Company that makes millions spying on students will get to sue a whistleblower
Yesterday, the Court of Appeal for British Columbia handed down a jaw-droppingly stupid and terrible decision, rejecting the whistleblower Ian Linkletterâs claim that he was engaged in legitimate criticism when he linked to freely available materials from the ed-tech surveillance company Proctorio:
https://www.bccourts.ca/jdb-txt/ca/23/01/2023BCCA0160.htm
If youâd like an essay-formatted version of this post to read or share, hereâs a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
https://pluralistic.net/2023/04/20/links-arent-performances/#free-ian-linkletter
Itâs been a minute since Linkletterâs case arose, so Iâll give you a little recap here. Proctorio is a massive, wildly profitable ed-tech company that sells a surveillance tool to monitor students while they take high-stakes tests from home. The tool monitors the studentâs computer and the studentâs face, especially their eye-movements. It also allows instructors and other personnel to watch the students and even take control of their computer. This is called âremote invigilation.â
This is ghastly in just about every way. For starters, Proctorioâs facial monitoring software embeds the usual racist problems with machine-learning stuff, and struggles to recognize Black and brown faces. Black children sitting exams under Proctorioâs gimlet eye have reported that the only way to satisfy Proctorioâs digital phrenology system is to work with multiple high-powered lights shining directly in their faces.
A Proctorio session typically begins with a student being forced to pan a webcam around their test-taking room. During lockdown, this meant that students who shared a roomâââfor example, with a parent who worked night-shiftsâââwould have to invade their familyâs privacy, and might be disqualified because they couldnât afford a place large enough to have private room in which to take their tests.
Proctorioâs tools also punish students for engaging in normal test-taking activity. Do you stare off into space when youâre trying through a problem? Bzzzt. Do you read questions aloud to yourself under your breath when youâre trying to understand their meanings? Bzzzt. Do you have IBS and need to go to the toilet? Bzzzt. The canon of remote invigilation horror stories is filled with accounts of students being forced to defecate themselves, or vomit down their shirts without turning their heads (because looking away is an automatically flagged offense).
The tragedy is that all of this is in service to the pedagogically bankrupt practice of high-stakes testing. Few pedagogists believe that the kind of exam that Proctorio seeks to recreate in studentsâ homes has real assessment merit. As the old saying goes, âTests measure your ability to take tests.â But Proctorio doesnât even measure your ability to take a testâââit measures your ability to take a test with three bright lights shining directly on your face. Or while you are covered in your own feces and vomit. While you stare rigidly at a screen. While your tired mother who just worked 16 hours in a covid ward stands outside the door to your apartment.
The lockdown could have been an opportunity to improve educational assessment. There is a rich panoply of techniques that educators can adopt that deliver a far better picture of studentsâ learning, and work well for remote as well as in-person education. Instead, companies like Proctorio made vast fortunes, most of it from publicly funded institutions, by encouraging a worse-than-useless, discriminatory practice:
https://pluralistic.net/2021/06/24/proctor-ology/#miseducation
Proctorio clearly knows that its racket is brittle. Like any disaster profiteer, Proctorio will struggle to survive after the crisis passes and we awaken from our collective nightmare and ask ourselves why we were stampeded into using its terrible products. The company went to war against its critics.
In 2020, Proctorio CEO Mike Olsen doxed a child who complained about his companyâs software in a Reddit forum:
https://pluralistic.net/2020/07/01/bossware/#moral-exemplar
In 2021, the reviews for Proctorioâs Chrome plugin all mysteriously vanished. Needless to say, these reviewsâââfrom students forced to use Proctorioâs spywareâââwere brutal:
https://pluralistic.net/2021/09/04/hypervigilance/#radical-transparency
Proctorio claims that it protects âeducational integrity,â but its actions suggest a company far more concerned about the integrity of its own profits:
https://pluralistic.net/2022/02/16/unauthorized-paper/#cheating-anticheat
One of the critics that Proctorio attacked is Ian Linkletter. In 2020, Linkletter was a Learning Technology Specialist at UBCâs Faculty of Education. His job was to assess and support ed-tech tools, including Proctorio. In the course of that work, Linkletter reviewed Proctorioâs training material for educators, which are a bonanza of mask-off materials that are palpably contemptuous of students, who are presumed to be cheaters.
