First reported by CalMatters.
In late 2022, US federal courts ruled against Cleveland State University in a lawsuit over their usage of Respondus’ LockDown Browser proctoring software. LockDown includes a “room scan” feature, where test-takers are required to show their entire testing environment before being allowed to proceed with an exam. Given that most remote test-takers take their exams at home – as most other environments may be subject to accusations of cheating – this requires them show their entire home environment, something which is normally a private space. Because Cleveland is a public university, and required the students to use this in order to complete their exam, the university violated the Fourth Amendment of the US Constitution – in particular, its restriction against “unreasonable searches and seizures.”
Although the record shows that no student, other than Mr. Ogletree, ever objected to the scans, the facts also implicate the core places where society, to the extent it can agree on much these days, recognizes reasonable and legitimate privacy interests – namely, the home. Though schools may routinely employ remote technology to peer into houses without objection from some, most, or nearly all students, it does not follow that others might not object to the virtual intrusion into their homes or that the routine use of a practice such as room scans does not violate a privacy interest that society recognizes as reasonable, both factually and legally. Therefore, the Court determines that Mr. Ogletree’s subjective expectation of privacy at issue is one that society views as reasonable and that lies at the core of the Fourth Amendment’s protections against governmental intrusion.
Full court ruling by Judge J. Philip Calabrese
In spite of this ruling, many universities still use proctoring software with room-scan functionality. The CalMatters article notes that Chico State, CSU San Marcos, SDSU, Cal Poly SLO, and UC Berkeley all admit to using room-scanning. I can also attest personally that Cerritos College uses Proctorio and LockDown Browser, both of which have room-scanning functionality and which could be used at the will of the professor.
The universities are not technically violating court rulings here. Because the appeal has not yet concluded, the ruling is only viable and binding within the jurisdiction the case was brought (Ohioan federal court). However, this does not mean that these universities should be ignoring the court precedent. Courts usually tend to uphold precedents set at other equal-level courts in other jurisdictions unless there is a substantial error in the ruling; no such error has occurred here.
Further, as supposed “champions of privacy”, Californian institutions should be setting the bar for how to correctly treat students and their privacy rights. Privacy is regularly mentioned in the state Constitution, and emphasized as a critical right. It’s also not like these issues have not been addressed before; proctoring is being constantly debated in the CSU and UC systems, the SSCCC for California’s community colleges has already voted on legislation to eliminate proctoring systems, and individual institutions pass resolutions like JR-2122-02 from Cerritos College all the time.
The OIC, thusly, opposes the continued use of room scanning (and in general of overbearing proctoring software) in California universities, and in educational institutions in other states.
Monica Hanson