Recently, some confusion has been generated in the marketplace regarding a change by the FBI pertaining to the repurposing of fingerprints for any lawful use. In this context, "repurposing" references instances in which an applicant has fingerprints collected for one purpose ( i.e., FBI checks) and that same collection is used for additional purposes (i.e., Nationwide Multistate Licensing System ("NMLS") or Financial Industry Regulatory Authority "FINRA"). In the FBI's new channeling contract, the "repurposing" of fingerprints is not expressly prohibited; however, the FBI does stipulate that, "the contractor shall not retain fingerprint cards and images longer than 30 calendar days from receipt or upon successful completion of the transaction, whichever is shorter." By all intent and purposes, the 30-day or sooner purge terms would severely restrict fingerprint repurposing beyond the 30-day mark.

Based on our interpretation of the stipulation and conversations with the FBI (which are currently unaccompanied by written authority), fingerprints may only be reused for the same purpose as was the basis of the original collection. Likewise, this basis must be specifically "known at the time of the collection" per the FBI. The original basis for the collection can represent a myriad of purposes (i.e., NMLS, FINRA, FBI, etc.). The collected fingerprints can be disseminated to these different sources only if the applicant consents to dissemination per the stated purposes and the specific sources are known by the Authorized Recipient at the time of the collection. The limitation on repurposing appears to be that Authorized Recipients cannot use an original fingerprint collection for a permissible purpose (as specifically consented to by the applicant) and then subsequently re-use this collection in the future for a different purpose for which the applicant did not specifically grant consent at the time of the original collection.

Authorized Recipients cannot provide a consent that authorizes collecting and submitting fingerprints for multiple purposes (i.e., FBI/Banking, NMLS, FINRA, etc.) based on the notion that these purposes "may" be necessary at some future point. The purpose of the applicant's fingerprint collection must be known at the time of consent, thereby eliminating "global consent." What appears to be permissible is the concept that multiple sets of fingerprints (each accompanied by the applicable consent) may be secured during one collection session and utilized for the permissible purpose identified (i.e. FBI, NMLS, FINRA). Engaging this concept may mitigate the impact the FBI's new channeling contract language change will have on the industry.

During a Channeler Symposium held in April, 2021, the FBI noted that fingerprints collected by a channeler for FBI submission cannot be submitted to the FBI more than once; however, nothing in writing as issued by the FBI exists at this point pertaining to repurposing limitations. The FBI has indicated on several occasions that it will "soon" provide eagerly awaited clarity and implementation rules, including details regarding the repurposing issue.

The language in the new channeling contract took effect in early May. This occurred without a clear written directive from the FBI related to the repurposing issue, which the FBI has since indicated is forthcoming. As such, the only change to our process will be to comply with the requirement to purge fingerprints on a timely basis, by June 8, 2021, which will likely impact repurposing. This will be the course of action taken until or unless our understanding is modified by future information disseminated by the FBI.

As we receive more information regarding the new repurposing rules, we will inform our clients accordingly.

Posted: May 19, 2021