proctorio used dmca to take down a student’s critical tweets

Tweets from a Miami University student offering criticism of a proctoring software firm have been taken down by Twitter following a copyright takedown request submitted by the company.

Erik Johnson, a student who also works as a security researcher, published an extensive thread of tweets in early September concerning Proctorio, a software company headquartered in Arizona that is utilized by numerous U.S. educational institutions – including his own – to oversee students during remote examinations.

However, after six weeks, Johnson received notification from Twitter that three of his tweets had been removed from his account in response to a request from Proctorio, filed under the provisions of the Digital Millennium Copyright Act.

The use of proctoring software is not a recent development, but its prevalence has significantly increased due to the current pandemic. With a greater number of students now completing exams and tests from home, colleges and universities are increasingly dependent on proctoring software to administer these assessments. Students are typically required to install the software selected by their university, which grants the exam administrator substantial access to the student’s computer, frequently encompassing webcams and microphones, to monitor activity for potential instances of cheating.

Nevertheless, students have voiced concerns regarding issues with proctoring software. According to a report by Vice, students have expressed complaints that the software struggles to accurately recognize darker skin tones, and others have noted that the software necessitates a high-speed internet connection, which is not available in many low-income households.

Experiencing issues with any of these checks, whether the student is aware of them or not, can potentially lead to a failing grade on the test.

Thousands of students at schools in Washington and Florida have already submitted petitions to their institutions requesting they discontinue the use of proctoring software – including Proctorio – due to concerns about privacy and security risks.

Proctorio, which is located in Scottsdale, Arizona, asserts that its proctoring software is designed with privacy in mind. Students are required to install its Chrome extension prior to taking a test, which the company states students can uninstall once the test is completed.

In contrast to desktop software, the majority of Chrome extensions are easily downloadable and allow users to view and analyze their source code. Johnson undertook this process and shared his observations via Twitter. Three of his tweets detailed the conditions under which Proctorio would “end” a student’s exam if it identified indications of possible cheating – such as a student “changing networks” or the detection of “irregular clicking” and “eye movements.” The tweets also included a link to excerpts of code from Proctorio’s Chrome extension, which Johnson posted on the code-sharing platform Pastebin.

These three tweets are currently inaccessible on Twitter as a result of Proctorio’s takedown notices. The code shared on Pastebin is also no longer available, and a copy of the page is not accessible through the Internet Archive’s Wayback Machine, which indicated that the web address had been “excluded.”

A Twitter spokesperson informed TechCrunch: “In accordance with our copyright policy, we respond to legitimate copyright claims submitted to us by a copyright holder or their authorized representatives.”

Johnson provided TechCrunch with a copy of the takedown notice sent by Twitter, which identified Proctorio’s marketing director John Devoy as the individual who requested the takedown on behalf of Proctorio’s chief executive Mike Olsen, who is listed as the copyright owner.

Olsen has previously faced criticism. Earlier this year, he sparked controversy after publishing private support chat logs from a student, which he subsequently deleted and made his Twitter account private following the incident. Proctorio is also currently pursuing legal action against security researcher Ian Linkletter, a learning technology specialist at the University of British Columbia, after he posted critical comments about the company’s software.

When contacted by phone, Olsen stated that Miami University had accepted the company’s terms and conditions on Johnson’s behalf, and that Johnson allegedly breached those terms by tweeting about the code.

Following the phone call, Proctorio issued a statement to TechCrunch through its crisis communications firm Edelman, asserting that Johnson “violated Proctorio’s exclusive rights by copying and posting excerpts from Proctorio’s software code on his Twitter account,” and that Proctorio subsequently filed the DMCA takedown request “to request that the content be removed, and Twitter removed it.”

“Mr. Johnson’s assertion that he has the right to reproduce the code because he was able to download it is simply inaccurate. Regardless of his ability to download the files, they remain protected under the Copyright Act. Furthermore, had Mr. Johnson examined the files he downloaded, he would have observed the numerous copyright notices in the header of each file explicitly stating that the code is owned by Proctorio and that ‘unauthorized reproduction, display, modification, or distribution of this software, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the full extent permitted by law.’ His reproduction of that code violated Proctorio’s rights, which is why Proctorio asked Twitter to remove it,” explained Andy Lutzky, senior vice president at Edelman, on behalf of Proctorio.

With assistance from the nonprofit internet rights group the Electronic Frontier Foundation, Johnson has now submitted a counter notice to challenge the takedown.

“This is a classic illustration of fair use,” stated Cara Gagliano, staff attorney at EFF. “What Erik did – posting excerpts of Proctorio’s code to highlight the software features he was critiquing – is comparable to quoting a book in a book review. The fact that it’s code rather than literature does not diminish the fairness of the use.”

“Employing DMCA notices to suppress legitimate fair uses like Erik’s is entirely inappropriate and constitutes an abuse of the takedown process,” Gagliano added. “DMCA notices should only be submitted when a copyright owner has a genuine belief that the challenged material infringes upon their copyrighted work – which necessitates the copyright owner considering fair use before sending the notice.”

“The application of fair use is unambiguous in this case, and this notice should not have been sent,” she said.

Update: Shortly after publication, Johnson tweeted that Twitter had reinstated his tweets after determining that Proctorio’s takedown notice was “incomplete.” His complete, restored tweet thread can be found here.

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