RSS FeedLSAT Thumbprinting a Privacy Violation
I always felt like I was a criminal when LSAC, the organization that offers the LSAT exam, required mandatory thumbprints on entry.
Weren’t we the ones defending the criminals (or prosecuting them)? Why are we being treated like them?
This commenter says,
When I was a psychology student I used to administer the LSAT. One thing I always found amusing is that you have to leave your thumbprint to take the test. What does that mean? Other professional or graduate tests do not require this.
Then there is the fact that it’s an American company, meaning the American government would have access to my prints if they so chose.
Should Canadian law students be forced to provide prints to a foreign country as a requirement to entry into a Canadian law school?
And I’m not the only one with these concerns.
Canadians Aren’t so Patriotic about the U.S.
In 2006, Daniel Gervais, acting dean of the common-law section at the University of Ottawa expressed to the CBC his apprehension over the U.S. Patriot Act,
The act gives the power to agencies such as the FBI to get access to information that is sent to the U.S.
Michael Geist, also of UofO, elaborates further,
Test takers in B.C. and Alberta have raised objections to the mandatory thumb-printing, expressing concern sensitive personal information could find its way into the hands of U.S. law enforcement. Empowered by provisions in the U.S. Patriot Act, authorities could compel the LSAC to surrender the data.
Patriot Act fears stem from the secretive nature of the law since authorities can compel disclosures with minimal oversight and without opportunity for the affected person to challenge the disclosure.
Critics also point to the statute’s potential misuse. Those fears were exacerbated last week with reports U.S. counter-terrorism databases contain an astonishing 325,000 names.
There has been swift reaction to the thumb-printing story, with the federal, B.C., and Alberta privacy commissioners joining forces in a combined privacy investigation. The Canadian Council of Law Deans, which represents law schools across the country, has expressed concern over the practice, acknowledging that the data could be subject to a Patriot Act request. The Council raised questions about whether the practice might violate federal and provincial privacy statutes.
Phillipa Lawson, Executive Director – Canadian Internet Policy & Public Interest Clinic at UofO added,
In the LSAT case, the stated purpose of collecting thumbprints (to deter fraud) is clearly reasonable. But is the collection of thumbprints necessary to achieve this purpose? Do other, less intrusive but equally effective methods of deterring fraud exist? And is the fraud-deterrent value of thumbprinting proportional to its privacy invasiveness? The privacy commissioners now investigating this matter will have to answer these questions.
And Mark Lewis weighed in, quipped,
Personally, I think it is time for a cage match pitting the Patriot Act vs. PIPEDA.
Recent developments indicate that round 1 may have just begun.
Non-Profit Status of LSUC Will not Provide Immunity
David Canton of eLegal wrote in the London Free Press recently that the Privacy Commissioner of Canada has found the thumbprinting to be a violation of privacy.
The recommendation came following a complaint by University of Victoria philosophy Professor Eike-Henner Kluge.
The Commissioner used a 4-part 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?
Their conclusion is that thumbprinting were never intended for their expressed purpose, let alone meeting their purpose.
Canton said,
LSAC took the position that since it was a Delaware corporation headquartered in the United States, the privacy commissioner had no jurisdiction over its activities.
The privacy commissioner found, however, that there were sufficient Canadian connections to make LSAC subject to the provisions of PIPEDA, at least to the extent it operates in Canada.
The Commissioner also stated,
LSAC’s status as a non-profit, non-stock, membership-based organization is not determinative. The Act applies to organizations, defined in section 2 as including “an association, a partnership, a person and a trade union.” There is no exemption for non-profit or member-oriented organizations. To the contrary, the definition of “commercial activity,” namely, “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists,” makes clear Parliament’s intention that the Act apply to commercial transactions that non-profit, membership-based organizations might engage in.
Ding, Ding, Ding
So it seems law students, who are in training to defend the rights of others, might finally realize these privacy rights that many have been complaining about for years.
Let the fight begin.
Supporting Lawyer Mothers is a Bad Thing?
We’ve all heard it from some of those more sharp-tongued friends of ours - all those single mothers are eroding our economy and stealing our taxes.
The Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type - sole practitioners - and also those in smaller firms.
In a unanimous vote, LSUC will increase it’s fees by a measly $5-15 per lawyer to assist mothers and fathers seeking parental leave by providing grants of $3,000 a month.
But Karen Selick of the National Post slams the program, calling it “creeping socialism” (that’s a bad thing, by the way).
She forgets that Canada is often classified as a socialist democracy, especially the structure of our health care system, which to most Canadians is our proudest symbol of nationalism.
Selick also neglects to mention that the initiative was the result of a province-wide consultation by LSUC’s Working Group on the Retention of Women in Private Practice, which included many different social and ethnic groups and firms of all sizes. LSUC heard from 900 lawyers and students and received over 55 written submissions.
But consulting, of course, is so very undemocratic.
The Working Group states,
Women have been entering the private practice of law in record numbers for over two decades. However, they have also been leaving in great numbers, largely because private practice has not adapted to their realities, such as childbirth and taking on a significant portion of family responsibilities.
Also overlooked is that the move is part of a major plan to address the issue of equity in the workplace. Other recommendations adopted include:
- a think tank to promote retention and advancement of women in law
- direct support for women
- practice locums, for more leave and flex-time
- career development resources
- creating an advisory group
- networking strategies for minority (Francophone, Aboriginal) women
- a review program
But they also clearly express that this initiative begins in the law schools by preparing female law students for the realities of law.
The entire comprehensive 174-page report can be found here.
If valuable legal talent is being lost to inflexible and inadvertently discriminatory work practices, you would think this would be perceived as a progressive move.
Selick says,
What I have never understood is why anyone gives a damn whether women are leaving private practice and clustering in government or corporate jobs, or quitting entirely.
[emphasis added]
Beyond ethical and humanitarian concerns, the legal industry loses millions of dollars a year due to skilled practitioners leaving the law.
Sean Weir of Borden, Ladner, Gervais stated in May 2006 edition of Canadian Lawyer,
We invest a lot in education and programs and do a lot of intensive training from new associates and junior partners.
So when you have a well thought out plan that will save the legal industry mega bucks, and it’s also the right thing to do, why would someone think that it’s a bad thing?
Maybe it’s because they also think that human rights laws are phony too.
h/t Sharon Kour of UWO Law
Updates
Selick justifies her stance using legal economic theory. This type of analysis is frequently used by libertarians and the far right, as they create arbitrary cost-benefit analysis that attempt to prove their position.
More recently, legal economics has become popularized by books such as More Sex is Safer Sex. The author comes to some absurd conclusions, such as it’s better for a sexually inactive person to have a fling with a more promiscuous partner and contract a STD before returning to their inactive lifestyle, because they removed the opportunity of another more active person from getting the disease and passing it on to others.
But they also come up with some quite scary policy stances, such as justifying racial profiling. The problem with legal economics is that their supporters selectively choose the facts and statistics they include in their calculations. In the case of racial profiling, for example, many other studies have demonstrating that it actually increases cost and decreases effectiveness. Legal economists rarely have scientific or statistical backgrounds.
Canada invests hundreds of millions of dollars into our publicly subsidized education system. Despite rising tuition costs, they are still relatively low compared to other nations. But this means that your tax dollars are going into funding the education of women, who are now comprising 50-60% of law school classes. By not creating a more favorable career environment, we lose the incredible investment we put into these individuals. It’s these types of figures that are conveniently overlooked by strictly utilitarian legal economists, who falsely present their arguments as as logical and well-thought out.
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