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By Pascale Gelly and Jean-David Behlow

The French Data Protection Authority (CNIL) has granted approval for the testing company GMAC (Graduate Management Admission Council) to use biometric technology in France to control access to examination centers for the GMAT test used for student selection by business schools around the world.

What makes this decision special is that the CNIL has agreed to allow for the storage of students’ biometrics in a central database for five years. Until now, the CNIL has been reluctant to do so, except in very special circumstances where high security measures were justified by a superior interest (e.g. control of access to toxic materials or to information protected by defense secrecy). In this case, the authority determined that the system was proportionate to the purpose—fighting fraud—insofar as the technology used represented fewer risks to privacy than the more commonly used fingerprint recognition technology. The PalmSecure palm vein identification technology that GMAC will use captures a palm vein pattern and generates a unique, encrypted biometric template that is matched against the pre-recorded candidate’s palm vein pattern.

In its authorization decision, the CNIL explained that with this “no trace” technology, it would be more difficult to steal the identity of a candidate. The authority insisted on the specificity of the GMAT which, due to its international scope must be taken in the same conditions by all candidates around the world in order to prevent fraud. The CNIL also took into consideration the fact that GMAC and its processor, Pearson, had put in place a process to address situations where a candidate would not be recognized by the system. The candidate will be given the chance to defend him/herself and, in case of an argument, videos taken during the test could be used to verify whether fraud had been committed.
On the security standpoint, the CNIL noted that the biometrics templates are encrypted and kept in a database separate from the database where the candidates’ other personal data is stored.

IT administrators cannot access employee e-mails

The French Supreme Court ruled recently that an employer may have access to employees’ private e-mails, but only in the event of a specific risk or event. The case involved managers of a chemical company asking the IT administrator to seek, among 17 employees, the author of anonymous e-mails showing that he/she had access to highly sensitive information entitled “security/safety,” including health data.
Employee representatives requested an investigation. The court ruled that, in this case, a “security incident” was not sufficient in justifying that the investigation requested by the employer encompass both professional and personal e-mails

Whistleblowing: the never-ending story

The CNIL has granted a series of authorizations for the implementation of professional alert systems within groups of companies, despite that they could not claim being subject to SOX or banking regulation.
These systems were found in the legitimate interest of the data controllers, as they were either required by the so-called “Japanese SOX “ or justified by strong control requirements applying to listed companies outside of France.
Is this the beginning of an opening to a less stringent approach towards ethics lines? More decisions are expected before the end of the year.

Pascale Gelly and Jean-David Behlow of the French law firm Cabinet Gelly can be reached at pg@pascalegelly.com.

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