Fight for the Future statement on Proctorio's attempt to silence critics through legal bullying

Posted February 22, 2022, 7:49 PM

Screenshot from ProctorioIsWorseThanAProctologyExam.com

Fight for the Future is a digital rights organization with a ten plus year history of advocating for human rights and civil liberties as they relate to technology and the policy that governs it. We helped organize the massive online protests that defeated SOPA/PIPA, we’ve led the largest ever campaign to ban the use of facial recognition surveillance, and we’ve run corporate accountability campaigns targeting companies and brands including Spotify, Amazon, Facebook, Google, Salesforce, SXSW, Livenation, Twitter, Id.me, Clearview AI, Experian, and many more.

On November 30th, 2021, we received a subpoena from Proctorio, an eproctoring company that has been widely criticized by security experts, student groups, racial justice organizers, and privacy advocates. Eproctoring programs like Proctorio are unnecessary, invasive, dangerous, and fail to prevent academic dishonesty. They demonstrate systemic bias against non-white students by using racist algorithms that are less able to detect dark-skinned faces, are harmful for students with testing anxiety, discriminate against students with disabilities as well as low income students and students with children. The Washington Post has reported on students forced into degrading situations such as urinating in cups in order to not be flagged as cheating. Proctorio specifically did not disclose for months a major security flaw in 2021 that left tens of thousands of student webcams and online accounts accessible to hackers, removed the logos of major academic institutions from their website when a VICE investigation revealed that these institutions were not Proctorio clients, and their CEO posted a student’s private chat logs in a social media forum after that student criticized Proctorio’s product.  We believe that surveilling students has a chilling effect on academic freedom and is fundamentally incompatible with a free society. We have long campaigned for biometric surveillance like the facial recognition Proctorio uses to be banned. Academic institutions basing their integrity on eproctoring, and especially on eproctoring services rendered by an organization as flawed and abusive as Proctorio, is absurdly misguided and harmful.

 We are publishing a copy of Proctorio’s subpoena here.

Here is a link to our motion to quash Proctorio’s fishing expedition and our Executive Director Sarah Roth-Gaudette’s declarations as a part of the motion. We are grateful to the Harvard Cyberlaw Clinic for their support in this matter.

Proctorio’s subpoena relates to their attempt to build a case that Miami University Undergrad Erik Johnson defamed the company by stating his principled objections to their business practices and conduct. Their counter-suit was filed in response to Johnson’s suit over their abuse of the DMCA to censor his criticism, the latest in Proctorio’s strategy of making flimsy legal arguments to harass their critics. One of their claims against Johnson is that he retweeted two posts from Fight for the Future that included the blatantly satirical website that we built comparing Proctorio’s invasive software to a proctology exam.

Through their attorneys, Proctorio demanded that we hand over an enormous amount of information about our advocacy work exposing the harms of the eproctoring industry, including internal emails and privileged communications with the Electronic Frontier Foundation (EFF), who have acted as our legal counsel in the past. The company demanded we hand over “all documents and communications related to the online proctoring industry,” a wildly broad demand with no legal basis. The subpoena also demanded communications between Fight for the Future and Canadian security researcher Ian Linkletter, who like Erik Johnson has also been targeted by Proctorio’s legal team after criticizing the company’s software when he encountered it at his academic institution. After we objected, Proctorio narrowed some of their demands. But they are still demanding all our internal communications about Proctorio, and they have indicated they will sue us if we don’t produce them.

Fight for the Future will continue to fight back against  Proctorio’s overly broad legal demands. This subpoena amounts to a fishing expedition. It’s a form of harassment clearly intended to silence critics of Proctorio and its CEO. A Canadian court recently quashed Proctorio’s appeal in their case against security researcher Ian Linkletter and are now considering his Protection of Public Participation application.

We will not be silenced or intimidated. Throughout our organizations’ history we have taken on powerful and unscrupulous corporations, and time and time again we’ve won victories for human rights and digital justice. Proctorio’s attempts to bully us through their legal team will not change our principled view that surveillance- based eproctoring is inherently harmful and incompatible with students’ basic human rights and safety. Nor will it deter us from running campaigns pressuring institutions to cut ties with Proctorio and other eproctoring companies.

We are launching a new campaign to call on the Department of Education to investigate whether any federal money is being spent on discriminatory eproctoring software like Proctorio’s. And we are recommitting to keeping our website ProctorioIsWorseThanAProctologyExam.com updated with this blundering and evil company’s latest transgressions against human rights, student safety, and basic decency. Please see the already lengthy list at the bottom of ProctorioIsWorseThanAProctologyExam.com, which will be updated soon.