Why is Online Proctoring Under Fire?

Proctoring means the supervision of examinations, primarily to prevent cheating. Developed because of the Covid pandemic, online proctoring is a new way of supervising testing in real time through a computer’s webcam, microphone, and software that closely monitors the device’s desktop and running applications.

This new form of proctoring allows online university students to take hourly and final examinations at home, without traveling to campus or remote testing centers to take such tests alongside other students under supervised conditions.

Online proctoring is also a hot, controversial issue right now that’s garnered substantial coverage in the press. One reason it’s such a contentious issue is that venture capital firms, well-funded software developers, and a cottage industry of proctoring service providers could make billions of dollars over the coming decades from the widespread adoption of online proctoring. All these industry players are mounting campaigns to sell colleges, universities, and even some secondary schools software that provides aggressive surveillance of an examinee and their environment around the computer where that student is taking an online test.

Aligned against this industry are the overwhelming majority of college and graduate students who’ve accumulated experience with online proctoring since the fall of 2020. They hate this practice. Remote proctoring reconnaissance is so invasive that it’s drawn intense scrutiny from student groups, consumer watchdogs, civil libertarians, six U.S. Senators, and—as we’ll discuss—a mid-2022 attack by a federal court.

OnlineEducation.com readers who have never heard about the remote proctoring controversy are likely to feel shocked by how software developers have turned home PCs into surveillance platforms. Moreover, a Vice Magazine investigation found that higher education students had started openly rebelling against online proctoring late in 2020. That rebellion has only gained momentum since then, and it’s easy to see why.

Artificial intelligence appears to drive most of these applications as they record precise, minute details of an examinee’s biometric data. Throughout an exam, the proctoring software typically records video that tracks the examinee’s head and eye movements through the webcams, and the microphone records room sounds. The software logs all key presses and the frequency and direction of page scrolling and mouse cursor movements. The vast amount of data collected by these applications is astonishing.

Some proctoring apps can even enable a live remote proctor to take command over the examinee’s computer. For example, the proctor can swing the mouse cursor out of the way to obtain a better view of objects on the screen while the examinee is trying to answer test questions under time pressure. Some tearful examinees found that sudden and unexpected loss of control over their systems especially unnerving.

An August 2022 study of law school and bar examination proctoring software reported that because of operating system-level access permissions granted by users, these products engaged in “sweeping” surveillance that appears to be all-inclusive. Besides key logging, these software suites gained access to the examinee’s personal data stored on the device by using screen captures, drive access, process monitoring, and audiovisual feeds.

The study’s authors from Princeton University, Georgetown Law School, and the University of Melbourne point out that outside of this context, these features only exist in malware—malicious software developed by hackers and other criminals to steal data, or to damage, disable or destroy computer systems. Malware examples include computer viruses, adware, ransomware and—not surprisingly—spyware that gathers web browsing and other data about the user and their application usage, and might grant hackers remote access.

Course instructors can later review videos of any “suspicious” behavior that the proctoring software’s artificial intelligence algorithms flag. One approach judges whether individual frames recorded on video seem suspicious, then derives a “suspicion level” by calculating the percentage of suspicious frames and then comparing that abnormal proportion to the class average.

Nevertheless, critics charge that these systems are ineffective at revealing or deterring cheating. Critics also contend these systems are racist because their facial recognition subsystems pose more difficult challenges for Black, Hispanic, and racially diverse examinees than than they pose for white test takers—even in cases where college investigators subsequently didn’t suspect or could not prove cheating.

One of the most disturbing aspects is that many of these applications continue operating silently after the exam for which they were installed. This effect was documented by the Princeton-led team and another team of researchers in 2021. Yet 43 percent of undergraduates fail to uninstall these applications following the examination that required the proctoring software. Both research teams argue that student compliance like this occurs because young college students trust their universities, and assume those schools would never do anything to harm them. As a result, they grant these programs “institutional legitimacy” that is neither justified nor deserved. “These students say that they believe their university would not use the software to proctor exams if it was dangerous,” says the 2021 report.

Keep in mind that most college, graduate, and professional students enrolled in online courses usually don’t have a choice as to whether they wish to consent to installing the proctoring software. They have to consent. They can refuse to install the software, but that generally means they can’t take a test. If they can’t sit for tests in a required class, that usually means they cannot pass that course and, consequently, they’ll never graduate.

In August 2022, the United States District Court for the Northern District of Ohio ruled it was unconstitutional for public-funded colleges and universities across the nation to conduct, at the start of test sessions, one of the most invasive forms of online proctoring known as “room scans.”

A desktop computer with a camera built into the top of a large screen—like Apple’s iMac models—cannot perform a room scan. Because proctors use the webcam to carefully look for potential evidence of cheating, examinees with such widescreen desktop computers also have to buy a USB or WiFi peripheral camera that they can pick up and move around the room for this scan. Here is how we described the room scan inspection procedure required by the GMAT’s administrator, the Graduate Management Admissions Council, at that time:

Before an examinee can begin the home test, a proctor will conduct a thorough visual inspection of the room, which requires the examinee to pick the camera up and sweep around the visual field, both vertically as well as horizontally, while listening to instructions from the proctor through the computer’s sound system. The proctor is looking for evidence of “cheat sheets” taped to walls or hidden in obscure areas.

