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

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.

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Companies: eff, fight for the future, proctorio

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

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Anonymous Coward says:

The irony of it is, the “problem” they’re trying to solve doesn’t really exist anymore. It’s not clear that it ever truly did!

Why should the idea of “knowledge” be artificially limited, in an academic setting, to only the facts that are inside your own head and easily remembered? That’s not even close to how the world works in reality! Look at any skilled, knowledge-based profession: professionals will have a library of reference works at their disposal, and far more important than knowing a fact is knowing how to find it.

When we have the Internet available more-or-less free to all mankind, this particular concept of “cheating” loses all meaning and in fact becomes actively harmful: what they’re trying to prevent and punish is in fact a vital skill!

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: A great example from the trades

I worked as the bookkeeper for a plumbing company in the past, and now a flooring company. One of our bigger issue in installation are people who pride themselves on knowing how to do any job….and can’t ask for advice and often can’t receive advice almost at all, because they know what they are doing.

The academic test attitude hurts just about any profession, because it teaches people pride in their memory over finding the right answer.

PaulT (profile) says:


It’s still valuable for people to be able to do at least the basics in their own head, and that’s true no matter where you go in life. Certain things are things you should be able to recall from memory, and having that ability makes more advanced tasks easier.

“Look at any skilled, knowledge-based profession: professionals will have a library of reference works at their disposal, and far more important than knowing a fact is knowing how to find it.”

Well, this has always be true, but using that as a crutch to never bother to learn anything will often backfire if something goes wrong. As a seasoned IT professional, it’s often amusing to see how greener recruits react when the pressure’s on and they can’t access StackOverflow, or they find that the server they have to fix only allows them to boot into rescue mode and they have to start editing files with vi to bring it back up. By the time I’ve fixed the server, they’re still tearing their hair out trying to work out how to save a file because they always assumed they’d have other tools to work with.

Knowing how to Google something is fine, but still being able to do your job when Google is down is also a valuable aim.

Ceyarrecks (profile) says:

Ever Notice?

has anyone ever noticed the a-typical narcissistic tendencies of “educational” institutions of “you MUST! KNOW! EV! ERY! THING! RIGHT! NOW!” and how if one does not recall–quick-enough, that they are discouraged, denigrated, rejected,…

and yet,..
as all should have well-experienced by now, that everyone educated, regardless of industry, has shelves, rooms, whole libraries FULL of BOOKS that they check when presented with something vaguely familiar that they are uncertain of.

What ought be tested is one’s ability to 1. understand what the problem is, and 2. then remember enough to refer to the appropriate resource, paper, log, database, book, etc. for the correct answer.

Guess their doctorates, certificates, et al. should be revoked if they happen to not know everything, RIGHT NOW!

GHB (profile) says:

This isn’t the first copyright subpoena against a fair user.

CallMeMoneyBags on twitter is at risk of a lawsuit and he/she didn’t file a counter notification:

Subpoenas as a form of DMCA weapon are increasingly becoming common. Now imagine that happens on youtube at scale.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

“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.”

Ummm one would hope that the courts take notice of this. Pretty sure its a violation of a whole buncha things & honestly in my twisted mind should result in a referral to the bar overseeing the asshat who thinks that its perfectly fine to subpoena anyone on the planet that may or may not have any information.

ProctorIO would shit themselves if a subpoena this broad was served on anyone they ever emailed. Pretty sure discovery would be lit as the kids like to say & many businesses would opt to no longer do business with them.
But hey if the court deems this subpoena valid, game on. Lets bury anyone who ever dealt with ProtorIO to in demands for communications, even if we have no idea if it might or might not have anything to do with the case.

Anonymous Coward says:

Give it to them...

Give it all to them, throw in the entire public domain works of books and world wide census data for the last 100 years.
Then encode it and encrypt it and send it to them.

Then give them the 256 byte encryption key – parted into 16 emails – for security.

Hopefully there are no viruses or CRC errors in the zip file.

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