by Emma Norton, Guardian.co.uk, friday 16th July 2010
The government does not keep a record of the number of schools using biometric technology such as fingerprinting. Photograph: Peter Macdiarmid/Getty Images
Thinking Crumpet writes:
My child will be starting a school in September where the preferred registration method is fingerprint recognition. Is it lawfully possible to refuse to comply and keep his place at the school?
More and more parents are asking us for advice about this issue. No one knows how many schools are now using biometric technology like this because it seems that the government is not keeping a record. Some estimates suggest that as many as 30% of all schools in the UK have fingerprinting technology. This means that millions of children are having their fingerprints taken and retained. This massive expansion of the collection of highly personal data has been allowed to take place without parliamentary scrutiny or public debate.
The short answer to thinkingcrumpet's question is: we cannot see how it would be fair or lawful for a school to use a parent's refusal to consent to fingerprinting her child as a reason for rescinding an offer of a place at a school. The reaction would be wholly disproportionate (engaging the child's right to privacy and education).
The new coalition government has already stated that it intends to ban the taking of prints from children without parental consent so it would be very poor practice if schools did not take this proposed legislation into account (although they are, of course, not legally bound by it). Furthermore, the Information Commissioner's Office (the office that oversees compliance with the Data Protection Act 1998 (DPA), has published guidance on this issue and advises that even though there is no lawful requirement on a school to obtain parental consent for fingerprinting children, the school "must" involve the parents to ensure that information is obtained fairly, unless the school can be certain that the child understands the implications of giving up his/her prints.
The ICO states that "it would be a heavy-handed approach for schools not to respect the wishes of those pupils and parents who object". It specifically states that other systems can work just as well and that those who wish to opt out should be offered another means of accessing the same services.
The main reasons given by schools for introducing biometric technologies are to assist in registration, library and canteen systems. Upon entry, the pupil is required to place his or her finger on a scanner whereupon the software will identify them as someone entitled to access the service. It is argued that access to the service is made faster and more efficient, but also that the system can keep tabs on the pupil (so that it is easier, for example, to spot if a student is skipping school). Using a cashless system like this is also credited with reducing bullying and stigmatisation, especially for those on free school meals. It has been suggested that parents can keep better track of what their kids are eating, with some sort of block being put on the canteen system if the child tries to buy unsuitable food.
Although fingerprinting technology is still the main biometric systems employed by schools, other trials to date have included retinal scanning and palm-vein scanning.
So what is wrong with this? Certainly when I asked my 14-year-old and some of his friends about it, they didn't immediately see anything wrong with fingerprints and scanners in schools – in fact, they quite liked the futuristic style of the technology as opposed to their battered old library cards, or boring registration procedures. Liberty does not share their enthusiasm. Indeed one of our principal concerns is that it plays on these ideas and gets children accustomed to giving up their highly personal biometric data as a matter of routine.
If children at primary school age are taught that it is normal to hand fingerprints or other personal data to their school or local authority, how alarmed are they going to be if and when, as adults, a future government tries to reintroduce the idea of ID cards, for example, or to argue that there should be universal DNA retention?
It also touches on the important issue of consent. The law (see below) requires that the person must give their consent to the fingerprints being taken. How schools are ensuring that children are giving informed consent is very hard to determine and practice seems to vary widely. The ability of a seven-year-old to give consent is going to be very different from that of a 17-year-old. Surprisingly, the law does not require that consent be obtained from the parents of a child, although good practice and guidance has recommended that it be obtained in advance. We are aware of many cases where this has not happened, though, and parents are only informed after the event.
The massive expansion in the use of this technology has been pushed almost entirely by the private sector companies that make a lot of money out of it. Some have made claims about the benefits of the technology that are entirely untested. We have heard about one school that spent thousands of pounds installing retinal scanning software, only to have to remove it because the process of scanning each pupil took far longer than expected and all the pupils could not be fed inside the lunch hour. Concerns about preventing bullying and stigmatisation could also be met through the wider introduction of swipe cards and PIN numbers.
The law
The Data Protection Act 1998 contains a number of principles governing what a "data controller" (in this case, a school) can do with the personal information it holds. A detailed discussion of the data-protection principles is beyond the scope of this article, but in summary: the information must be processed fairly and lawfully; can only be taken for a lawful purpose; must be adequate and not excessive in relation to the purpose for which it was taken; must be kept for no longer than is necessary; and must be safely and securely maintained.
Liberty believes the problems touched on above with regards to consent raises immediate questions about whether information taken in such circumstances can be said to have been processed "fairly and lawfully". We are also very concerned about the possibility of other agencies outside the school being able to access the information. The ICO has confirmed, for example, that the police could ask the school to hand over biometric information about children. It has stated that biometric data should be destroyed once a pupil leaves the school but there is no system for checking and ensuring this is done. Compliance with the DPA is likely to be poor because it is effectively unchecked.
Article 8 of the Human Rights Act protects the right to respect for a person's privacy. The taking of DNA and fingerprints has already been held by the court of human rights to engage this right. The need for protection is even higher for children.
The right to privacy is not an absolute right and under the second part of the article the state may justify an interference with the right that is "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
You can see the sort of arguments that would be raised to try to show that the interference was justified. Assuming the DPA had been complied with, the school could argue that retention was necessary in a democratic society to ensure attendance of pupils at school or prevent bullying and stigmatisation (protection of the rights and freedoms of others). We think this is questionable. It is hard to see how installing a new system for taking books out of a library justifies the interference with privacy involved. And there are less invasive alternatives available to deal with concerns about attendance and bullying, which do not have such implications for personal privacy.
