From Data Subjects to Data Suspects: Challenging E-Proctoring Systems as a University Practice

Journal of Intellectual Property, Information Technology and E-Commerce Law 14(2):2023 urn:nbn:de:0009-29-57378

29 Pages Posted: 12 Jul 2023

See all articles by Alexandra Giannopoulou

Alexandra Giannopoulou

University of Amsterdam - Institute for Information Law (IViR)

Rossana Ducato

School of Law, University of Aberdeen; Université Catholique de Louvain

Chiara Angiolini

Department of Law, University of Siena

Giulia Schneider

Sant'Anna School of Advanced Studies; Bocconi University, International Law and Economics, Students

Date Written: July 3, 2023

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.

Keywords: Anti-Discrimination, Data Protection, E-Proctoring, GDPR, Pandemic

Suggested Citation

Giannopoulou, Alexandra and Ducato, Rossana and Angiolini, Chiara and Schneider, Giulia, From Data Subjects to Data Suspects: Challenging E-Proctoring Systems as a University Practice (July 3, 2023). Journal of Intellectual Property, Information Technology and E-Commerce Law 14(2):2023 urn:nbn:de:0009-29-57378, Available at SSRN: https://ssrn.com/abstract=4498632

Alexandra Giannopoulou (Contact Author)

University of Amsterdam - Institute for Information Law (IViR) ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

Rossana Ducato

School of Law, University of Aberdeen ( email )

Taylor Building
King's College
Aberdeen, Scotland AB24 3UB
United Kingdom

Université Catholique de Louvain ( email )

Bruxelles, 1000
Belgium

HOME PAGE: http://www.rosels.eu/member/rossana-ducato/

Chiara Angiolini

Department of Law, University of Siena ( email )

via Mattioli 10
Siena, Siena 53100
Italy

Giulia Schneider

Sant'Anna School of Advanced Studies ( email )

Piazza dei Martiri della Libertà, 33
Pisa, 56127
Italy
3480369497 (Phone)

Bocconi University, International Law and Economics, Students ( email )

Milano
Italy

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