A lawsuit against a critic of remote proctoring will have an important hearing next week when the Supreme Court of British Columbia will decide whether to dismiss the suit under protections for the public interest. The hearing will test what critics of the case say was a suit meant to silence concerns about a controversial edtech service.
In 2020, the digital proctoring company Proctorio brought a lawsuit against Ian Linkletter, who was then a learning technology specialist at the University of British Columbia. The suit, which has become infamous among edtech critics, accused Linkletter of copyright infringement for posting tweets that criticized Proctorio, whose services the University of British Columbia used.
The suit revolves around eight tweets Linkletter posted in August 2020 that had links to seven Youtube videos as well as a screenshot of a Proctorio Academy webpage. Proctorio has alleged that Linkletter violated its copyright. The videos, which had been posted by the company as “unlisted” on Youtube, described how Proctorio’s software works. The screenshot showed that the links had been disabled, court documents say.
Linkletter maintains he posted these links to illustrate Proctorio’s “lack of transparency” about how their algorithms work, according to court documents.
Next week, from February 7 through 11, the case will have hearings in the Supreme Court of British Columbia for Linkletter’s petition to dismiss the suit under the Protection of Public Participation Act. That peition seeks to have the lawsuit tossed out on the grounds that, among other things, the company hasn’t identified any real harm, that the tweets hyperlinked to information that was already publicly available through Youtube, and that Linkletter was simply contributing to the public discourse on the controversial monitoring services, according to court documents.
A Controversial Service
The use of automated proctoring increased during the pandemic, when colleges were forced to rely more on online instruction. The services are supposed to police cheating among students, but they have proven to be controversial. Student groups and even some colleges have argued that the services violate student privacy, cause false-positive accusations of cheating, and rely on racially biased algorithms. At least one proctoring service, ProctorU, even said it’d stop using AI-only proctoring services last year.
The Proctorio case is widely considered by observers to be an attempt to silence criticism of the company. The suit has been often cited as an example of the broader problem of strategic lawsuits against public participation (SLAPP) suits, which are designed to censor critics with the threat of stressful and potentially expensive legal costs. Although it may have caused anxiety among some observers, the lawsuit, which experts say is typical of Proctorio's aggressive handling of critics, is still viewed as a rarity in the edtech industry.
Proctorio Loses Appeal
At the end of last week, in one of the most recent updates to the case, a court in British Columbia threw out an appeal brought by Proctorio which sought to allow the company to cross-examine Linkletter about private communications and to submit more evidence regarding Linkletter’s tweets, according to a person familiar with the case who agreed to talk on background.
After the appeal was rejected, Linkletter retweeted a comment 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 better,” he tweeted.
“I’m really happy that we won our appeal,” Linkletter said during an interview with EdSurge. “I think this is an important case with ramifications for freedom of expression and academic freedom, and I’m looking forward to winning it.”
Proctorio, in contrast, says that this has nothing to do with freedom of expression. The company says it is defending its intellectual property from Linkletter, who they allege used “fraudulent credentials” to repeatedly publish protected information about their software. “He's claiming we are trying to stifle his freedom of expression. We are not. He has tweeted hundreds of times about us, both before and after the order, none of it flattering,” said the director of communications for Proctorio, David Lux, in an email. “The only actions we have taken issue with are the posts where he published dishonestly obtained confidential and proprietary information.”
Bigger Issues
Skeptics of digital proctoring have also painted the court’s decision to rule against the evidentiary appeal as a win for the freedom to criticize edtech companies.
When the suit was brought, in 2020, it gave critics of edtech companies pause to consider that lawsuits could be an effective corporate tool for silencing them.
The lawsuit has caused critics to become more strategic in public, Laura Gogia, a senior analyst at the Tambellini Group, indicated. But it hasn’t stopped criticisms.
She explained that the lawsuit caught edtech critics off-guard as an example of a growing and profitable company “punching down” on an individual critic. Yet, despite the controversies around online proctoring, the space was still profitable.
“Proctorio didn’t need to bring this lawsuit,” Gogia said.
But the suit has kicked up lots of tangible support for Linkletter from the community, including teach-ins, open letters, and fundraisers. A GoFundMe against the suit has raised nearly $86,000 to date.
The reaction to the latest update in the Proctorio case, Gogia said, also reflects a larger issue. While teaching and learning staff are very well-respected outside their institutions, Gogia said, inside they are often viewed simply as faculty support.
The director of academic technology at California State University at Sacramento, Jenae Cohn, for example, has written that the shift to remote learning has increased the reliance of academics and administrators on staff members for technical support. And yet, that staff is often kept out of the decision-making process around teaching, curriculum development, and research.
These communities have a long-standing tradition of fierce criticism about their areas of expertise, especially since many digital teaching and learning technologists feel as though they don’t have that much institutional influence in which edtech purchases institutions are making, Gogia indicated. They also represent an important “counterweight” to the claims of edtech companies, Gogia said, since they can provide an expertise that many instructors cannot.
* This story was updated to include a comment from Proctorio.
