Respondus Hit with Privacy Class Action Over Collection of Illinois Test Takers’ Facial Features, Voices

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Months after updating its terms of use, Respondus, Inc. faces a proposed class action that alleges the company’s online exam proctoring software formerly did not comply with an Illinois privacy law before collecting students’ biometric information. 

The 24-page lawsuit alleges the defendants’ Respondus Monitor proctoring software, prior to when the company’s new terms of use took effect on January 21, 2021, did not make proper disclosures or obtain consent before capturing, storing or sharing test takers’ biometric identifiers, which include everything from students’ facial features to voices. Respondus’ previous failure to make proper disclosures and obtain consent before collecting students’ biometric identifiers amounts to a violation of the Illinois Biometric Information Privacy Act (BIPA), according to the complaint.

“Plaintiffs allege Respondus violated BIPA by, among other things, collecting, capturing, using, storing, and sharing Plaintiffs’ and class members’ biometric identifiers or biometric information without informed written consent,” the lawsuit alleges. “Respondus violated BIPA’s requirement that it maintain, disclose, and follow a retention policy that requires Respondus to permanently destroy students’ biometric data once the purpose for collecting such data has been satisfied.”

The suit scathes that while Respondus prides itself as a “pioneer of online testing applications,” the company’s software, which has spiked in use given the prevalence of remote test-taking amid the pandemic, serves as no more than a sophisticated digital surveillance tool for third parties, such as schools, who wish to monitor high school and college test takers. The defendant’s flagship tool, the Respondus Monitor, “captures, uses, and stores vast amounts of data, including facial recognition data, facial detection data, recorded patterns of keystrokes, eye monitoring data, gaze monitoring data, and camera and microphone recordings” as a means to keep tabs on students taking online exams at home, according to the lawsuit. 

Per the suit, students generally have no choice but to use Respondus Monitor if it’s the tool their academic institution has selected to automatically proctor tests. The case says “virtually all” students required to use Respondus’ proctoring system download the software on their personal devices. 

Given the amount of biometric information Respondus obtains from users, the proctoring software “has the ability to collect and aggregate information on all aspects of a student’s life,” the suit claims, noting academic professionals have described the tool as akin to “spyware” and incorporating an inappropriate “level of intrusion.” Prior to updating its terms of use in January, Respondus, the complaint alleges, left students in the dark about the “vast amount” of information it collects and for how long that data will be stored, as well as with whom it might be shared: 

“The ‘recordings and data’ that may be accessed by agents of the Institution include students’ biometric identifiers and biometric information, but, prior to January 21, 2021, that fact was not disclosed in the Monitor Privacy Policy. 

The Monitor Privacy Policy states that samples of de-identified student video recordings may be shared with researchers, including biometric experts.

However, prior to January 21, 2021, the Monitor Privacy Policy did not disclose that, prior to sending student video recordings to experts for research purposes, Respondus already captured the students’ biometric information or biometric identifiers from these recordings.

The Monitor Privacy Policy does not disclose that Respondus shares biometric identifiers and biometric information with Amazon Web Services.”

As its prevalence has increased amid the pandemic when many schools were forced to shift to online learning, the Respondus Monitor software has drawn criticism from students and faculty nationwide and is the subject of at least two other proposed class action cases that allege those forced to use the software while taking exams have been exposed to potentially irreparable privacy harms, identity theft or other problems arising from the capture and storage of their biometric data. 

The lawsuit aims to represent anyone who took an assessment using Respondus Monitor in Illinois at any time within the last five years until January 20, 2021. 

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