A federal district court judge ruled Monday that spatial scanning, which is part of many online prosecutor services, violates the Constitution.
Judge J. Philip Calabrese of the U.S. District Court for the Northern District of Ohio sided with the plaintiff in a ruling that some legal observers described as a caution about the use of controversial software that is exploding during the pandemic. The plaintiff, a student at Cleveland State University, was asked to briefly scan his bedroom before taking a remote test in early 2021. That student claimed the request violated his Fourth Amendment rights, which include protections against “unreasonable searches.”
Many colleges and universities have argued that online verification software is necessary to protect academic integrity and limit cheating by remote students. While acknowledging Cleveland State’s “legitimate purpose” in doing so, the judge argued that the student’s “expectation of privacy” [at home] is what society deems reasonable and is at the heart of the Fourth Amendment’s protection against government intrusion.
The ruling disputed the university’s arguments, which included claims that room scans are “standard industry-wide practice” and that students “often consent to their use.”
Colleges nationwide should pay close attention to the decision because it may be relevant to different ways of learning and teaching, said Joshua D. Nolan, a higher education attorney and partner at Bricker & Eckler LLP.
“This is perhaps the first case dealing with security software and this Fourth Amendment,” he said. And it has to do with “both hybrid learning environments and online learning environments. It’s important for many different audiences.
What the ruling itself means for colleges nationally, said lawyers contacted Chronicle, has less to do with regulations and more to do with that unspoken message: “Slow down.” They say agencies that use control software should refer to the ruling as a “guidance” tool as they evaluate their existing policies and approaches: How and why do they use online authorization tools and require certain features?
“If your previous thought was, ‘We think we need it and we think there’s a good reason to need it, then we can do it,’ now there’s at least one federal court that says, ‘Well, that’s not the standard,'” said Chad Marlow, Senior Policy Advisor, American Civil Liberties Union. “The big message from this is that just because a student is enrolled at your university doesn’t mean they’ve given up their privacy rights.”
That’s especially true, he added, if there’s no data to prove safeguards like room scanning limit cheating — something the judge addressed in his ruling. “The reasonableness of the intrusion diminishes dramatically if you can’t provide evidence that the surveillance actually works,” Marlow said.
The judge also wrote that online research was not the only way for the university to protect academic integrity. “Undoubtedly, other procedural safeguards would further the same goals — indeed, Cleveland State uses some of them,” he wrote. They include test alternatives, such as assigning a final project or paper, that “may minimize or eliminate the need for remote scanning.” Privacy advocates have also suggested open-book exams and honor codes.
Come on down
Another takeaway from the decision is that it provides students with more tangible support for their grievances.
While the use of online proctoring companies such as ProctorU, Honorlock and Proctorio exploded during the pandemic, they have since come under fire for a number of reasons, including alleged racial bias and cybersecurity risks. There are dozens of student-led petitions on Change.org that have previously called for their removal, including from the University of Tennessee at Chattanooga, the University of Wisconsin at Madison and Washington State University.
“Do [the ruling] increase the risk that students concerned about this may refer to this incident? Absolutely,” Nolan said. “Does that create a situation where we now have Fourth Amendment case law related to these types of services? Yes.”
Still, the lawyers noted that it would be premature to make assumptions about broad legal applications.
First, any decision based on the Constitution and the Fourth Amendment applies only to public colleges because they are considered part of the government. Nolan said the ruling is also very “fact-specific” to the student’s particular case; For example, student Aaron Ogletree was unable to test in person due to health reasons and therefore had no alternative options. Nolan noted, however, that the judge is focused Home a private place invites further discussion as it has become a more common learning environment for students.
Cleveland State has not yet announced whether it will appeal the decision. According to Monday’s ruling, the parties have until Sept. 12 to submit a “brief joint status report” to the judge on the status of the proposed remediation.
In a statement, the university wrote that its lawyer “is advising.” [the plaintiff’s] advise on appropriate next steps. Ensuring academic integrity is essential to our mission and guides us as we move forward. While this matter is still in active litigation, we are unable to comment further.