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Students who were asked to use a facial recognition software to make sure they weren’t cheating in online exams are suing the software provider, saying their biometric data was not kept safe.
In a proposed class action lawsuit filed Friday in Illinois federal court, students Rutvik Thakkar, William Gonigam and Andrea Kohlenberg say ProctorU violated the Illinois Biometric Information Privacy Act (BIPA) by failing to stop students’ data from being stolen and offered for sale on an online forum for hackers in July.
“Because Defendant did not take the proper steps to safeguard Plaintiffs’ biometrics, Defendant was subject to a data breach,” the lawsuit says.
The lawsuit added that ProctorU also does not specify exactly how long it keeps student biometric information, in breach of BIPA. “Accordingly, the only reasonable conclusion is that Defendant has not, and will not, destroy biometric data when the initial purpose for collecting or obtaining such data has been satisfied.”
If your information was compromised in a breach you could join a data breach lawsuit investigation and have a lawyer review your case for free.
The Illinois General Assembly passed the Biometric Information Privacy Act (BIPA) in 2018.
The laws require biometric data, however used, to be in compliance with certain rules. Some of these rules include getting consent, publishing policies on how the data is stored and schedules of when the data will be destroyed.
ProctorU was used to conduct a wide range of online exams including the Law School Admission Test, or LSAT, which student Kohlenberg took in November 2020, and tests for English as a Foreign Language, which Thakkar took online in January, the lawsuit says.
The software collects information on the face and facial movements, like checking if eyes are moving, to prevent cheating by looking at a phone, for example.
Softwares such as ProctorU that use biometrics to create identity profiles for students have become more popular as schools moved to remote learning amid the COVID-19 pandemic.
However, they have also come up against serious privacy allegations in the process. Students taking the Bar Exam for law were forced to urinate on camera because if they broke eye contact their exams would be terminated, the lawsuit alleges. Others have been recorded breaking down in tears on the software.
In March 2020, after the UC Santa Barbara Faculty Association raised concerns about the privacy and digital rights of students from using ProctorU, the company responded by threatening to sue the association for defamation, the lawsuit states.
But the concerns were warranted. In July 2020 a ProctorU data breach allegedly exposed the information of almost 500,000 students, the lawsuit states.
“In direct violation of BIPA, from at least approximately June 2019 through present, Defendant has failed to “store, transmit, and protect from disclosure all” biometrics in its possession using a “reasonable standard of care,” the lawsuit says.
The class action lawsuit points out that, unlike other identifiers that can be used to access sensitive information, biometric data is biologically unique to a person and, once compromised, can’t be changed.
The students are seeking certification of the Class, damages, statutory penalties, interest, restitution, attorney’s fees and costs and a jury trial. Under the law, damages can be awarded at up to $5,000 for each “reckless” violation of BIPA or $1,000 for each negligent violation.
The students are seeking to represent any Illinois student who used ProctorU to take an exam online.
Meanwhile, an increasing number of class action lawsuits are being filed in the wake of biometric technology’s growing usage.
Top Class Actions has been monitoring developments in this field as it relates to consumer data protection and safety and continues to keep readers abreast of the latest lawsuits. Click here for more information on BIPA and the future of biometric privacy laws in the United States.
Have you used an online testing platform that used facial recognition? Are you concerned about how your information is being stored? Let us know in the comments!
The students are represented by Carl V. Malmstrom of Wolf Haldenstein Adler Freeman & Herz LLC and Alec M. Leslie, Max S. Roberts and Christopher R. Reilly of Bursor & Fisher PA.
The ProctorU Biometric Data Security Class Action Lawsuit is Thakkar et al v. ProctorU, Inc., Case No 2:21-cv-02051, in the U.S. District Court for the Central District of Illinois.
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