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A student who was asked to use facial recognition software to make sure he wasn’t cheating in online exams is suing the software company, saying he wasn’t advised how his biometric data was going to be used.
Plaintiff Paul Clarke filed the class action lawsuit against Examity in a Illinois federal court Friday, alleging the company violated the Illinois Biometric Information Privacy Act (BIPA).
While studying at Western Governors University, Clarke used Examity to take online exams, the class action states. Examity collected Clarke’s facial geometry, including his eye movements and facial expressions, to check his identity when he logged in to do the exam.
However, Examity did not inform Clarke of the specific length of time that it intended to collect, store, and use his biometrics, as per BIPA. Nor did it provide him with a retention schedule and guidelines for permanently destroying his biometrics, he alleges.
“Upon information and belief, Examity continues to retain Plaintiff Clarke’s biometrics beyond the intended purpose for collection,” the class action states.
Clarke said he was bringing the claim to stop Examity “from further violating the privacy rights of Illinois residents” and to recover damages for its alleged “improper and lackluster collection, storage, and protection of these individuals’ biometrics in violation of BIPA.”
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 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.
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 Examity 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 class action alleges. Others have been recorded breaking down in tears on the software.
Clarke is looking to represent a Class of Illinois residents who used Examity from March 2020 to take an exam online and who had their facial geometry collected, plus a subclass of Western Governors University students.
He is seeking certification of the class action, damages, interest, restitution, fees, costs and a jury trial.
Meanwhile, an increasing number of class action lawsuits are being filed in the wake of biometric technology’s growing usage. In March, students using a similar online examination product, ProctorU, sued the software provider, saying their biometric data was not kept safe.
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 class action 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 plaintiff is represented by Carl V. Malmstrom of Wolf Haldenstein Adler Freeman & Herz LLC and Alec M. Leslie, Christopher R. Reilly and Max S. Roberts of Bursor & Fisher, P.A.
The Examity BIPA Class Action Lawsuit is Paul Clarke et al., v. Examity, INC., Case No. 1:21-cv-02081, in the U.S. District Court for the Northern District of Illinois.
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