An Exam Surveillance Company Is Trying to Silence Critics With Lawsuits

In August, as colleges and universities prepared for a fall semester that would mark the biggest experiment in online learning in history, Ian Linkletter, a learning technology specialist at the University of British Columbia, began researching Proctorio, the exam proctoring software many of the instructors at the school planned to use. Now, after tweeting an analysis critical of the software, Linkletter has become the target of a lawsuit, and says he has drained his savings while fighting back against the company's attempts to silence him.

“I was surprised it was happening to me, but not surprised this company was doing it,” Linkletter told Motherboard. As use of digital proctoring software has exploded as a result of the COVID-19 pandemic, so too has the criticism of those tools. But no company has been quite as aggressive in its response to criticism as Proctorio.

Linkletter, who has been working in the field of educational technology for 13 years, generally considers himself a proponent of software designed to improve the school experience. But what he found while researching Proctorio concerned him, along with many other educators and college students who are rebelling against Proctorio and similar algorithmic proctoring software. They argue that the tools are an unacceptable invasion of privacy and are destined to cause institutional discrimination against students who are marginalized, low-income, neurodiverse, or don’t otherwise fit the software developers’ definition of normal.

Over several days in August, Linkletter became a vociferous critic of Proctorio, tweeting out his thoughts alongside Proctorio’s training videos for instructors, which detailed how the software’s algorithms flag students for “abnormal” behavior during exams. Within a matter of hours of his tweets, the videos disappeared from YouTube—the first sign that Proctorio was paying attention to him.

Then, in early September, Linkletter got a call from a reporter at the Vancouver Sun. Proctorio was suing him for copyright infringement over the tweets. Without Linkletter knowing the case had been initiated, the Supreme Court of British Columbia had granted the company’s request for an injunction barring Linkletter from sharing what Proctorio described as confidential information about its software.

Linkletter’s case is the highest profile—and most financially damaging—example of the company’s tactics. On Oct. 16, he filed his response to the lawsuit, accusing Proctorio of initiating a type of case known as a strategic lawsuit against public participation, or SLAPP, which is designed to punish and discourage public criticism.

“All my personal savings and emergency savings went into funding the first part of my defense for this lawsuit,” Linkletter said. “I understand the significance of this. I understand what’s at stake if someone can’t speak. I take all of that very seriously and I’m going to do everything in my power to win.” Since the filing of his response to the lawsuit, a crowdfunding campaign to support Linkletter’s defense has raised more than $25,000.

In response to questions from Motherboard, Proctorio CEO Mike Olsen wrote that “The purpose of this restraining order is simply to prevent the sharing of confidential information. We are not after money; we do not want to silence critics; we don’t want anyone to get fired.” He accused Linkletter of antagonizing Proctorio’s staff and potentially showing students ways to circumvent the software, thus risking the "safety and security of the millions of students who use our platform.”

Proctorio’s campaign against its critics dates to at least March of this year, when Doug Holton, director of teaching and learning at Florida Polytechnic University, tweeted that several ed tech companies, including Proctorio, had “room for improvement” when it came to documentation about how their tools work. In response, the company called Holton’s bosses to complain about his comments, he disclosed in a recent tweet. Olsen said no one at Proctorio is aware of a company employee communicating with Holton’s superiors.

Then in April, the company requested the retraction of an article by Shea Swauger critical of algorithmic exam proctoring in the peer-reviewed journal Hybrid Pedagogy. When the journal refused, Proctorio CEO Mike Olsen and the journal’s editor, Jesse Stommel, got into a Twitter spat. Olsen has since deleted his tweets and made his account private.

Specifically, Proctorio took issue with a sentence in which Swauger said the company used facial recognition technology. Proctorio claimed it uses facial detection—to determine if a face is in the picture, but not whose face. But the company appears to, at the least, have an interest in facial recognition. Proctorio sent a letter to the National Institute of Standards and Technology (NIST) in June 2019 with its thoughts on how the government should set standards for facial recognition, according to a now defunct URL on NIST’s website and an agency spokesman, But on Aug. 14, 2020, the company withdrew those comments and they were removed from NIST’s website, the spokesman confirmed. Two days later, Olsen published a blog post titled “Why Proctorio does not use facial recognition.”

