From data subjects to data suspects: challenging e-proctoring systems as a university practice

Abstract

E-proctoring is a set of software and tools to monitor students’ behaviour during online examinations. Many universities have implemented this type of invigilation in response to the lockdowns during the pandemic to guarantee the validity and the integrity of exams. However, the intrusiveness of such technology into the students’ personal environment along with major accuracy problems (e.g., in authenticating black students) has attracted the scrutiny of various European data protection authorities and, more recently, equality bodies. In this paper, we critically approach the European normative framework available in countering the risks and situations of harms generated by e-proctoring through the lenses of data protection and anti-discrimination law. This work, in particular, is one of the first to systematise and analyse the corpus of online proctoring-related decisions that have emerged in the EU over the past three years. After an overview of the technical aspects of such technology and an outline of the legal issues debated in the literature, the paper will reconstruct and discuss the convergences and divergences in how courts and independent authorities have assessed the lawfulness of online invigilation tools. In our analysis, we observe that such instruments were evaluated differently depending on the concrete features implemented. However, with some notable exceptions, the General Data Protection Regulation and the anti-discrimination framework have largely proven helpful to combat the most intrusive forms of e-proctoring deployment or to mitigate their risks. Nevertheless, to ensure a safer and fairer educational environment, we conclude that a few crucial issues—including the effectiveness of the collective enforcement of rights, discriminatory effects for people not covered by a protected ground, and the governance of edTech within the university—should be further taken into account.