Law School Admission Council Investigation
May 29, 2008
A complainant objected to the requirement that students enrolled at Canadian universities be fingerprinted in order to write the Law School Admission Test (LSAT). The test’s creator, the Law School Admission Council (LSAC), is a non-profit corporation physically located in the United States and founded to coordinate, facilitate and enhance the admissions process.
LSAC contends that its activities do not fall within the scope of the Act. In support of its position, it relied on “its mandate and preponderant purpose in administering the test, its status as a non-profit, non-stock organization, its membership and governance structure and the public policy aspect in providing an education-related mechanism to assess individuals seeking to enter a regulation profession.” Nonetheless, the organization cooperated with the investigation.
In considering the matter of jurisdiction, the Assistant Privacy Commissioner pointed out that there is no exemption under the Act for non-profit or member-oriented organizations. She also disputed LSAC’s contention that its activities are educational in nature, and instead concluded that its activities serve the administrative and organizational needs of its members. With respect to LSAC’s location outside of Canada, she noted that a statute may apply to persons, property or transactions physically located outside the enacting body’s jurisdiction, if there is a sufficient link between the matter at issue and the jurisdiction of the enacting body. The investigation demonstrated that Canada has a strong presence in LSAC’s governance structure; students in Canada may pay their registration in Canadian funds; LSAC contracts with exam administrators employed by Canadian universities offering the LSAT; tests are performed in Canada; the fingerprints are collected in Canada. As a result, the Assistant Commissioner was satisfied that the link between LSAC and Canada was sufficient to bring the matter within the jurisdiction of the Act.
LSAT is a standardized test administered four times a year at designated testing centres throughout the world. Candidates are notified of the thumbprint and photo ID requirement. At the time of registration, the student is given an admission ticket to bring to the test centre on the day of the exam. There are two boxes on the ticket that are reserved for the candidate’s thumbprints, and a place for the candidate’s signature.
On examination day, there was an on-site registration process, during which the student brought the admission ticket, provided his or her photo identification and thumbprints, and signed the admission ticket. The testing staff collected the print, which was not matched to any other existing prints at the time. There was little opportunity between the check-in process and the beginning of the test administration to sneak in a substitute test taker. Any existing prints were not at the site during the examination.
LSAC’s stated purposes for collecting thumbprints was to assure the authenticity of test scores and to protect the integrity of the testing process. It acknowledged, however, that its primary purpose was one of deterrence – to prevent another individual from taking the test on behalf of the registered test-taker. The company stated that it would use the prints in cases of suspected impersonation. However, LSAC indicated that it did not have the occasion to match thumbprints very often. In fact, it noted there have been no cases in which it was necessary to review test takers’ thumbprints. The company cites this as evidence of the effectiveness of its fingerprint policy as a deterrent to the use of an impersonator as an expert test taker.
The Assistant Commissioner understood that LSAC wanted to ensure the authenticity of the test scores and to protect the integrity of the testing process by deterring impersonation and by providing the means to identify the test taker in cases of suspected fraud. In determining the appropriateness of thumbprinting test candidates, she considered the four-point test:
- Is the measure demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
Based on the results of the investigation, she was of the view that fingerprinting did not effectively meet the stated purpose, nor were the prints ever actually used for its intended purpose. This had the effect of making the loss of privacy greater than the benefit gained. In short, it was clear to her that this purpose could be appropriately met by authenticating candidates when they arrive to take the test. She therefore determined that the collection of fingerprints is beyond that required to fulfil the stated purpose, and is not limited to that which is necessary for this purpose.
The Assistant Commissioner recommended that the company cease collecting fingerprints from students in Canada. The company responded that it would do so; however, it would collect photographic evidence instead. Moreover, it reserved the right to reinstate its fingerprint policy at any time.
Again, the Assistant Commissioner considered the four-point test, this time with respect to photographs. She found that the collection of photographs was substantially less problematic than the collection of thumbprints, and that the organization had not simply substituted one unacceptable collection and retention practice for another.
Nonetheless, she was concerned by the company’s assertion that it could revert to its fingerprint policy at will. As a result, the Assistant Commissioner determined that the complaint was well-founded and stated that the Office would be pursuing the matter in accordance with its authorities under the Act.
In order to comply with the Act, the Assistant Commissioner recommended that the company permanently cease its collection of thumbprints and that it limit the retention of independent photographs to five years, if it continued to collect them.
For further information about related investigations involving college admissions examinations, please see:
- PIPEDA Case summary #2010-007: Test administrator revises measures aimed at preventing exam fraud
- PIPEDA Case summary #2011-012: GMAT Test-taker Objects to Palm-Vein Scanning
- Lessons Learned: Collection of Biometric Information for College Admissions Examinations; An Overview of Three OPC Investigations
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