PROCTORING OR PEEPING: RIGHT TO PRIVACY IN THE NEW NORMAL

INTRODUCTION

COVID 19 has brought an unprecedented challenge that has transformed our life and society like never before. There has been a tectonic shift to our mundane existence which has transformed many aspects of our life and education is one of the prominent ones that has gone through a sea change. Millions of children across the globe have been shut out of their classrooms for almost an entire year[1] and one of the many changes spawned by the pandemic is an immediate worldwide transition to the ubiquitous use of e-learning, from frontal teaching in classrooms to numerous video teleconferencing platforms like zoom and google meet.

While virtual learning has helped in maintaining continuity in education, online examinations have raised some serious concerns about their efficacy and fairness. The paramount need to maintain ‘academic integrity’[2] during online exams has compelled educational institutions to use proctoring platforms to prevent the scope of cheating in examinations.

ONLINE PROCTORING AND THE PRIVACY CONCERNS

The proctoring platforms use a combination of artificial intelligence and live human invigilators to detect facial and eye movements, background noises, monitor screen shifts, etc. Online proctored exams were conducted even before the pandemic struck but since the start of the pandemic and this new ‘tele- everything’ world, the dependence on online proctoring has risen manifold to ensure the examinee’s competence and is being used to conduct multiple entrance tests and internal exams by educational institutions. These proctoring platforms often ask the students to scan their whole room and record their audio, video, and desktop screens. They even collect sensitive personal data of candidates like biometrics including full name, phone number, scans of identity proof, and student ID numbers to enable identification and authentication of candidates when they login for the exams and store it without specifying the data retention period.[3] The data is further transferred to the educational institutions for review and can be accessed by multiple people without the consent of the candidates.

Recent incidents regarding the breach of privacy of students during the online proctored exams have raised some serious apprehensions about their safety. In an appalling incident of early January this year, some female students of a reputed college in Mumbai, alleged harassment by their online proctor during the exam. One of the proctors reportedly cyberstalked the female students and texted them multiple times on WhatsApp and other social media platforms during and after the exam. The screenshots of the screens with the photos of the students were saved on the proctor’s desktop.[4]

These proctors who ‘watch’ the students through their webcams during the exam are given access to all their personal details and are often hired without any background checks. Another such incident of misconduct was reported from the prestigious University in Bengaluru where the students were repeatedly asked to adjust their webcams and lower the camera angles to inappropriate positions during the exam and a proctor referred to a female student as ‘baby’ in response to a query about the examination.[5] These are but two of the many instances where the students’ privacy has been breached during the online proctored exams.

LEGAL DISCOURSE ON THE ISSUE

Since the glorious discourse of natural rights which has been celebrated globally over the past centuries and the phenomenon of protection of human rights and fundamental rights has always been the imperative obligation in all democracies. It is often argued that privacy is not just a safety frame but is integral to the enjoyment of freedom by humanity. “Right to privacy is a fundamental right” enshrined in the Constitutions of various countries across the globe, including under Article 21 of the Constitution of India as was unanimously recognized by the Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India.[6] It constitutes an integral part of the right to life as privacy is one of the essential elements for a dignified life. This fundamental right is multifaceted and data privacy is essential to the survival of the social and personal identity of all human beings. Additionally, India is a part of the ‘International Covenant on Civil and Political Rights’ (ICCPR) by which it is bound to take affirmative actions towards ensuring the privacy of its citizens. But considering the current state of affairs in times of the pandemic, online proctoring is an inevitable threat to privacy.

Whenever an issue of privacy arises, voluntary and well-informed consent plays a pertinent role. An individual might not be comfortable with the continuous access of his personal details. He effectively chooses what information he wants to share and with whom. No individual could access the private information of another without proper consent.