Olsen has also personally pushed back against students critical of his company. In June, a student who said he studied at UBC complained on Reddit that a Proctorio support staff member had gone “MIA” when the software crashed as the student was preparing to take a midterm. Under his username, artfulhacker, Olsen posted a copy of the student’s chat logs with the staff member and wrote, “If you're gonna lie bro… don't do it when the company clearly has an entire transcript of your conversation.”

The move was quickly panned as an inappropriate use of corporate data and an invasion of privacy. Olsen apologized and removed the chat logs.

As Motherboard has previously reported, Olsen also sent a Twitter direct message to Miami University student Erik Johnson in which he requested that Johnson remove posts he had made on Pastebin containing code showing which other programs Proctorio’s software blocks. Since the publication of Motherboard’s last article, Pastebin removed Johnson’s posts in response to a copyright infringement complaint, Johnson told Motherboard.

Several of Johnson’s tweets about the software were also taken down following copyright complaints. Olsen acknowledged that the company submitted the complaint to Pastebin, but did not directly address whether it was responsible for Johnson’s tweets being removed. “Proctorio has filed [Digital Millennium Copyright Act] requests in the past,” he wrote.

However, the company was behind a copyright infringement request to the file hosting service my.namejeff.com, which was hosting some of Johnson’s files, according to a copy of a Twitter direct message sent to the website’s operator from an official Proctorio account, which Motherboard viewed.

The company also sent a copyright infringement complaint to MuckRock, a public records platform which Motherboard used to submit records requests to universities about their use of exam proctoring software. In response to one of those requests, Texas Tech University provided a statistical usage summary documenting how many times students and instructors had used Proctorio. The company requested the summary be removed because it contained confidential information, according to a copy of the request seen by Motherboard. MuckRock declined to remove the public record.

Olsen said the company was not aware the document had been requested by a reporter writing for Motherboard, but maintained that the data was confidential.

One of the most alarming aspects of the company’s actions, according to the people on the receiving end of the copyright complaints, is that almost all of the information Proctorio is claiming to be confidential is easily available online.

In an affidavit filed alongside his response to Proctorio’s lawsuit, for example, Linkletter provided a list of more than a dozen websites and PDFs containing the same technical information about how the software works as the videos he tweeted. Most of the documents are openly published by the universities that contract with Proctorio.

The company appears to be particularly concerned with any materials that detail how its algorithms decide what behavior to flag as suspicious. Johnson’s tweets that Twitter removed in response to a copyright complaint contained a list of the metrics Proctorio tracks, including eye movements, head movements, number of clicks, and changes in audio levels. “This is all being used for criticism, research, and teaching purposes. It should, in theory, be covered under fair use protections in copyright law,” Johnson told Motherboard.

To determine suspicious behavior, Proctorio compares each test-taker’s metrics to all the other students taking the exam. Anyone who registers an abnormality—for example, moving their head either more often or less often than the class average—may be flagged as suspicious. In response to criticisms that this method will inherently discriminate against people with anxiety, cognitive or physical conditions, or simply a non-hermetic testing environment, Proctorio argues that its tool simply identifies moments worth further examination by the course instructor, who makes the ultimate decision about whether cheating occurred.

Proctorio’s aggressive response to critics may reflect the toll the student rebellion against its product is having on some campuses.

Swauger said that he has been surprised that Proctorio’s public approach to criticism has so contradicted the friendly, private conversations he had with Olsen and other staff members while conducting research for the Hybrid Pedagogy article. “It is baffling to me, in terms of [public relations], that they are responding the way they are,” he told Motherboard. “Because honestly if they did nothing, it would be so much better for them.”