GMAC claims that this “check-in” inspection should take about 15 minutes. But it can take longer. Furthermore, at any time during the test, a proctor can interrupt the examinee and ask them to refocus the camera’s field of vision from themselves to objects within the room. And GMAC records the entire three hours worth of the camera input, the microphone audio, and the activity on the computer’s desktop, including any software “whiteboard” calculations.

These days some proctoring software suites do things a bit differently, such as by communicating the proctor’s live camera instructions through a series of on-screen prompts or text messages instead of audio. Nevertheless, today the core elements of most room scans required by the proctoring industry for university tests are similar to those originally introduced by high-stakes testing administrators like GMAC and Educational Testing Service in early 2020.

In most of these pre-test inspections, the examinee receives instructions to aim the camera such that the remote proctor can view a 360-degree, floor-to-ceiling panorama of the room, furniture, and personal belongings around the computer used for testing. The examinee also must leave that camera running and promptly provide a view of anything inside the room should the proctor make such a request once the test begins. Should the student refuse to comply, the proctoring service will report that refusal to the instructor, and in some cases, may even cancel the exam on the spot.

The Ohio case was filed by an undergraduate at Cleveland State University, Aaron Ogletree. In his complaint against the university and its board of trustees, the plaintiff told the court that he originally had been informed by the school that no room scan would be required for a routine exam required for his general chemistry course. However, about two hours before the 12:30 PM test, he received an unexpected email from the college’s proctoring service saying that it would require a room scan anyway.

Ogletree said he wasn’t able to put away prescription drugs as well as some confidential financial documents like tax forms that he had left on a table in his bedroom that was near his computer. He claimed that he ran out of time before the exam and had no empty containers quickly available in which to store those items.

The drug packaging labels may have been an embarrassing and potentially prejudicial disclosure for Ogletree. That’s because he suffers from an immune system disorder that left him particularly vulnerable to the transmission of infections like Covid. He also told the court that was the reason why he had received approval to take home versions of his classes in the first place.

The proctoring service, of course, asked him to shoot the confidential documents during the room scan. Although it took less than a minute for Ogletree to scan those items with his camera, those images were nonetheless recorded by the software so that third parties could review them on video later.

The plaintiff mainly argued that the room scan amounted to an illegal warrantless search precluded by the Fourth Amendment to the Constitution. He also argued that his civil rights were violated under the 14th Amendment and sought to enforce those rights under 28 U.S.C. § 1983.

The Ruling and Appeal

The court dismissed nearly all the counterarguments made by Cleveland State, and agreed with the plaintiff that this room scan amounted to an illegal warrantless search precluded by the Fourth Amendment.

In a key passage from his opinion, Judge J. Phillip Calabrese sharply criticized the defendants for offering a history of only “sporadic and discretionary use” of room scans. He ruled that sort of record delivered little support in the way of substantiation or arguments in favor of the use of room scans as uniquely and genuinely effective at preventing cheating:

. . .the efficacy of the means Defendant has chosen to advance its purpose is a factor in determining reasonableness. Without question, other procedural safeguards would advance the same purposes—indeed, Cleveland State employs some of them. Also, pedagogical alternatives to tests for assessing students, for instance, a final project or paper, might minimize or eliminate the need for remote scans. Plaintiff points to several ways in which students may cheat regardless of the use of room scans. Besides pointing to the potential deterrent effect, Defendant does not offer much argument or evidence to support the efficacy of room scans. Perhaps experience with room scans is too recent or not extensive enough to offer much in this regard. Whatever the case, a record of sporadic and discretionary use of room scans does not permit a finding that room scans are truly, and uniquely, effective at preserving test integrity. Accordingly, this factor weighs in Plaintiff’s favor too.

However, although the Northern District of Ohio ruled that the practice was unconstitutional, that trial court curiously did not yet impose an order or an injunction while it waits for remedy briefs from the parties. Those briefs have been delayed. Four weeks after this decision, the Ohio attorney general’s office filed a complaint on behalf of Defendant-Appellant Cleveland State and its president, Laura Bloomberg, with the Sixth Circuit U.S. Court of Appeals.

The Northern District also avoided rendering opinions on any of the other intrusive surveillance practices typically conducted during online proctoring like those we describe above. So in the wake of this ruling, a vocal coalition of digital rights advocacy groups led by Fight for the Future, the Electronic Frontier Foundation, and the Electronic Privacy Information Center (EPIC) are sure to want those practices ruled unconstitutional.

As online interactions become increasingly common in higher education, those groups are certain to force more courts to address claims involving privacy rights under various legal theories.