Analysis A copyright-infringement lawsuit brought against a university staffer by Proctorio – a maker of software that monitors students during online exams – was this week dubbed "meritless" by an EFF analyst.
"Proctorio should cease its efforts to muzzle critics," the foundation's Joe Mullin added.
Last September, Ian Linkletter, a learning technology specialist at the University of British Columbia (UBC) in Vancouver, Canada, was sued by the US software developer for allegedly breaking copyright law.
How exactly? By linking to the corporation's unlisted but publicly accessible YouTube videos in a series of tweets criticizing the surveillance software.
Proctorio also accused Linkletter of circumventing technological measures used to protect its Help Center documentation, and that he encouraged others to share this information. And it claimed in the lawsuit, lodged in Canada, that the staffer violated a confidentiality agreement under the terms that Proctorio's software was licensed to his employer, UBC.
Linkletter denied any wrongdoing in an affidavit [Google Drive] filed in his defense in October. He also said he's concerned about the ethical and privacy implications of Proctorio's invigilation software, which watches students via their webcams as they take tests online to spot what may be signs of cheating – such as looking off to the side where notes might be. The biz describes its technology as a "learning integrity platform."
I am concerned that misuse or misunderstanding of this technology could lead to academic discipline for honest students, and unnecessary stress for everyone
"Proctorio uses an opaque proprietary system to measure 'behavior', calculate 'abnormalities', and then assign a 'suspicion level' to each student," Linkletter stated in his court filing. "I am concerned that misuse or misunderstanding of this technology could lead to academic discipline for honest students, and unnecessary stress for everyone."
He further argued the software provokes anxiety among students, presents barriers to the disabled, and incorporates racist and sexist biases.
As for what Linkletter tweeted last year, here's an example: "This video from Proctorio’s YouTube channel shows how the Abnormal Eye Movement function works. This is the one that will show you, beyond a doubt, the emotional harm you are doing to students by using this technology."
After the videos he highlighted were removed by the software developer from YouTube, he tweeted: "Proctorio is afraid. They are afraid of students. They are afraid of the truth. They are afraid of what they have made."
Such sentiment appears to be widespread. At California State University Fullerton, University of Colorado Boulder, Miami University, and University of Tennessee Chattanooga, in America, students have petitioned against the use of proctoring software, which has seen growing interest from academic institutions as remote learning has been normalized in the coronavirus pandemic. So too have students at City University of New York. UC Berkeley last year decided against [PDF] using remote proctoring products.
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Linkletter has managed to raise over $50,000 to fund his legal defense against Proctorio through a GoFundMe campaign.
Among donors, there's a sense of indignation over Proctorio's legal tactics. "It is unacceptable for the law to be used in this way to suppress criticism of a product that students are being forced to load on their private computing technology," wrote an individual identified as Mark Lawes. "This must be challenged."
The EFF's policy analyst Joe Mullin labeled the lawsuit a SLAPP, a term for legal challenges engineered primarily to silence someone. "Proctorio’s legal attack on Ian Linkletter is meritless," Mullin wrote on Tuesday in a blog post. "It’s a classic SLAPP, an acronym that stands for Strategic Lawsuit Against Public Participation."
The software company has also used the Digital Millennium Copyright Act (DMCA) in the US to try to remove critical tweets from a student at Miami University. Twitter eventually restored the student's posts.
The Register asked Proctorio to comment, and a spokesperson told us the biz is "pursuing an injunction to protect our intellectual property and prevent unauthorized use of confidential information.”
Many countries including America and Canada have anti-SLAPP statutes that aim to deter litigation that relies on dubious legal claims to stifle criticism. The province of British Columbia has the 2019 Protection of Public Participation Act (PPPA), under which Linkletter hopes to have Proctorio's claim dismissed.
Mullin said Linkletter's case will be a test of whether the PPPA is effective in defending against SLAPPs. ®