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Privacy Commission orders end to LSAT thumbprints

|Written By Robert Todd

Assistant Privacy Commissioner Heather Black has recommended that the Law School Admission Council stop collecting thumbprints from LSAT test takers in Canada following a complaint under the Personal Information Protection and Electronic Documents Act filed by a University of Victoria professor.

LSAC had used the practice since its 1974-75 testing cycle as a deterrent from “ringers” being used to take the LSAT in place of candidates, but had not once used a thumbprint for enforcement.

Black’s recommendation follows a 2005 complaint from University of Victoria philosophy Professor Eike-Henner Kluge. Kluge said the LSAC thumbprint policy contravened students’ privacy rights and could be used by U.S. law-enforcement agencies under the Patriot Act.

Black ruled that the U.S.-based LSAC falls under the Privacy Commissioner of Canada’s jurisdiction for reasons such as its close relationship with 15 Canadian law schools. She also disagreed with LSAC’s contention that it should be exempted from PIPEDA as an educational institution.

“In my view, the LSAT assesses the pre-existing intellectual abilities of prospective law students for purposes associated with the administrative needs of LSAC’s member organizations and not the educational needs of prospective law students,” Black said in an April letter to Kluge recently made public.

Black noted that, while fingerprinting may be a useful tool to find whether an impersonator has taken a test, in over 30 years of test administration the measure has not been used.

“The prints are not used at the time of collection to ensure that that particular candidate is who she says she is,” she said. “It is therefore possible that a one-time candidate, who has enlisted the assistance of an expert test taker and faked all identification, could ‘pass’ the test without LSAC being any the wiser. Authenticity of the test score would thus not be assured.”

The assistant privacy commissioner also noted that the collection of fingerprints may be useful in some contexts, an entrance exam is not, for example, a matter of national security.

Overall, Black found that, with thousands of fingerprints collecting dust in the LSAC’s possession likely never to be used, “the balance shifts and the loss of privacy is not proportional to the benefit gained.”

She said that the more frequent use of photo identification, which was not as prevalent when LSAC introduced the thumbprint policy in the 1970s, is enough to verify test takers’ identities.

In response to Kluge’s concerns regarding the thumbprints’ use by U.S. authorities, Black said, “I would note, however, that even if the fingerprints were still collected but held in Canada, they would continue to be vulnerable to U.S. and Canadian law enforcement.”

Black gave LSAC 30 days from the release of her April letter to disclose how it has adopted her recommendation.