At the time, a debate over remote invigilation tools was raging through Canadian education circles, with students, teachers and parents fiercely arguing the merits and downsides of making surveillance the linchpin of assessment. Linkletter waded into this debate, tweeting a series of sharp criticisms of Proctorio. In these tweets, Linkletter linked to Proctorioâs unlisted, but publicly available, Youtube videos.
A note of explanation: Youtube videos can be flagged as âunlisted,â which means they donât show up in searches. They can also be flagged as âprivate,â which means you have to be on a list of authorized users to see them. Proctorio made its training videos unlisted, but they werenât privateâââthey were visible to anyone who had a link to them.
Proctorio sued Linkletter for this. They argued that he had breached a duty of confidentiality, and that linking to these videos was a copyright violation:
https://pluralistic.net/2020/10/17/proctorio-v-linkletter/#proctorio
This is a classic SLAPPâââa âstrategic litigation against public participation.â Thatâs when a deep-pocketed, thin-skinned bully, like Proctorio, uses the threat of a long court battle to force their critics into silence. They know they canât win their case, but thatâs not the victory theyâre seeking. They donât want to win the case, they want to win the argument, by silencing a critic who would otherwise be bankrupted by legal fees.
Getting SLAPPed is no fun. Iâve been there. Just this year, a billionaire financier tried to force me into silence by threatening me with a lawsuit. Thankfully, Ken âPopehatâ White was on the case, and he reminded this billionaireâs counsel that California has a strong anti-SLAPP law, and if Ken had to defend me in court, he could get a fortune in fees from the bully after he prevailed:
https://twitter.com/doctorow/status/1531684572479377409
British Columbia also has an anti-SLAPP law, but unlike Californiaâs anti-SLAPP, the law is relatively new and untested. Still, Proctorioâs suit against Linkletter was such an obvious SLAPP that for many of us, it seemed likely that Linkletter would be able to defend himself from this American bully and its attempt to use Canadaâs courts to silence a Canadian educator.
For Linkletter to use BCâs anti-SLAPP law, he would have to prove that he was weighing in on a matter of public interest, and that Proctorioâs copyright and confidentiality claims were nonsense, unlikely to prevail on their merits. If he could do that, heâd be able to get the case thrown out, without having to go through a lengthy, brutally expensive trial.
Incredibly, though, the lower court found against Linkletter. Naturally, Linkletter appealed. His âfactotumâ is a crystal clear document that sets out the serious errors of law and fact the lower court made:
https://drive.google.com/file/d/1aB1ztWDFr3MU6BsAMt6rWXOiXJ8sT3MY/view
But yesterday, the Court of Appeal upheld the lower court, repeating all of these gross errors and finding for Proctorio:
https://www.bccourts.ca/jdb-txt/ca/23/01/2023BCCA0160.htm
This judgment is grotesque. It makes a mockery of BCâs anti-SLAPP statute, to say nothing of Canadian copyright and confidentiality law. For starters, it finds that publishing a link can be a âperformanceâ of a copyrighted work, which meant that when Linkletter linked to the world-viewable Youtube files that Proctorio had posted, he infringed on copyright.
This is a perverse, even surreal take on copyright. The court rejects Linkletterâs argument that even Youtubeâs terms of service warned Proctorio that publishing world-viewable material on its site constituted permission for people to link to and watch that material.
But what about âfair dealingâ (similar to fair use)? Linkletter argued that linking to a video that shows that Proctorioâs assurances to parents and students about its productsâ benign nature were contradicted by the way it talked to educators was fair dealing. Fair dealing is a broad suite of limitations and exceptions to copyright for the purposes of commentary, criticism, study, satire, etc.