Undeniably, online proctoring poses a major threat to the consent of the individual. A student while giving proctored tests has to download third-party intermediary software which is to be given compulsory access to the data stored in the device in order to make the software function along with keeping their webcams on during the entire duration of the exam to enable human proctors and AI bots to monitor their body language and surroundings. This access to data is a clear intrusion into the personal space of an individual. The said software stores personal and contact information and biometric records of the candidate. Such information constitutes sensitive data which if retained, leaked, or misused could result in identity theft, fraud, and profiling. In addition to that, the information may be misused or sold by third-party intermediaries to make profits. In another incident, in January a student alleged that his Aadhar number was used to apply for a loan from a cooperative bank by one of the proctors.

Section 43A of the Information Technology Act, 2000[7] penalizes the body corporate who possess the sensitive personal information and is negligent in handling such information or uses such information for causing wrongful profit or loss. Despite that, these intermediaries find leeway in the law and are exempted from liability in case of any leak of data under Section 79 of the Information Technology Act, 2000[8] which exempts the intermediary from liability in certain cases for any third party information, data or communication link made available or hosted by him, posing a clear threat to the privacy of an individual.

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011[9] classifies personal sensitive information as passwords, financial information, sexual orientation, medical records, and biometric information.[10] Biometric information, being sensitive personal data should not be assessed by third-party intermediaries. Even the Personal Data Protection Bill, 2019[11] aims at protecting the personal data of the citizens in the country.

CONCLUSION

To ensure the privacy, it is important that limits should be set to prevent intermediary platforms from assessing the device data as well as voice notes and other biometric information. Moreover, the time period for storing data need to be set. The intermediaries should be bound to delete the personal data of students after the completion of the objective for which it was stored. It should be the express responsibility of the proctoring platform to keep the data of students secure and not use it for exploitation, cold calling, or any other manner whatsoever. It should be ensured that the data is not shared with any other third parties for any purposes not pertaining or otherwise except for conducting the online examinations.

To sum up, online proctored exams cannot be a viable alternative to offline exams. Apart from the exigent privacy concerns, many practical reasons like lack of internet connectivity, limited access to mobiles and laptops, technical glitches make them ominous. Open book exams on the other hand promote closer understanding and critical analysis of concepts and complex problem solving instead of rote learning.

AuthorS Name: Hashvi Bansal & Vrinda Gupta (Rajiv Gandhi National University of Law, Patiala)

References:               

[1] Sara Alhattab and Georgina Thompson, ‘COVID-19: Schools for more than 168 million children globally have been completely closed for almost a full year, says UNICEF’ (UNICEF, 2 March 2021) <https://www.unicef.org/press-releases/schools-more-168-million-children-globally-have-been-completely-closed> accessed 20 September 2021

[2] Olivia L. Holden, Meghan E Norris and Valerie A Kuhlmeier, ‘Academic Integrity in Online Assessment: A Research Review’ (Frontiers in Education, 14 July 2021) <https://www.frontiersin.org/articles/10.3389/feduc.2021.639814/full> accessed 20 September 2021

[3] ‘How Do Online Proctored Exams Work?’ (Examonline, 27 October 2020) <https://examonline.in/how-do-online-proctored-exams-work/> accessed 21 September 2021

[4] Prajwal Bhat, ‘NMIMS students allege harassment by online proctor during exams’, (The News Minute, 10 January 2021) <https://www.thenewsminute.com/article/nmims-students-allege-harassment-online-proctor-during-exams-141207> accessed 22 September 2021

[5] ‘Christ deemed-to-be University to probe proctor’s ‘misconduct’, (The Hindu, 25 June 2021) <https://www.thehindu.com/news/cities/bangalore/christ-deemed-to-be-university-to-probe-proctors-misconduct/article34958548.ece> accessed 22 September 2021

[6] K.S. Puttaswamy v Union of India 2017 10 SCC 1

[7] Information Technology Act 2000 s 43A

[8] Information Technology Act 2000 s 79

[9] Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

[10] Id.

[11] Personal Data Protection Bill, 2019.

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