Education Spyware Purveyor Uses Lawsuit As Excuse To Sling Subpoena At One Of Its Most Vocal Critics

Legal Issues

from the 'look,-Proctorio-would-just-prefer-they-shut-up' dept

Remote test-taking spyware company Proctorio has spent months turning itself into an internet villain. It all started when student and security researcher Erik Johnson decided to take a look at the inner workings of Proctorio’s spyware, noting that it tracked everything from eye movement to mouse movement (with plenty in between) in apparent hopes of keeping students from cheating.

For providing this public service, Johnson’s Twitter account was hit with bullshit DMCA takedown requests from Proctorio, which objected to his fair use posting of the extension’s code — code that could easily be examined by anyone who installed the company’s spyware.

Proctorio probably thought it could intimidate Johnson into silence with its bogus DMCA demands. Instead, it poked a bear, leading to it being sued over its DMCA abuse by Johnson, now represented by the EFF. This was a new experience for Proctorio, which was used to being the plaintiff in lawsuits filed to silence critics of its software.

Now that it’s being sued, Proctorio is attempting to inflict misery on other critics of its spyware — even entities that are not a party to the lawsuit filed by Erik Johnson against the company. As Monica Chin reports for The Verge, Proctorio is attempting to drag internal documents and communications belonging to a critical nonprofit into court, seemingly solely for the purpose of discouraging EFF-alikes from continuing to expose the more concerning aspects of its remote education software.

The controversial proctoring platform Proctorio has filed a broad subpoena against the prominent digital rights nonprofit Fight for the Future as part of its legal battle with Miami University student Erik Johnson, in what the group describes as an effort to silence critics through legal maneuvering.

Certainly Proctorio would prefer FFTF to STFU. The nonprofit has been openly critical of Proctorio and other companies selling schools spyware to keep an eye on distance learners. It has also created a website that encourages students to pressure schools into dropping contracts with companies like Proctorio, citing all sorts of privacy issues this kind of intrusive software creates.

Fight for the Future is not a party to this lawsuit. Nonetheless, Proctorio is hoping a subpoena will give it access to a whole bunch of communications it has no right to obtain.

The subpoena requests that FFTF produce “all documents and communications” between itself and EFF, Erik Johnson, and Ian Linkletter, as well as any related to the proctoring software industry.

FFTF is fighting back. It has asked the court to quash the subpoena [PDF], pointing out Proctorio is engaging in a proxy war against its many critics with the obvious intent of silencing them.

Proctorio’s requests are a thinly veiled attempt to appropriate this court’s resources to extract information regarding the internal workings of a non-party advocacy organization with, at best, a tangential connection to the underlying litigation. Moreover, the Subpoena appears to be specifically calculated to chill FTTF’s future advocacy by blunting its speech and deterring association. These factors weigh heavily in favor of quashing the Subpoena.

Proctorio cannot satisfy even the general standard articulated in Rule 45, let alone the heightened standard to which the Subpoena is subject. The portion of the Subpoena in dispute — the request for “all documents and communications related to [Proctorio]” — would produce documents irrelevant to the litigation at hand, imposes an undue burden on FFTF, and is improperly motivated by a desire to access FTTF’s internal strategy. For these reasons, the Subpoena should be quashed or modified.

Proctorio — which cannot ever let anything go — claims this is a fully-justified wielding of proxy government power. It said (in its statement to The Verge) that this is just normal litigation stuff wherein parties being sued toss subpoenas in the general direction of non-parties that may or may not have anything of interest to the defendant. And while that may be true in some cases, Proctorio has made enough enemies it can likely claim every critic possesses some form of information “relevant” to its defense.

But that doesn’t make Proctorio right. And it doesn’t do anything to undermine the common perception that Proctorio is limiting its subpoenas to vocal critics or the objective truth that dragging critical non-parties into litigation has an undeniable chilling effect. Hopefully, the court will reject Proctorio’s critic-centric dragnet and force it to focus on the parties directly involved in the lawsuit.

Filed Under: copyright, dmca, erik johnson, intimidation, spyware, subpoena, surveillance
Companies: eff, fight for the future, proctorio