USA: Room scan before online examination was unconstitutional
A student at Cleveland State University had to have his room inspected via camera before taking an online test. However, a court in the U.S. state of Ohio ruled last week that this was unconstitutional. During the Corona pandemic, the use of software to monitor exams at U.S. universities had expanded after they had to be taken online.
The chemistry student had to write an online exam in February 2021 and was informed two hours before the exam began that he would have to show his work environment and the materials there using his webcam. He then explained that his room contained confidential documents such as tax forms. However, he complied with the request, and subsequently sued the university.
In his lawsuit, the student argued that his right to privacy had been violated. He referred to the Fourth Amendment of the U.S. Constitution, which is intended to protect citizens from arbitrary searches of their homes, among other things.
The court followed this line of argument in its ruling: the inspection of the work environment by panning the camera was a disproportionate search within the meaning of the Fourth Amendment. As a rule, a corresponding judicial order is necessary for a search, This also includes state institutions such as universities.
Student had to take exam online
Admittedly, there are exceptions where a search warrant is not necessary. However, the arguments presented by the university, such as to prevent cheating, were not sufficient in this case, according to the court.
As the ruling indicates, Cleveland University had already offered online courses before the pandemic. According to the guidelines published for this purpose, the respective supervisor could decide whether students had to show their room via camera before starting a test.
In spring 2021, the university had offered a mix of face-to-face and online courses. However, because the individual was particularly vulnerable due to pre-existing conditions, he had to switch to the online options. According to the plaintiff’s lawyers, all other students present at an online exam were also able to see the room scans.
NGOs welcome ruling
Digital rights specialist NGO Fight For Future welcomed the ruling as an “important victory.” Lia Holland of the organization said the ruling should be a warning to other universities that continue to insist on such measures. All universities should stop using exam-monitoring software.
The civil liberties’ organization Electronic Frontier Foundation (EFF) also said that after the ruling, universities must acknowledge that it is an “unnecessary, invasive and unconstitutional” procedure, at least for state universities.
Both organizations have long criticized the use of proctoring software to oversee exams online. The EFF criticizes such programs as exposing students to unnecessary surveillance. At the same time, it argues, students can find ways to cheat on exams anyway. The programs cannot prevent this, but they violate the privacy of those affected.
The scope of the programs used in the U.S. varies, according to EFF. Some record all keystrokes, others use facial recognition to confirm students’ identities. Eye tracking is also used. This is to determine whether students are looking away from the monitor for “too long” during the exam. The EFF criticizes that many of these technologies are practically indistinguishable from spyware – software that records users’ activities without their knowledge. In addition, some of the data is stored not only at the universities, but also by the software providers. Even in the current case, a recording of the video was stored by the provider of the software used there. The EFF therefore also warns of the risk of data leaks.
The topic was also discussed in Germany during the pandemic. The State Commissioner for Data Protection of Baden-Württemberg, Stefan Brink, had published a handout for universities (in German) on the topic in July 2021. In it, he had clarified, among other things, that panning a camera through the student room is inadmissible. This also applies “in suspected cases of examination fraud”. Also, no Screenshots or pictures and no video or audio recordings may be made. Brink also described “particularly intrusive” tools that track eye or head movements as impermissible. (js)