Class Action Accuses ExamSoft of Illinois Privacy Law Violations for Law School, Med School, Bar Exam-Takers

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A proposed class action looks to represent certain Illinois law and med school students and state bar exam-takers who’ve used ExamSoft Worldwide’s biometric information-collecting online proctoring software. 

The 19-page case alleges ExamSoft has run afoul of the Illinois Biometric Information Privacy Act (BIPA) by collecting, storing and using online test-takers’ biometric identifiers, such as eye movements and facial expressions, without first relaying statutory data retention and destruction policies and providing details on the specific purpose and length of term for which the information will be stored as required by law. 

The lawsuit, filed by three plaintiffs in Cook County Circuit Court on March 17 and removed to the Illinois Northern District Court on April 22, looks to represent a class that includes all Illinois residents who used ExamSoft to take an exam online and who had their facial geometry or other biometric information collected, captured, received or otherwise obtained and/or stored by the defendant. Additionally, the case looks to cover “subclasses” of online test-takers in the state who: 

• Took the October 2020 Illinois Bar Exam and had their facial geometry collected, captured, received or otherwise obtained and/or stored by ExamSoft;
• Are/were students at John Marshall Law School in Chicago and took an online exam between August 2017 and August 2019 and had their facial geometry collected, captured, received or otherwise obtained and/or stored by ExamSoft;
• Are/were students at the UIC John Marshall Law School who took an online exam between August 2019 and May 2020 and fit the foregoing facial geometry collection and storage criteria; and
• Are/were students at the St. George School of Medicine who took an online exam between March 2020 and December 2020 and who fit the foregoing facial geometry collection and storage criteria.

According to the complaint, ExamSoft monitors students during a test by collecting and monitoring their facial geometries while capturing continuous audio and video. Per the suit, ExamSoft utilizes an artificial intelligence system to analyze the audio and video recordings and identify any abnormalities in a student’s behavior based on “movement, gaze, and background noise” once an exam is uploaded:

“For instance, if a student looks down from their computer screen into their lap (e.g., because a student is looking up an answer on her or her [sic] phone), ExamSoft will detect this facial movement and record it as a possible instance of cheating.” 

As the lawsuit tells it, ExamSoft has been in “the crosshairs” of an ongoing debate surrounding the use of biometric identifier-collecting online exam proctoring software, the use of which has skyrocketed as a result of the COVID-19 pandemic. Last December, ExamSoft received a letter from six U.S. senators over student and professional privacy concerns, with the senators observing that “questions remain about where and how this data is being used before, during, and after tests, both by your company, the virtual proctors, and testing administrators,” according to the complaint. 

Echoing the senators’ concerns, the California Supreme Court, the lawsuit says, expressed trepidation with regard to ExamSoft’s privacy policy, which the court said fails to adequately relay how long the defendant will remain in possession of exam-takers’ biometric data and the time limits for retaining such.

“Upon information and belief, ExamSoft continues to retain Plaintiffs’ biometrics beyond the intended purpose for collection,” the plaintiffs claim.

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