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"Can ProctorU Be Trusted With Students' Personal Data?"

An interesting post by Paul Alan Levy (Public Citizen) on a demand letter ProctorU sent to UCSB.

|The Volokh Conspiracy |

See here for more; here's an excerpt:

The saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw—in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data…. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using "any other private service that either sells or makes students' data available to third parties." The letter was discussed in a story in the school's student newspaper.

It is apparently ProctorU's position that the faculty association's concerns are overwrought. I have no opinion about that dispute.

But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU's web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of wilfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic….

You can read the demand letter itself here.

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17 responses to “"Can ProctorU Be Trusted With Students' Personal Data?"

  1. I’m sure there were a couple billable hours in there which, in this time of work shortages due to corona, are certain to be valuable to Attorney Blistering Invective.

    More to the point, is the university so darned cheap that it won’t have faculty proctor their exams? Or is this a function of doing everything online such that specialists are needed to see if there’s cheating going on?

    1. Well, yeah, right now the goal is to do close to everything online. And, yes, it does take some specialized expertise to detect and deter cheating – expertise that the average college professor is unlikely to possess.

  2. Sounds like an admission the concerns are warranted.

    1. The more I think about this, the carbon copy to the State AG might come back to haunt him. A good AG would refer this to the Consumer Protection division, and someone there might come to the same conclusion…

  3. Four thoughts.
    1: Disgusting things like this happen in higher education a lot more often than people realize, and spineless administrators more often than not pander to these bullying attorneys. Look at the carbon copy list — to the US Attorney?!? Why is this her(?) problem? That’s intimidation, nothing less.

    2: It’d never happen, but I’d love to see either the US Attorney or the CA AG refer this to ED’s FERPA Compliance Office and ask for an advisory ruling relative to the issues that the union raised about student privacy. That’d blow up big time in the face of one bullying attorney because they’d say that FERPA applies, and you can’t sell student data.

    3: I contrast to the Top Chef extortion trial where it was ruled that Federal law carved out vast exceptions for what a union may do in a job action. In this case, the Teamsters “were accused by the Top Chef cast and production crew of shouting racial and homophobic slurs at the cast and crew, slashing tires, damaging equipment, and using physical violence outside Milton restaurant Steel & Rye in 2014.” See: https://boston.cbslocal.com/2017/08/15/top-chef-trial-verdict-extortion-teamsters-local-25-padma-lakshmi/

    Yes, different circumstances, but threats to murder versus what this union did. Wow…

    4: Not mentioned here are the students — the university can not unilaterally re-write the contract and force them to surrender this private information to a private company. I’d refuse to.
    My position would be that I paid for an exam to be administered by a university employee, and damn it, that’s what you are going to provide me. Next month, next year, whenever — you are obligated to provide me that (or refund my tuition dollars).

    FERPA is such that you can’t post exam grades with social security numbers anymore, yet you can give them to a private company to sell? Wow… (Paging US Dept of Education, Paging US Dept of Education…)

    No. Not even in an emergency.

    1. Here is ED on FERPA:
      https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

      NB: The US Dept of Education is ED because the US Department of Energy came first, and hence they get to be called DoE.

  4. Invoking a federal prosecutor in an attempt to arrange a commercial benefit for a client was an apt grace note. In my jurisdiction that could arrange a trip to the disciplinary board.

    This letter might explain why I had never heard of this large law firm from the Deep South.

  5. This story reminds me of the Theranos whistle-blowers who received threatening letters from the famous attorney David Boies.

    What does legal ethics say about attorneys who send threatening but baseless letters designed only to intimidate and scare? It seems to me akin to protection rackets where one hires thugs to threaten victims to pay protection money. But it’s almost normal behavior. There may be a time when all of us want to hire an attorney to send a bogus threatening letter on our behalf.

    With governments going berserk with civil forfeiture (highway robbery), attorneys sending phony letters (protection rackets), and judges ruling because of partisan bias, it should not be surprising if citizens loose respect for the rule of law.

    1. Legal ethics asks, “Did the check clear?”

    2. “What does legal ethics say”

      Dead men tell no tales.

  6. Great customer relations strategy you got there, ProctorU. Way to really bring in the sales.

  7. Whereas before the faculty only had suspicions, now they have concrete evidence, this letter, explaining why the university needs to drop ProctorU like a hot potato if it doesn’t want to tangle itself in a web of litigation with a company that has stated its interests clearly and expressed no interest In protecting students’ privacy. If the company runs off with or sells the students records, the University may well be liable for it.

    I would consider a reply to ProctorU’s counsel thanking him for explaining why working with ProctorU will inevitably lead to a thicket of litigation and for clarifying why, if the University wishes to avoid further liability, it would be in the University’s best interests to drop the relationship.

    1. It’s not just liability — FERPA compliance is a condition of receipt of Federal monies (including their students receiving Federal FinAid). While it’s never happened (yet), the ultimate threat to IHEs is the elimination of this money.

  8. Eugene,
    Is it your impression (or experience) that using what I’ll call “agressive CC’ing” is effective. I know we’re hardly a representative sample, but the earlier comment show that a lot of us were struck by who was CC’d.

    In my own practice; I make it a custom to CC ‘Galactic President Superstar McAwesomeville’ [hat-tip: HIMYM] on all my correspondence with opposing counsel . . . but those other lawyers have seemed remarkably unimpressed by the swanky company I keep.

    1. 1. question mark after first sentence
      2. comments, not the singular comment.

      [sigh, yet again]

  9. ProctorU is a wonderful company, and every college and university in the world should use it.

    And its personal hygiene is absolutely above reproach.

  10. Practice tip: don’t use a form trademark infringement letter for anything beyond trademark infringement.

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