Former EFF legal intern Holden Benon co-wrote this blog post.

Jennifer Parrish, a child care provider in Minnesota who runs a day care out of her home, finds herself at a crossroads due to a recently passed Minnesota law. The law imposes new background check requirements on child care providers, including that they provide biometric information. But the law doesn’t apply just to the providers themselves; it also requires anyone age 13 and up who lives with a family day care provider to submit to the same background check, whether or not they have committed any crime. This means Jennifer’s 14-year-old son, along with about 12,000 other kids in Minnesota, must provide his fingerprints and a face recognition photograph to the state, which will send them to the FBI to be stored for his lifetime in the FBI’s vast biometrics database.

New Federal Funding for Child Care Requires a Biometric Background Check

In 2014, President Obama signed into law the federal Child Care and Development Block Grant, which provides states with additional child care funding if they enact new policies and procedures designed to improve the quality of early care, education, and afterschool programs for kids.  Among the new Block Grant requirements, states must now conduct criminal background checks for anyone 18 and over who lives in a “family child care home” (a home where the child care provider lives and also takes care of other peoples’ kids), whether or not they have any actual interaction with children. The law states that background checks are to be conducted through the FBI’s Next Generation Identification repository (NGI). 

States Can Enact Stricter Laws

To receive these additional funds, states have to adopt and comply with the provisions set forth in the Block Grant. Minnesota has done so, but is also taking the background check requirements a step further.

Minnesota passed a law expanding the Federal law, in part, by defining “child care staff persons” as anyone who is 13 years old and over and lives in the home. The law further states that these teenage children must submit photographs and fingerprints, which will be retained by the FBI in NGI.

Texas passed a similar law requiring each child 14 years of age or older staying at a family home to submit a complete set of fingerprints to the FBI’s NGI database. But other states, such as California and Vermont, passed laws that are closer to the Federal standard. 

Minnesota’s Background Check Requirement Violates Privacy Rights

The FBI’s NGI database stores civil and criminal fingerprints together.  This means that any fingerprints submitted for licensing or for a background check will most likely end up living indefinitely in NGI—to be searched thousands of times a day for any crime, no matter how minor, by over 20,000 law enforcement agencies across the country and around the world.

Photographs are stored in the face recognition component of NGI. While the FBI says this part of the database currently separates photos taken for a non-criminal purpose from criminal mugshots, if a person is ever arrested for any crime—even for shoplifting at a grocery store—their non-criminal photographs will be combined with their criminal record and will become fair game for the same criminal database searches as any mugshot photo. 

Parents should not have to worry that their children’s biometrics will be collected and stored in NGI, but that’s exactly what will happen under Minnesota’s new law. This creates a very real possibility that kids will be implicated for crimes they didn’t commit. Consider, hypothetically, that a 13-year-old submits fingerprints and photograph to NGI so that their parents’ daycare complies with state licensing requirements.  Later, the kid is arrested for stealing candy from a drug store.  Any law enforcement agency in the country with access to NGI could then find the kid’s original licensing photograph through a search of NGI’s criminal face recognition database. If they happen to look similar to someone recorded in a grainy security camera video committing another crime, they could become a suspect for this crime solely because the face recognition system flagged them as a match.

Face recognition is notoriously inaccurate, especially for young people, people of color, and women. The FBI has admitted its system will only make a correct match—assuming the suspect is already in the database—about 85% of the time. Teenage children should not bear the risk of being later implicated in serious crimes—and their parents shouldn’t have to worry this will happen—simply because their family home also functions as a legal daycare.

Government Transparency

Unsurprisingly, the Minnesota state government has not been transparent with family day care providers about how this provision will impact their children’s privacy rights. 

For one, the specific provision that invades these rights was tucked into the end of a 672-page document, making it difficult for child care providers to understand and comply with the law. Also, according to Parrish and another family daycare provider, Jennifer Seydel, the Minnesota legislature did not afford interested individuals the opportunity to submit public comments criticizing or explaining the negative consequences of the law. 

It is also troubling that despite the explicit text of the Minnesota law, the Minnesota Department of Human Services has signaled at various times that it will not subject minors to the stated fingerprinting and photograph requirements.  In fact, the Department has stated that fingerprints or photos of minors will not be collected unless the individual has a Minnesota criminal record and an “offender status.”  Minnesota child care authorities also state on their Frequently Asked Questions page that the statute only affects individuals over the age of 18, despite the clear language set forth in the statute. The plain language of the Minnesota statute directly contradicts these representations. 

Further, the Department has stated that this is a measure for “providers who want to make sure that the person they’ve hired is the person who has the background study.” But the requirement that children living with their parents submit their photographs and fingerprints to the FBI repository does nothing to ensure that the person a provider has hired “is the person who has the background study.”

The vast majority of child care laws are likely well-intentioned.  But lawmakers should be cautious not to negatively impact children on the other side of the equation.  When drafting new laws, lawmakers should take into account the potential impact on individuals’ privacy rights. As Parrish has told us, Minnesota’s law makes her son very uncomfortable because it means he has to have his fingerprints and photographs taken and submitted to the FBI. Parrish says he’s never broken a law and is a good kid. He feels like he’s being treated as though he’s done something wrong. In Parrish’s situation, protecting the children at her family child care facility should not come at the expense of invading the privacy of her own fourteen-year-old child.