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Ohio Court Says Distance Learning ‘Room Scans’ Violate The Fourth Amendment

from the things-Kyllo-couldn't-even-have-envisioned dept

The COVID pandemic changed the way America does business. And that includes the educational business. Many schools are publicly funded but those public funds are used to purchase intrusive surveillance tools for the sole purpose of preventing distance learners from somehow “cheating” on their own education.

Never mind the fact that cheating doesn’t guarantee success. That’s beside the question. The real question is why educational institutions believe such intrusion is necessary. Being a distance learner means having your every internet move scrutinized. It means allowing (in some cases) every keystroke to be logged. It means proving over and over again you are who you are and that you are trying to earn an honest education. In the most intrusive circumstances, it means allowing educators and administrators to virtually enter your home, look around your bedroom, and unilaterally declare certain facial expressions and body movements to be evidence of cheating.

And for what? What do we get? Obviously, students have a vested interest in succeeding, even if it ultimately means nothing more than fewer uncomfortable conversations with parents. For students attending public colleges, success just means moving themselves one step closer to crippling debt and a job market unlikely to value their degree as much as the institution that sold it to them.

Anti-cheating software is a joke. It is predicated on the hilarious notion that the United States is a meritocracy and that only those who earn their wins honestly should be rewarded. Nothing could be further from the truth. And it’s unclear how a student googling the details of an obscure historic event is any different than an employee googling how to insert an Excel table into a Word document, despite the employee ensuring their employer during interviews that they had “excellent” Microsoft Office skills.

Anyway, this long rant brings you to this decision [PDF], which is sure to alter the long-accepted “we can do what we want” assumptions of education providers and their preferred tech “solutions.” (via Courthouse News Service)

Proctoring software used by Cleveland State University demands access to students’ homes. There are multiple providers at play. Respondus locks down students’ browsers during testing, preventing them from surfing the web (or other software) for answers to tests. Honorlock uses AI to detect cheating via laptop cameras. It also allows educators and administrators access to these cameras to view students’ rooms for things that might indicate students are cheating.

Even though nothing in the Cleveland State student manual mandates room scans prior to testing, both of these products require a scan before testing can proceed. The process requires the student to allow access to the camera while holding up their school ID so administrators can verify their identity. Then, via a private chat channel, administrators demand access to the contents of a student’s room via webcam to look for anything that might be used to cheat on tests.

Aaron Ogletree, a student with health issues impacting his immune system that made his more susceptible to COVID infection, continued his education from home. Being a distance learner, he was subjected to virtual searches of his room prior to testing. He objected to these “room scans.” His objections were ignored by the school.

Ogletree sued. And he has obtained a ruling stating virtual room searches by publicly funded schools in Ohio violates the Constitution.

Although the record shows that no student, other than Mr. Ogletree, ever objected to the scans, the facts also implicate the core places where society, to the extent it can agree on much these days, recognizes reasonable and legitimate privacy interests—namely, the home. Though schools may routinely employ remote technology to peer into houses without objection from some, most, or nearly all students, it does not follow that others might not object to the virtual intrusion into their homes or that the routine use of a practice such as room scans does not violate a privacy interest that society recognizes as reasonable, both factually and legally. Therefore, the Court determines that Mr. Ogletree’s subjective expectation of privacy at issue is one that society views as reasonable and that lies at the core of the Fourth Amendment’s protections against governmental intrusion.

While it’s understandable the university might have been caught off guard by a legal challenge to processes no other student had even questioned, it’s completely incomprehensible that it decided to argue so vehemently (and so poorly) to defend intrusive surveillance of students’ homes and bedrooms. But it did. And the court doesn’t find any of its arguments remotely (intended) persuasive.

First, the school argued there was no violation (and no expectation of privacy) because the school did this all the time when deploying its proctoring tech. It (and I am not kidding) compared its peering into internal rooms of houses to overland flights by aircraft.

For this proposition, Defendant cites California v. Ciraolo, 476 U.S. 207, 215 (1986), in which the Supreme Court held that it was unreasonable to expect that marijuana plants were constitutionally protected from being observed from an altitude of 1,000 feet “in an age where private and commercial flight in the public airways is routine.”

But a bedroom of a house is never in “plain view” of the public. And the Supreme Court’s 2001 Kyllo decision made it clear use of tech to peer into people’s homes was a violation of rights.

The school even cited Kyllo, claiming its “general public use” proctoring tech was different from the far more novel (at that point) thermal imaging tech at the center of the case. But that misses the point of the Supreme Court decision, the Ohio court says. It’s the intrusion that matters, not whether or not the tool used for the intrusion is well-known or easily obtained.

But the Supreme Court did not hold the inverse—that the use of a technology “in general public use” could not be a Fourth Amendment search. To the contrary, Katz held, as relevant here, that the procedural antecedents to a search that the Constitution requires apply even where new technologies make accessible places and information not otherwise obtainable without a physical intrusion. While cameras might be generally available and now commonly used, members of the public cannot use them to see into an office, house, or other place not publicly visible without the owner’s consent

The school also tried to compare surveillance of students’ rooms to the monitoring of device usage and email communications by government employees using government-owned devices. WTF says the court, pretty much blowing by this argument to state two obvious things: (1) if the college wants to alter the contours of the Fourth Amendment, it’s going to need the assistance of a much higher court, and (2) this was a student in his own room, not a government employee.

Finally, the school claimed the search of rooms pre-testing was mostly “regulatory” or “administrative,” not unlike the entry of private homes by government employees required of recipients of certain welfare benefits. It’s an imaginative invocation of precedent definitely not on point. And federal courts rarely award points for creativity.

[U]nlike Wyman and its progeny, this case involves the privilege of college admission and attendance and does not involve a benefit made available to all citizens as of right. Additionally, the record here shows a variable policy—enforced, unevenly, in the discretion of a combination of proctors and professors—of using remote scans that make a student’s home visible, including to other students, with uncertain consequences

The process Cleveland State uses to test distance learners isn’t that much different from other programs in place elsewhere in the country. This initial victory places a litigation target on the backs of publicly funded schools that believe the only recognized right is their right to demand whatever they want from students. This is going to change things. Unfortunately, that change will likely manifest as fewer schools offering remote learning options, rather than a recognition that mitigating cheating need not involve violating students’ rights.

Filed Under: 4th amendment, aaron ogletree, anti-cheating software, covid, distance learning, honorlock, proctor software, respondus, room scans, surveillance, webcams
Companies: cleveland state university