Federal Judge: Invasive Online Proctoring “Room Scans” Are Also Unconstitutional

Online proctoring companies employ a lengthy list of dangerous monitoring and tracking techniques in an attempt to determine whether or not students are potentially cheating, many of which are biased and ineffective. This week, one of the more invasive techniques—the “room scan”—was correctly deemed unconstitutional by a federal judge. “Room scans” are a common requirement in proctored exams where students are forced to use their device’s camera to give a 360-degree view of everything around the area in which they’re taking a test. Often, this is a personal residence, and frequently a private space, like a bedroom. (A demonstration of a room scan by Proctorio can be seen here.) 

We have criticized room scans as well as many other dangerous aspects of online proctoring. In addition to these room scans, remote proctoring tools often record keystrokes and use facial recognition to supposedly confirm whether the student signing up for a test is the one taking it; they frequently include gaze-monitoring or eye-tracking and face detection that claims to determine if the student is focusing on the screen; they gather personally identifiable information (PII), sometimes including scans of government-issued identity documents; and they frequently collect device logs, including IP addresses, records of URLs visited, and how long students remain on a particular site or webpage. These automated tools are hugely privacy invasive and can easily penalize students who don’t have control over their surroundings, or those with less functional hardware or low-speed Internet, as well as students who, for any number of reasons, have difficulty maintaining “eye contact” with their device. For these many reasons, schools should use other means beyond invasive remote proctoring to ensure exam integrity, and at the very least, proctoring companies should collect and retain the minimally required amount of data to do so. Often, the users of these tools are unable to opt out of data collection, and by collecting all of this information, proctoring tools endanger young people’s privacy.

In this case, a student enrolled in a public university (Cleveland State University) learned he would be required to undergo a room scan shortly before an exam. The court decided correctly that the room scan  was an unreasonable search under the Fourth Amendment. As the court recognized, room scans provide the government with a window into our homes—a space that “lies at the core of the Fourth Amendment’s protections” and long-recognized by the Supreme Court as private. Traditionally, the Fourth Amendment requires a warrant before the government can search in our homes, and that includes searches by government institutions like a state-run university. There are few exceptions to this requirement, and none of the justifications offered by the university—including its interests in deterring cheating and its assertion the student may have been able to refuse the scan—sufficed to outweigh that requirement in this case. 

Over the last few years, students have rarely had the option to opt-out of using remote proctoring tools, and have been essentially coerced into allowing a third-party, and their school, to collect and retain sensitive, private data about them if they want to pass a class. This opinion, though it is not binding on other courts, is an important one. Any student of a state school hoping to push back against room scans in particular could now cite it as persuasive precedent. As of yet, however, there has been no judgment or injunction, which means what specifically Cleveland State will have to do is not fully determined. 

The university failed to show room scans like this are “truly, and uniquely, effective at preserving test integrity.” We hope schools will recognize, in part thanks to this decision, that this element of remote proctoring is both unnecessary and invasive, and, at least for state schools, unconstitutional. All schools should cease its use.