A recent federal court ruling against virtual proctoring room scans may affect future right to privacy laws across the country. During the pandemic, many schools and universities turned to virtual proctoring systems while administering tests and exams. Some of these systems required students to provide a video scan of their rooms in order to look for prohibited study aids. As pandemic restrictions ease up, some schools continue offering remote learning for those students who need it.
What is online or virtual proctoring?
Virtual proctoring is the use of software to monitor students during remote tests and exams. Many of these tools, involve live proctoring, which means interacting with a proctor in real time with a video/audio connection. Typically, proctors ask students to identify themselves and do a visual scan of their environment to check for unauthorized study aids or other objects. Proctors can also continue to monitor students during the testing period.
Other proctoring software tools are automated, meaning they use AI to flag any suspicious behavior or unauthorized computer use (like barring the use of opening browser windows or disabling the copy-paste function). The software can also be programmed to look for actions like the student looking away from their computer for long periods of time or reaching for objects out of frame.
Remote scanning ruled a violation of privacy
A Cleveland State University student claimed the proctoring room scan was a violation of his Fourth Amendment right to be free of unreasonable search and seizure. On August 25, a United District Court agreed. The New York Times notes in an article about the ruling:
The use of virtual software to remotely monitor test takers exploded during the first years of the coronavirus pandemic, when millions of students were suddenly required to take classes online to minimize the spread of the disease. Students and privacy experts have raised concerns about these programs, which can detect keystrokes and collect feeds from a computer’s camera and microphone.
In some cases, other students are even able to see these video and visual room checks.
The plaintiff in the case, Aaron Ogletree, stated in court documents that he was unable to take his tests in person at Cleveland State due to a compromised immune system and other health issues that would put him at risk for COVID-19. In early 2021, he disputed a policy requiring room scans during his General Chemistry II class that stated, “The proctors and I reserve the right to ask any student, before, during, or after an exam to show their surroundings, screen, and/or work area. We will send you a private chat to ask you to do this.”
After disputing this policy, Ogletree noted it was removed from the syllabus. Shortly before an exam in February, however, he received an email from the proctoring service informing him it would be performing a scan of his room. According to court documents, Ogletree explained that he “currently [had] confidential settlement documents in the form of late arriving 1099s scattered about [his] work area and there is not enough time to secure them.”
However, the proctor performed the room scan anyway and Ogletree filed a lawsuit alleging the University violated his right to privacy. Federal judge Philip Calabrese wrote in his judgement in favor of Ogletree, “The Court concludes that Mr. Ogletree’s privacy interest in his home outweighs Cleveland State’s interests in scanning his room. Accordingly, the Court determines that Cleveland State’s practice of conducting room scans is unreasonable under the Fourth Amendment.” [emphasis ours]
Judge Calabrese has ordered the attorneys involved to meet on the next steps regarding the case and submit a report by September 12.
The New York Times notes that this decision can help protect student privacy going forward in a variety of ways. Bill Fitzgerald, a privacy researcher, explains, “These systems have a spotty track record when it comes to security. But even if they had a phenomenal track record when it comes to security, they’re intrusive and they’re reflective of a power imbalance and a mistrust of students.”
Are virtual proctoring services worth the privacy risk?
Last December, the Electronic Privacy Information Center filed complaints against five online proctoring services – Respondus, ProctorU, Proctorio, Examity, and Honorlock. Among their accusations is that the companies were:
- Collecting personal data from students
- Utilizing unreliable AI tools for signs of cheating
- Making deceptive statements about their products
In their complaint to the D.C. Attorney General’s Office, EPIC stated:
The rapid growth of online test proctoring has all but forced many students to trade away their privacy rights in order to meet their academic obligations. These systems routinely collect sensitive data from students that is not necessary to administer an exam and subject test-takers to secret, unproven algorithms that can effectively accuse them of cheating with no legitimate basis.
At The Law Office of Perry A. Craft, PLLC, our Nashville education law attorneys can help if your student rights have been violated. We understand the protections the Constitution and federal law allow, and will do everything we can to ensure you get the education to which you are entitled. To find out how we can help you with your case, call 615-953-3808 or fill out our contact form to get started.
Perry A. Craft has dedicated his life to helping people in need. He has tried, settled, or resolved numerous civil and criminal cases in State and Federal courts, and has represented teachers and administrators before school boards, administrative judges, and the state Board of Education. Learn more about Attorney Craft.