So even if linking is a copyright infringement (ugh, seriously?!), surely itâs fair dealing in this case. Proctorio was selling millions of dollars in software to public institutions, inflicting it on kids whose parents werenât getting the whole story. Linkletter used Proctorioâs own words to rebut its assurances. What could be more fair dealing than that?
Not so fast, the appeals panel says: they say that Linkletter could have made his case just as well without linking to Proctorioâs materials. This isâŠbad. I mean, itâs also wrong, but itâs very bad, too. Itâs wrong because an argument about what a company intends necessarily has to draw upon the companyâs own statements. Itâs absurd to say that Linkletterâs point would have been made equally well if he said âI disbelieve Proctorioâs public assurances because Iâve seen seekrit documentsâ as it was when he was able to link to those documents so that people could see them for themselves.
But itâs bad because it rips the heart out of the fair dealing exception for criticism. Publishing a link to a copyrighted work is the most minimal way to quote from it in a debateâââLinkletter literally didnât reproduce a single word, not a single letter, from Proctorioâs copyrighted works. If the court says, âSure, you can quote from a work to criticize it, but only so much as you need to make your argument,â and then says, âBut also, simply referencing a work without quoting it at all is taking too much,â then what reasonable person would ever try to rely on a fair dealing exemption for criticism?
Then thereâs the confidentiality claim: in his submissions to the lower court and the appeals court, Linkletter pointed out that the âconfidentialâ materials heâd linked to were available in many places online, and could be easily located with a Google search. Proctorio had uploaded these âconfidentialâ materials to many sitesâââwithout flagging them as âunlistedâ or âprivate.â
Whatâs more, the videos that Linkletter linked to were in found a âHelp Centerâ that didnât even have a terms-of-service condition that required confidentiality. How on Earth can materials that are publicly available all over the web be âconfidential?â
Here, the court takes yet another bizarre turn in logic. They find that because a member of the public would have to âgatherâ the videos from âmany sources,â that the collection of links was confidential, even if none of the links in the collection were confidential. Again, this is both wrong and bad.
Every investigator, every journalist, every critic, starts by looking in different places for information that can be combined to paint a coherent picture of whatâs going on. This is the heart of âopen source intelligence,â combing different sources for data points that shed light on one another.
The idea that âgatheringâ public information can breach confidentiality strikes directly at all investigative activity. Every day, every newspaper and news broadcast in Canada engages in this conduct. The appeals court has put them all in jeopardy with this terrible finding.
Finally, thereâs the question of Proctorioâs security. Proctorio argued that by publishing links to its educator materials, Linkletter weakened the security of its products. That is, they claim that if students know how the invigilation tool works, it stops working. This is the very definition of âsecurity through obscurity,â and itâs a practice that every serious infosec professional rejects. If Proctorio is telling the truth when it says that describing how its products work makes them stop working, then they make bad products that no one should pay money for.
The court absolutely flubs this one, too, accepting the claim of security through obscurity at face value. Thatâs a finding that flies in the face of all security research.
So what happens now? Well, Linkletter has lost his SLAPP claim, so nominally the case can proceed. Linkletter could appeal his case to Canadaâs Supreme Court (about 7% of Supreme Court appeals of BC appeals court judgments get heard). Or Proctorio could drop the case. Or it could go to a full trial, where these outlandish ideas about copyright, confidentiality and information security would get a thoroughâââand blisteringly expensiveâââexamination.
In Linkletterâs statement, he remains defiant and unwilling to give in to bullying, but says heâll have to âcarefully considerâ his next step. Thatâs fair enough: thereâs a lot on the line here:
https://linkletter.opened.ca/stand-against-proctorios-slapp-update-30/
Linkletter answers his supportersâ questions about how they can help with some excellent advice: âWhat I ask is for you to do what you can to protect students. Academic surveillance technology companies would like nothing more but for us all to shut up. Donât let them silence you. Donât let anyone or anything take away your human right to freedom of expression.â
Today (Apr 21), Iâm speaking in Chicago at the Stigler Centerâs Antitrust and Competition Conference. This weekend (Apr 22/23), Iâm at the LA Times Festival of Books.
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