Schools can fingerprint children without parental consent
DfES qualifies its stance
Parents cannot prevent schools from taking their children's fingerprints, according to the Department for Education and Skills and the Information Commissioner.
But parents who have campaigned against school fingerprinting might still be able to bring individual complaints against schools under the Data Protection Act (DPA).
DfES admitted to The Register that schools can fingerprint children without parents' permission.
This position has also been taken by the Information Commissioner, who interprets and enforces the Data Protection Act - the law privacy campaigners hope might be used to stop schools fingerprinting their children.
The Information Commissioner's Office (ICO) is drawing up guidance on the use of fingerprints for purposes other than law-enforcement. The guidance will say once and for all whether parents can prevent their children's fingerprints being taken.
David Smith, deputy Information Commissioner, said it was a complex issue that was still being worked out, but it was likely that parents did not have an automatic right to decide whether their children's biometrics could be taken by a school.
"The Data Protection Act talks of consent of the individual - essentially that's consent of the child," he said.
"Now there's a requirement that consent is informed and freely given. That will depend on the age of the child," he said.
The idea is that as long as children can understand the implications of what they are being asked to do, they can give consent without deferring to their parents.
"The Data Protection Act is about the pupil's rights, not the parents' rights over the children's information," said Smith.
The ICO set a precedent of sorts over the consent of children with regard to direct marketing. It decided that kids could sign up to get free gumpf through the post without parental consent unless they were required to hand over detailed personal information.
You might think that a child's fingerprint is one of the most personal pieces of information that can be stored in a database. But the type of information is irrelevant to the Act. Even a child's age is of little importance to the DPA, said Smith.
More important than consent even, the guidance will consider how a fingerprinting system has been applied: whether it is reasonable and proportionate. If a school wants to use children's fingerprints to control their use of its library books, anti-biometric parents might not have much room for protest within the law.
Even where the act does consider consent of the child, it cannot rule in a blanket fashion so as to, say, proclaim that schools should seek parental consent before fingerprinting children below a certain age.
"The capacity of a child to make a decision varies from child to child, while some decisions are more involved than others," said Smith.
What do you do, Smith asks, if a child refuses to have its fingerprint taken but a parent insists that it should?
The DPA is clear on this. The parent only has limited opportunity to control the consent of their child.
"Where the child isn't capable of giving consent then under the data protection act it should go to the parents," said Smith.
Schools might not even have to inform parents as long as the fingerprinting system doesn't offend the DPA and children have the capacity to decide for themselves, he said.
But who gets to say whether a particular child is capable of consenting to their biometrics being taken - whether a child understands the implications of what they are being asked to do, or whether the decision should be deferred to the parent?
"That's for the school to decide," said Smith.
But campaigners against fingerprinting, such as www.leavethemkidsalone.com, don't trust schools to make that decision.
"There will always be a question in a school environment about whether consent is given," agreed Smith. "The teacher/pupil relationship makes it difficult to obtain freely given consent".
Moreover, in practice the decision is not likely to be given to individual children but presented to the class as a whole. A judgement, Smith conceded, was likely be made about the ability of a class as a whole to make a judgement.
So there might be room for concerned parents to manoeuvre: they might show that consent was not fairly sought or given, with children being given unbiased information to aid their decision. More broadly, they might argue that the decision about whether to hand over fingerprints and other biometrics goes beyond their ability to comprehend.
"[The guidance] will address consent, but it will make clear that what is essential is, [if] what's done is reasonable and proportionate, then consent wouldn't be required," said Smith.
The DPA has scope only to see that fingerprinting is done for a specific purpose, that only necessary data is collected, kept for the necessary time, and used for the allotted purpose by only the allotted people, as long as it is stored securely and not shared willy nilly.
Asked to clarify the legal basis on which its claim was made, the DfES conceded that schools had to ensure their fingerprinting schemes were compliant with the Data Protection Act and the Human Rights Act.
DoES said: "[Schools] should also inform parents and get consent unless the child is of 'sufficient maturity that s/he can give consent her/himself'."
According to Anne Marie Hutchinson OBE, head of the Children Department at Dawson Cornwell law firm, the applicable areas of the Human Rights Act (and Children's Act) legislation concur with the ICO's interpretation of the Data Protection Act: children below the age of 16 can consent if they can demonstrate they have the legal capacity - the nous - to do so; otherwise, parents decide. That will vary child by child and according to decision they are being asked to make.
Unless they can find a way of bringing a case on broad principles, parents who dislike a school fingerprinting their kids without parental consent will have to fight on a case by case basis, based on the legal capacity of their child or the approach of the school.
Yet, as biometrics have already made such rapid encroachments into Britain's schools, it is likely that by the time any such cases get heard, fingerprinting will already be a daily routine for many British children. ®