A lawsuit against a critic of remote proctoring has a key hearing next week, when the Supreme Court of British Columbia will decide whether the lawsuit should be dropped under the protection of the public interest. The hearing will test what critics of the case say was a lawsuit designed to silence concerns over a controversial edtech service.
In 2020, digital proctoring company Proctorio filed a lawsuit against Ian Linkletter, a learning technology specialist at the University of British Columbia at the time. The lawsuit, which has become infamous among edtech critics, accused Linkletter of copyright infringement for posting tweets criticizing Proctorio, whose services the University of British Columbia used.
The lawsuit revolves around eight tweets Linkletter posted in August 2020 with links to seven YouTube videos and a screenshot of a Proctorio Academy webpage. Proctorio has alleged that Linkletter has infringed copyright. The videos, which were posted to YouTube as “unlisted” by the company, describe how Proctorio’s software works. The screenshot showed the links were disabled, court documents say.
Linkletter claims he posted these links to illustrate Proctorio’s “lack of transparency” about how their algorithms work, according to court documents.
Next week, Feb. 7-11, the case will have hearings in the British Columbia Supreme Court for Linkletter’s petition to dismiss the lawsuit under the Protection of Public Participation Act. That petition seeks to dismiss the lawsuit on the grounds, among other things, that the company has determined no real harm, that the tweets hyperlinked to information already publicly available on YouTube, and that Linkletter simply contributed to the public discourse on the controversial control services, according to court documents.
A controversial service
The use of automated proctoring increased during the pandemic, when colleges had to rely more on online education. The services are supposed to monitor student fraud, but they have proved controversial. Student groups and even some colleges have argued that the services violate student privacy, generate false positive charges of cheating and rely on racially biased algorithms. At least one proctoring service, ProctorU, even said last year it would stop using AI-only proctoring services.
The Proctorio case is widely regarded by observers as an attempt to silence criticism of the company. The lawsuit has often been cited as an example of the broader problem of strategic lawsuits against public participation (SLAPP), which are designed to censor critics with the threat of stressful and potentially expensive legal fees. While it has caused concern among some observers, the lawsuit, which experts say is typical of Proctorio’s aggressive dealings with critics, is still considered a rarity in the edtech industry.
Proctorio loses appeal
Late last week, in one of the most recent updates to the case, a British Columbia court dismissed an appeal filed by Proctorio, which sought to allow the company to investigate Linkletter over private communications and provide more evidence regarding the tweets from Linkletter, according to a person familiar with the matter who agreed to speak in the background.
After the appeal was rejected, Linkletter a comment retweeted that said Proctorio was “spyware” as well as other tweets asking people not to partner with the company. “Don’t be a Proctorio partner. Don’t be a Proctorio provost. Don’t be a Proctorio professor. Do it better,” he tweeted†
“I’m very happy that we won our call,” Linkletter said during an interview with EdSurge. “I think this is an important case with implications for free speech and academic freedom, and I look forward to winning it.”
Proctorio, on the other hand, argues that this has nothing to do with freedom of expression. The company says it is defending its intellectual property against Linkletter, which it claims has used “fraudulent credentials” to repeatedly publish proprietary information about its software. “He claims that we are trying to suppress his freedom of expression. We are not. He’s tweeted about us hundreds of times, both before and after the order, nothing flattering,” Proctorio communications director David Lux said in an email. “The only actions we’ve had issues with are the messages in which he unfairly obtained confidential and proprietary information.”
Digital proctoring skeptics have also portrayed the court’s decision to rule on the evidence appeal as a victory for the freedom to criticize edtech companies.
When the lawsuit was filed in 2020, it gave critics of edtech companies pause to consider that lawsuits can be an effective corporate tool to silence them.
The lawsuit has led critics to become more strategic in public, said Laura Gogia, a senior analyst with the Tambellini Group. But it doesn’t stop the criticism.
She explained that the lawsuit caught edtech reviewers by surprise as an example of a growing and profitable company “turning down” an individual critic. But despite the controversies surrounding online proctoring, the space was still profitable.
“Proctorio didn’t need this lawsuit,” Gogia said.
But the suit has generated a lot of tangible support for Linkletter from the community, including teach-ins, open letters and fundraisers. A GoFundMe against the lawsuit has raised nearly $86,000 so far.
The response to the latest update in the Proctorio case, Gogia said, also reflects a bigger problem. While teaching and learning staff outside their institutions are highly respected, Gogia said, inside they are often seen simply as faculty support.
For example, the director of academic technology at California State University in Sacramento, Jenae Cohn, has written that the shift to distance learning has increased the reliance on academics and staff administrators for technical support. And yet, those staff are often kept out of the decision-making process around teaching, curriculum development, and research.
These communities have a long tradition of fierce criticism of their areas of expertise, especially because many digital education and learning technologists feel they don’t have as much institutional leverage over edtech buying institutions, Gogia said. They also provide an important “counterbalance” to the claims of edtech companies, Gogia said, because they can provide an expertise that many instructors can’t.
* This story has been updated with a comment from Proctorio.