The expansion of biometric systems like this have been allowed without a proper public debate. If we get too hung up on issues about efficiency and modernisation, we will overlook these vital questions. This highly personal information belongs to the individual and it should not be for him or her to tell the state why they should not have it – it is for the state to justify why it should. So far, it has failed to do so.
More and more parents are asking us for advice about this issue. No one knows how many schools are now using biometric technology like this because it seems that the government is not keeping a record. Some estimates suggest that as many as 30% of all schools in the UK have fingerprinting technology. This means that millions of children are having their fingerprints taken and retained. This massive expansion of the collection of highly personal data has been allowed to take place without parliamentary scrutiny or public debate.
The short answer to thinkingcrumpet's question is: we cannot see how it would be fair or lawful for a school to use a parent's refusal to consent to fingerprinting her child as a reason for rescinding an offer of a place at a school. The reaction would be wholly disproportionate (engaging the child's right to privacy and education).
The new coalition government has already stated that it intends to ban the taking of prints from children without parental consent so it would be very poor practice if schools did not take this proposed legislation into account (although they are, of course, not legally bound by it). Furthermore, the Information Commissioner's Office (the office that oversees compliance with the Data Protection Act 1998 (DPA), has published guidance on this issue and advises that even though there is no lawful requirement on a school to obtain parental consent for fingerprinting children, the school "must" involve the parents to ensure that information is obtained fairly, unless the school can be certain that the child understands the implications of giving up his/her prints.
The ICO states that "it would be a heavy-handed approach for schools not to respect the wishes of those pupils and parents who object". It specifically states that other systems can work just as well and that those who wish to opt out should be offered another means of accessing the same services.
The main reasons given by schools for introducing biometric technologies are to assist in registration, library and canteen systems. Upon entry, the pupil is required to place his or her finger on a scanner whereupon the software will identify them as someone entitled to access the service. It is argued that access to the service is made faster and more efficient, but also that the system can keep tabs on the pupil (so that it is easier, for example, to spot if a student is skipping school). Using a cashless system like this is also credited with reducing bullying and stigmatisation, especially for those on free school meals. It has been suggested that parents can keep better track of what their kids are eating, with some sort of block being put on the canteen system if the child tries to buy unsuitable food.
Although fingerprinting technology is still the main biometric systems employed by schools, other trials to date have included retinal scanning and palm-vein scanning.
So what is wrong with this? Certainly when I asked my 14-year-old and some of his friends about it, they didn't immediately see anything wrong with fingerprints and scanners in schools – in fact, they quite liked the futuristic style of the technology as opposed to their battered old library cards, or boring registration procedures. Liberty does not share their enthusiasm. Indeed one of our principal concerns is that it plays on these ideas and gets children accustomed to giving up their highly personal biometric data as a matter of routine.
If children at primary school age are taught that it is normal to hand fingerprints or other personal data to their school or local authority, how alarmed are they going to be if and when, as adults, a future government tries to reintroduce the idea of ID cards, for example, or to argue that there should be universal DNA retention?
It also touches on the important issue of consent. The law (see below) requires that the person must give their consent to the fingerprints being taken. How schools are ensuring that children are giving informed consent is very hard to determine and practice seems to vary widely. The ability of a seven-year-old to give consent is going to be very different from that of a 17-year-old. Surprisingly, the law does not require that consent be obtained from the parents of a child, although good practice and guidance has recommended that it be obtained in advance. We are aware of many cases where this has not happened, though, and parents are only informed after the event.
The massive expansion in the use of this technology has been pushed almost entirely by the private sector companies that make a lot of money out of it. Some have made claims about the benefits of the technology that are entirely untested. We have heard about one school that spent thousands of pounds installing retinal scanning software, only to have to remove it because the process of scanning each pupil took far longer than expected and all the pupils could not be fed inside the lunch hour. Concerns about preventing bullying and stigmatisation could also be met through the wider introduction of swipe cards and PIN numbers.
The law
The Data Protection Act 1998 contains a number of principles governing what a "data controller" (in this case, a school) can do with the personal information it holds. A detailed discussion of the data-protection principles is beyond the scope of this article, but in summary: the information must be processed fairly and lawfully; can only be taken for a lawful purpose; must be adequate and not excessive in relation to the purpose for which it was taken; must be kept for no longer than is necessary; and must be safely and securely maintained.
Liberty believes the problems touched on above with regards to consent raises immediate questions about whether information taken in such circumstances can be said to have been processed "fairly and lawfully". We are also very concerned about the possibility of other agencies outside the school being able to access the information. The ICO has confirmed, for example, that the police could ask the school to hand over biometric information about children. It has stated that biometric data should be destroyed once a pupil leaves the school but there is no system for checking and ensuring this is done. Compliance with the DPA is likely to be poor because it is effectively unchecked.
Article 8 of the Human Rights Act protects the right to respect for a person's privacy. The taking of DNA and fingerprints has already been held by the court of human rights to engage this right. The need for protection is even higher for children.
The right to privacy is not an absolute right and under the second part of the article the state may justify an interference with the right that is "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
You can see the sort of arguments that would be raised to try to show that the interference was justified. Assuming the DPA had been complied with, the school could argue that retention was necessary in a democratic society to ensure attendance of pupils at school or prevent bullying and stigmatisation (protection of the rights and freedoms of others). We think this is questionable. It is hard to see how installing a new system for taking books out of a library justifies the interference with privacy involved. And there are less invasive alternatives available to deal with concerns about attendance and bullying, which do not have such implications for personal privacy.
The expansion of biometric systems like this have been allowed without a proper public debate. If we get too hung up on issues about efficiency and modernisation, we will overlook these vital questions. This highly personal information belongs to the individual and it should not be for him or her to tell the state why they should not have it – it is for the state to justify why it should. So far, it has failed to do so.
