Legal Implications of Using AI as an Exam Invigilator

Abstract

This article considers the legal implications of the use of remote proctoring using artificial intelligence (AI) to monitor online exams and, in particular, to validate students’ identities and to flag suspicious activities during the exam to discourage academic misconduct like plagiarism, unauthorized collaboration and sharing of test questions or answers. The emphasis is on AI-based facial recognition technologies (FRT) that can be used during the authentication process for remote users during the online exam process as well as to identify dubious behavior throughout the examination. The central question explored is whether these systems are necessary and lawful based on European human rights law.

The first part of the paper explores the use of AI-based remote proctoring technologies in higher education, both from the institutional perspectiv9e as well as from the student perspective. It emphasizes how universities are shifting from a reliance on systems that include human oversight, like proctors overseeing the examinations from remote locations, towards more algorithmically driven practices that rely on processing biometric data. The second part of the paper examines how the use of AI-based remote proctoring technologies in higher education impacts the fundamental rights of students, focusing on the fundamental rights to privacy, data protection, and non-discrimination. Next, it provides a brief overview of the legal frameworks that exists to limit the use of this technology. Finally, the paper closely examines the issue of legality of processing in an effort to unpack and understand the complex legal and ethical issues that arise in this context.