According to the Rechtbank Amsterdam, the UvA may continue using AI surveillance software “Proctorio” during online examinations without the students’ consent. The judgment was issued on a dispute initiated against the UvA by the University Central Student Council (CSR), which sought to guarantee an ultimate choice for students on the application of the technology. The court however found that the UvA administration had acted lawfully, complying with all rules and principles enshrined in the GDPR.
Our colleague Sarah Eskens, postdoctoral researcher at the Institute for Information Law has provided legal advice to the student councils of the Faculty of Law and the Faculty of Humanities in the initial phase of the dispute. She has shared her concerns with us on the ruling and the university’s response:
“In May, the University of Amsterdam decided to use online proctoring during the coronavirus crisis. Online proctoring is a way to hold and supervise exams remotely. When a student takes an exam, the proctoring software collects, among others, video and audio recordings of the student and their surroundings (via the webcam), on-screen activities, keystrokes and mouse movements, and web pages visited. Some students oppose online proctoring and I think they do so for the right reasons. Online proctoring is an invasive form of online surveillance that exposes the students’ most private place, often their bedroom, decorated with personal items and possibly religious artefacts. Such invasive tools should be used only when it is strictly necessary and no other options are possible.
A group of students sued the University of Amsterdam to stop the online proctoring and the court decided that under these exceptional circumstances, online proctoring could be considered necessary. The court’s judgement should not be interpreted by the university as a free pass to use proctoring. However, seeing the opinions published by various professors of our university, I fear that some will think too lightly about proctoring. Professor Fischer makes fun of the students and their living environments and writes that she is not impressed by people standing up for their privacy rights (source). Professor Van der Maas expresses that he is annoyed by “privacy watchdogs” (source). Both professors also rely on the misplaced idea that if a student voluntarily shares some personal information on social media, then they relinquish their privacy rights in all other domains. I call on the ICDS network to not think too lightly about online proctoring, regardless of the court’s judgment. The coronavirus crisis puts a lot of pressure on everyone. Let’s not increase this pressure more by unnecessarily exposing students in their private space, with the risk that the most vulnerable students experience even more stress.”
The Members of the CSR have issued the following statement to the RPA Human(e) AI, commenting on the outcome of the judgment and their future steps:
“The Central Student Council (CSR) of the UvA decided to take the issue of proctoring to court due to a multitude of factors. Our main reason was to ensure the privacy of students, on which we argue that it is invaded excessively. When the verdict ruled that this was not the case and that the non-consented gathering of students’ data, even including video, falls within the law was surprising for us. The specific arguments on which the verdict is based seem arguable. Firstly, the UvA uses the wrong legal basis (AVG 6.1 sub f), which can’t be used by governmental institutions. Secondly, the UvA states that eye tracking is not part of the surveillance program, but eye movement is literally a parameter within Proctorio and was mentioned in the student manual. Thirdly, the UvA said that it would only use proctoring if there is no reasonable other way to test a students’ knowledge, while around 150 exams are planned with proctoring and for none of them a clear consideration of other methods is available.
We are worried to see how easy it was for the university to introduce a new surveillance method which gathers personal data without consent and without properly consulting with the student councils on the matter. Apart from protecting students’ rights, we also hope to stir up a more ethical debate within our society regarding data collection and privacy. We will determine our next steps, including if we have the grounds to appeal, before the end of June.”