Case Report – LSAC allowed to substitute submission of photos for fingerprints

You may have heard about the federal Privacy Commissioner’s May 29th report on the Law School Admission Council’s practice of collecting fingerprints from LSAT test takers.  Her office recommended that LSAC cease the practice but allowed it to substitute a practice of collecting test takers’ photographs.

There are some notable findings in the report.  Namely:

  • the OPC rejected LSAC’s argument that it was engaged in educational rather than commercial activity, finding that its core activities provided a service to its member law schools;
  • the OPC held that fingerprints are more sensitive than voice prints and less sensitive than one’s photographic image; and
  • the OPC made another comment de-emphasizing the significance of cross-border transfers of personal information.

The report also highlights the difficulty of sustaining a collection practice based on deterrence alone.  The case for deterrence is often logically compelling, but proving that collecting information effectively deters misconduct is hard.  (For more on this theme, see the IPC/Ontario’s recent surveillance report.)  LSAC had not once used a fingerprint to identify whether fraudulent test since it started collecting them in the mid-1970, so it was difficult for the LSAC to justify its practice on any ground other than deterrence.  It also claimed that it simply wanted to assure its members that it was doing all it could to ensure the security of the test.  The OPC seemed to accept this purpose as legitimate, but not compelling enough to justify collection of fingerprints. The LSAC proposed collecting photographs as a step-down solution mid-way through the investigation, and the OPC held that this alternative would achieve the appropriate balance because images are “marginally” less sensitive.

Report of Findings:  Law School Admission Council Investigation (29 May 2008, OPC).

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