Legal battles between controversial exam surveillance company Proctorio and its critics accelerated this week, as the company sought to expand its lawsuit against a Canadian educator while simultaneously being sued by a student for waging a “campaign of harassment.”
Last fall, the company sued Ian Linkletter, a learning technology specialist at the University of British Columbia, claiming he had infringed on the company’s copyright and violated its terms of service by tweeting links to the company’s training videos. The videos, which describe how Proctorio’s algorithmic exam proctoring software works, were hosted on Proctorio’s YouTube page, but were not publicly searchable.
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Linkletter countersued under a Canadian law that prohibits frivolous lawsuits intentionally designed to silence legitimate public criticism. Since the case began, he has spent more than $107,000 CAD (about $87,000 USD) on his defense—a combination of all his personal savings and more than $50,000 CAD raised by supporters via crowdfunding. His countersuit, which could have led to a dismissal and compensation for his legal expenses, was scheduled for a hearing April 28.
But last week, Proctorio filed an application to add more charges against Linkletter for his tweets, which could drag the case out even further. And court documents suggest the company may be looking to expand its legal action to include at least one other prominent critic who also tweeted a Proctorio training video.
“It’s obvious that they want to delay this, and one way they can do that is by bringing in stuff that’s irrelevant,” Linkletter told Motherboard. The delay has “really taken away that sense of security that there’s light at the end of the tunnel.”
Proctorio did not respond to a request for comment. CEO Mike Olsen previously told Motherboard that “The purpose of this restraining order is simply to prevent the sharing of confidential information. We are not after money; we do not want to silence critics; we don’t want anyone to get fired.”
The University of British Columbia, where Linkletter is employed, recently voted to ban the use of remote proctoring tools like Proctorio.
At the same time it seeks to expand its lawsuit against Linkletter, the company has been served with a lawsuit by the Electronic Frontier Foundation on behalf of Erik Johnson, a Miami University college student who has also been a vocal critic of the software on Twitter.
That complaint alleges that Proctorio had several of Johnson’s posts removed from Twitter by filing false copyright violation claims under the Digital Millennium Copyright Act (DMCA)—a law that is increasingly being weaponized by companies against individuals.
Johnson’s tweets contained screenshots of snippets of Proctorio’s code, which anyone who had downloaded the software could easily view, according to the lawsuit. They were part of a September Twitter thread in which he questioned Proctorio’s methodology and its privacy practices.
Twitter initially took the posts down at Proctorio’s request, but upon Johnson’s appeal, decided that they were not copyright violations. But Proctorio also filed DMCA takedown notices with GitHub and Pastebin, on which Johnson was hosting the code snippets, claiming that he had hacked the software and that his tweets were not fair use criticism under the law, according to the lawsuit. Those posts have not yet been restored.
“This is fair use, it’s obvious fair use, and they need to be penalized for what they’ve done,” Cara Gagliano, the EFF attorney handling the case, told Motherboard. “To say that that it isn’t fair use would have really negative consequences for all kinds of research, scholarship and commentary.”
Johnson is not the only person whose posts Twitter removed following a Proctorio DMCA request. According to the Lumen, a project that tracks DMCA notices, Proctorio also filed a takedown request on August 25, 2020 that removed a tweet including a Proctorio training video that one respondent described as “next level surveillance nightmare fuel.”
After riding the wave of pandemic-induced remote learning to explosive growth, the entire exam surveillance industry has come under intense criticism for using invasive anti-cheating technologies like eye-tracking and “abnormal” behavior detection. Students and privacy advocates alike have also accused the software tools of discriminating against low-income, neurodiverse, and students of color. But unlike its competitors, Proctorio has developed a reputation for being particularly aggressive in its responses to criticism.
Last July, Olsen was forced to apologize after he posted screenshots of a student’s private chat logs with a customer service agent. The company has also requested that peer reviewed journal articles be retracted and that records Motherboard obtained through public records requests be removed from the internet.
Much of the content that Proctorio is claiming as copyrighted and confidential in the Linkletter and Johnson cases comes from its training material, which has been distributed to hundreds of universities. And according to an affidavit filed in Linkletter’s case on behalf of John DeVoy, the company’s director of communications, dozens of those universities and several of Proctorio’s corporate partners have been publicly hosting the same information on their websites for anyone to view.
After Linkletter’s lawyers pointed this out to the company, Proctorio began sending takedown requests to those institutions, according to the affidavit. Some have complied, but not all. So far, Proctorio does not appear to have sued any of the institutions that have not removed the material.
“It’s no secret how it works. It’s no secret if you want to buy it. It’s only a secret if you want to criticize it,” Linkletter said.
