Proctorio, the company behind invasive exam monitoring software that has drawn the ire of students throughout the pandemic, has subpoenaed a prominent digital rights group in what privacy advocates are calling another attempt by the notoriously litigious company to silence its critics.
Fight For The Future, a group which has run a campaign opposing the use of online proctoring software, said it received a broad subpoena demanding internal communications related to the company. The subpoena demands that the group surrender communications between Fight For The Future and other critics of the company, including the Electronic Frontier Foundation (EFF) and Ian Linkletter, a researcher who was sued by the company in 2020 after posting a critical analysis of the software that linked to public training videos on YouTube.
The subpoena was issued as part of an ongoing lawsuit against Proctorio filed by the EFF on behalf of Erik Johnson, a student at Miami University who publicly criticized the company. Johnson’s tweets criticizing Proctorio were removed after the company claimed they had violated copyright under the Digital Millennium Copyright Act (DMCA), and Proctorio’s subpoena specifically demands that Fight For The Future hand over “all documents and communications related to [Johnson].”
Notably, Fight for the Future is not a party in this lawsuit.
The subpoena also calls on Fight For The Future to surrender documents related to the online proctoring industry as a whole, as well as communications between the organization and Linkletter.
Fight For The Future released a statement condemning the move, saying the group “will not be silenced or intimidated.”
“Proctorio’s attempts to bully us through their legal team will not change our principled view that surveillance-based eproctoring is inherently harmful and incompatible with students’ basic human rights and safety,” the group said in a statement published to its website and emailed to Motherboard. “Nor will it deter us from running campaigns pressuring institutions to cut ties with Proctorio and other eproctoring companies.”
In response to a request for comment, lawyers representing Proctorio scoffed at the claims, stating that the scope of their subpoena is reasonable.
“We seek these highly-relevant documents solely to defend against Mr. Johnson’s baseless claims and to support Proctorio’s counterclaims, in full accordance with the Federal Rules of Civil Procedure,” wrote Justin Kingsolver, a representative for Crowell & Moring LLP, which is representing Proctorio in the case. “Our subpoena is narrowly tailored to seek only the most essential documents, and we have made every reasonable attempt to work with FFTF’s counsel to narrow the requests even further, but FFTF has refused to engage.”
Evan Greer, the deputy director of Fight For The Future, pushed back against Proctorio’s claims that the subpoena is “narrowly tailored” in an email sent to Motherboard.
“Even after we pushed back, Proctorio is still demanding that we hand over internal communications about our advocacy work that have no bearing on Proctorio’s case with Erik Johnson,” Greer told Motherboard. “Proctorio says our internal communications will aid in their lawsuit against Johnson. They won’t – but they could be used to harass us and other privacy advocates.”
Like other companies offering exam surveillance tools, Proctorio has faced widespread criticism from students, teachers, parents, and digital security experts since its rise to prominence during the pandemic-era shift to remote learning. The software’s predictive algorithms automatically flag students for “abnormal” and “suspicious” behavior based on head and eye movements, mouse scrolling, and other metrics, raising fears of discrimination against neurodivergent students. The software also uses facial recognition algorithms that have been shown to be racially biased; one researcher found that Proctorio failed to detect Black faces 57 percent of the time.
Some schools have responded to the criticism by dropping support for Proctorio, and both universities and students have reported that the monitoring software doesn’t actually prevent cheating. Students using Proctorio and similar exam monitoring tools have also said that they often need to jump through hoops just to get the software to work.
Fight For The Future has filed a motion to quash the subpoena, stating that being forced to comply would impair its ability to communicate with sources and continue its work. p>
“If disclosed, FFTF’s documents and communications related to Proctorio could be used to subject third parties who have communicated with FTFF to harassment, including but not limited to harassment by abuse of legal process,” wrote Sarah Gaudette, the group’s executive director, in a declaration accompanying the motion. “As an advocacy organization that is often contacted by whistleblowers, journalists, and people who have been victims of privacy abuses, such a deterrent would irreparably harm FFTF’s work.”