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Virtual Exam Case Primes Privacy Fight Over College Room Scans

Jan. 25, 2023, 10:10 AM

A legal dispute over a university’s use of exam proctoring software that allegedly scanned students’ rooms is set to shape the scope of Fourth Amendment and privacy protections for online college tests.

Cleveland State University last week asked a federal appeals court in Cincinnati to review a district court finding that the “room scans” were unconstitutional searches. The case could influence how other students litigate their privacy rights and change how universities virtually monitor their students during exams, attorneys said.

The US Court of Appeals for the Sixth Circuit’s eventual decision will become “cited in future lawsuits” regardless of the outcome, said Anna Bullock, an associate at Kohrman Jackson Krantz LLP practicing in education and technology law.

The ruling will have great potential weight concerning enforcement, Bullock said, noting that the argument “outlined supporting Aaron Ogletree’s position in this case is going to be recreated in cases involving different types of monitoring.”

Ogletree, a CSU student, sued the school in March 2021 after the proctoring software programs it used for remote testing—Respondus and Honorlock—required him to conduct video scans of his bedroom as a prerequisite to taking virtual exams in that space.

The scans were mandated in order to identify any study guides or notes forbidden to be present during testing. But they also captured private information—including Ogletree’s Social Security number and medical prescription information—that were visible to both the proctors and other students present for the exam, according to his complaint.

Judge J. Philip Calabrese of the Northern District of Ohio in August 2022 found in favor of Ogletree that the scans violated Fourth Amendment protections against unreasonable searches, and later permanently blocked the university from subjecting Ogletree to room scans.

“Ensuring academic integrity is essential to our mission and continues to guide us as this matter is considered on appeal,” Dave Kielmeyer, CSU’s associate vice president of communications, said in a statement to Bloomberg Law, declining to offer further comment.

Matthew Besser, principal at Bolek Besser Glesius LLC—the firm representing Ogletree—said his public comments on CSU’s appeal were limited due to the pending nature of the litigation.

“The district court’s decision on the merits of the Fourth Amendment issue was correct and, you know, we believe that the court of appeals is going to affirm it,” Besser said.

Wider Implications

Proctoring software was implemented heavily during the Covid-19 pandemic, as most US universities shifted temporarily to virtual instruction. But remote testing and the use of proctoring software is unlikely to completely disappear, even as most students have returned to in-person learning, said Jenna Rubin, an associate counseling schools for Fisher & Phillips LLP in Atlanta.

An appellate decision addressing the Fourth Amendment will be most impactful for public universities, Rubin said.

Those schools, as extensions of the government, must adhere to constitutional limitations. Private colleges and universities, though not subject to the same constitutional restrictions, remain subject to other state and federal laws.

Cases like Ogletree v. Cleveland State University highlight the balancing act schools must perform when it comes to educational integrity and student privacy, according to Rubin. The best way to avoid similar privacy claims would be to follow consistent testing procedures and avoid room scans prior to exams, she said.

“There are concrete reasons why these steps are being taken and why these measures are being pursued, and I think that these cases also show that there are ways to minimize the risk of a privacy claim in whatever form,” Rubin said.

The district judge highlighted the inconsistent manner in which room scans were enforced at the discretion of proctors and professors in his decision.

The ruling on Calabrese’s decision will influence whether students subjected to similar monitoring in the Sixth Circuit’s jurisdiction decide to bring litigation, said Bullock of Kohrman Jackson Krantz LLP. Sixth Circuit precedent is mandatory for federal courts in Kentucky, Michigan, Ohio, and Tennessee.

“If the district court’s decision is upheld, I believe that universities are going to be much more careful with their compliance efforts to ensure students are indicating consent to some of these anti-dishonesty measures,” Bullock said, adding that she thinks CSU will be hard-pressed to successfully overturn the decision.

A decision affirming the unconstitutional nature of room scans would likely have influence beyond the Sixth Circuit, said Sara Geoghegan, legal counsel at the Electronic Privacy Information Center. Technology often develops too fast for the court system to keep up, so privacy cases like Ogletree hold weight and become useful references for other judges, she said.

Geoghegan worked on a consumer-protection complaint against five of the largest online proctoring service providers that was filed with the Office of the Attorney General for the District of Columbia in 2020. The monitoring companies were accused of collecting excessive personal data, including biometric identifiers, and of using potentially biased artificial intelligence to detect cheating.

The finding in Ogletree is unlikely, though, to influence the handful of biometric privacy cases filed over the use of proctoring software because they don’t cite the Fourth Amendment, attorneys said.

To contact the reporter on this story: Skye Witley at switley@bloombergindustry.com

To contact the editors responsible for this story: Tonia Moore at tmoore@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com