in spectacular fashion, works just fine.
Said Sally Kay, a top lobbyist for the company: "We stand behind the background check system we developed and firmly believe that this rigorous multi-step process is more comprehensive than other criminal checks available."
Under a city ordinance that took effect last November, Uber drivers must register with the City of Houston and undergo a municipal warrant check, physical and drug test, and a fingerprint-based background check that screens drivers against an FBI database. But Uber has long insisted that such local ordinances are too burdensome for its drivers and that its background checks, performed by a private company, are better.
Uber claims drivers who want to register with the city face a daunting backlog and sometimes have to wait weeks for approval. "If we have to comply with a fingerprint mandate, it typically adds many weeks to the process of getting a driver on board and earning money," Kay told lawmakers Thursday.
City officials vehemently dispute the notion that their system is overly burdensome. According to Lara Cottingham, deputy assistant director with the city's Administration and Regulatory Affairs Department, the city bent over backwards to help Uber shepherd drivers into the new city-run certification process last year, setting up an off-site facility solely dedicated to processing Uber drivers with extended 7am-7pm hours. They stopped after a few weeks, Cottingham said, "because, while the permitting process worked smoothly, quite honestly the demand did not meet the numbers that we'd expected."
Cottingham says that, assuming a driver had his or her paperwork in order, there's no way the permitting process would take "many weeks" as Uber has claimed. In an email to the Press, Cottingham laid out the process:
"Total licensing time at [the Houston processing center] today for [transportation network company] drivers is 7-10 minutes, 15 max, including taking the picture and printing the license. This does not include the 5-6 min inspection which is provided onsight by the city free of charge.
The average waiting time at [the processing center] is 19 minutes.
It takes 3-5 days for the background check to process, but can be as quick as 48 hours.
All of this is predicated on the driver filling out the paper work properly. We have offered to conduct driver trainings to help with the application process, but uber repeatedly declined".
The case of Burton, the Houston driver accused of raping a passenger, only underscores a fundamental disagreement between Uber and cities on how best to screen drivers.
Uber's Kay told lawmakers Thursday that the company's third party system is better than the FBI fingerprint check -- she said the employment background check company Uber uses, called Hirease, sends people directly to courthouses to pull records for each applicant.
But in preparation for Thursday's hearing, COH officials drafted a white paper explaining apparent holes in that system. The problem, that report says, is that commercial background check companies don't use a truly unique identifier, like fingerprints, so it's possible to game the system. As an example, the report points to one recent driver who had been cleared by Hirease and then underwent a COH background check. The fingerprint-based check showed the driver had 24 aliases, 5 listed birth dates, 10 listed social security numbers and an outstanding arrest warrant.
As per that report:
"In the three months since Houston's ordinance became effective , the City's fingerprint-based FBI background check found that several applicants for TNC driver's licenses -- who had already been cleared through a commercial criminal background check -- has a prior criminal history. The charges include indecent exposure, DWI, possession of a controlled substance, prostitution, fraud, battery, assault, robbery, aggravated robbery, possession of marijuana, theft, sale of alcohol to a minor, traffic of counterfeit goods, trademark counterfeit, possession of narcotics, and driving with a suspended license."
...TNCs may have a zero tolerance policy when it comes to criminal history of any kind; however, that policy is hard to enforce when the background check fails to identify the criminal record."
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Burton's arrest last week brought to the surface another unanswered question: How many Uber drivers that have been cleared by the company but haven't been vetted by the city are out there picking up passengers? We basically have no way of knowing, since Uber won't say how many drivers it has in any particular city. Uber's Kay, however, did tell lawmakers Thursday that the company has already eliminated some 2,000 drivers from the platform because they didn't register with the city.
In Thursday's hearing, when state Rep. Larry Phillips (R-Sherman) asked how Uber missed Burton's criminal history and cleared him to drive for the company, Kay responded, "I am unable to speak to the particulars of this case but I can tell you that we are absolutely doing our own internal investigation."
"That's really not good enough for me to be honest," Phillips said. "We want to make sure we have safety. If the 10-type (fingerprint background check) would have found it and your background check didn't and you're saying that your background check is better ... that doesn't make sense."
House Bill 2440 was left pending in committee without a vote.