Critics of Anti-Cheating Technology Being Silenced by Lawsuits

 n 2020, a Canadian university employee named Ian Linkletter became increasingly alarmed by a new kind of technology that was exploding in use with the pandemic. It was meant to detect cheating by college and high-school students taking tests at home, and claimed to work by watching students’ movements and analyzing sounds around them through their webcams and microphones to automatically flag suspicious behavior.

So Linkletter accessed a section of the website of one of the anti-cheating companies, named Proctorio, intended only for instructors and administrators. He shared what he found on social media.  Now Linkletter, who became a prominent critic of the technology, has been sued by the company. But he is not the only one.  Linkletter’s continuing case illustrates how vicious the fight over so called e-proctoring has become. At the height of the pandemic, it was estimated to be in use in nearly 63% of US and Canadian colleges and universities, and is thought still to be available in many of those, despite students’ return to classrooms.

And while there are a number of companies which offer versions of the contentious software, Arizona-based Proctorio, which has a partnership with education giant McGraw Hill, is among the largest providers. It has been carving a name for itself by taking on its critics both in and out of court.  The company, founded in 2013 by its current CEO, Mike Olsen, uses face and gaze detection among other tools to surveil test takers and ensure they are consistently interacting with an exam. Algorithms based on artificial intelligence flag abnormal behavior to university administrators for review.  However, how effective e-proctoring technology is at detecting cheating, or even deterring it, is the subject of debate. And a notable instance when the software was unable to recognize a Black student’s face has brought unflattering attention.

Student concerns over Proctorio led Linkletter, a learning technology specialist in UBC’s faculty of education, to investigate the technology. They argued that it could invade privacy, increase anxiety and make students feel under suspicion, and also that it could be discriminatory for students of color, neurodiverse students or those with idiosyncratic behaviors.  One of Linkletter’s particular worries was the lack of transparency around how Proctorio’s algorithms worked. He wanted to find out more.  In August 2020, he accessed materials in Proctorio’s instructor help center.  He tweeted out links to seven unlisted YouTube videos he found there about how the technology worked – such as, for example, about how it detected abnormal eye and head movement and how it did a room scan.

The next month the company sued Linkletter, claiming breach of copyright among other infringements. It argued that because of his actions, students would be able to modify their behavior and competitors could adopt similar technologies, which could harm Proctorio’s business.

Also in late 2020, Erik Johnson, a computer engineering student at another college that used Proctorio, also became concerned about the technology. Johnson, at Miami University in Ohio, examined the files that were saved to his computer when he installed the software, and uploaded excerpts of the code for the public to see. Johnson believed it supported his criticisms that the software was invasive, inequitable and overly controlling of a test taker’s computer.  Proctorio got the material removed. Johnson sued it, claiming the company was abusing copyright law to interfere with his free speech. Proctorio sued him back, arguing copyright infringement and that Johnson had defamed the company and damaged its business relationships with universities.

Students continue to share negative experiences with e-proctoring online – where they are amplified by anonymous Twitter feeds like Procteario and ProcterrorU But Proctorio’s abuse of the legal system has negatively impacted public discussion of the issue.  Multiple critics of the technology declined to speak to the Guardian citing an aura of litigiousness. There is “censorship through the fear of a lawsuit”, says Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project, another advocacy group which has been critical of e-proctoring. “I have heard from dozens of individuals who want to speak out about this technology but fear the repercussions.”

While there are many charges against e-proctoring technology, perhaps most egregious is the potential of the software to discriminate on the basis of a user’s skin color. In one instance, Proctorio was unable to see a Black student’s face.  In early 2021, Amaya Ross, an African American psychology student who recently completed her third year at Ohio State University, was gearing up in her dorm room to use Proctorio for the first time to take a practice biology quiz. She knew she needed good lighting, and made sure it was the middle of the day. But despite her best efforts, she couldn’t get the software to detect her face.

Eventually she found that Proctorio worked if she stood directly under the overhead light – though it was hardly an ideal way to take an online test. So she mounted a powerful flashlight on the shelf above her computer and shone it directly at her face. Only then, over 45 minutes later, was she able to take the 30-minute quiz without issue. “My white friends didn’t have any problems,” she notes. (The Mozilla Foundation released an animated video of Amaya’s story.)

A broader issue is, of course, whether the software achieves its overall goals of thwarting cheaters.  In one experiment, published in 2021, six of 30 computer science students were asked to cheat. Proctorio failed to flag any of the cheating students while human reviewers detected one (out of six).

Linkletter and Johnson’s cases have gone different ways-- but in another court case brought by a student against Cleveland State University, an Ohio judge has just ruled that scanning rooms via e-proctoring software before students take exams is unconstitutional.

For Linkletter it is all a start to holding the companies accountable. AI surveillance was normalized for students in the pandemic, he says. “[But] whether it will become part of the future or something that we’re ashamed of is not settled.”