Cory DoctorowApr 20, 2023

Yesterday, the BC Court of Appeals handed down a jaw-droppingly stupid and terrible decision, rejecting the whistleblower @Linkletter's claim that he was engaged in legitimate criticism when he linked to freely available materials from the ed-tech surveillance company #Proctorio:

https://www.bccourts.ca/jdb-txt/ca/23/01/2023BCCA0160.htm

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If you'd like an essay-formatted version of this thread to read/share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/04/20/links-arent-performances/#free-ian-linkletter

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Show threadCory DoctorowApr 20, 2023

It's been a minute since Linkletter's case, so I'll give you a little recap here. Proctorio is a massive, wildly profitable ed-tech company that sells a surveillance tool to monitor students while they take high-stakes tests from home. The tool monitors the student's computer and the student's face, especially their eye-movements. It also allows instructors and other personnel to watch the students and even take control of their computer. This is called "#RemoteInvigilation."

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Show threadCory DoctorowApr 20, 2023

This is ghastly in just about every way. For starters, Proctorio's facial monitoring software embeds the usual racist problems with machine-learning stuff, and struggles to recognize Black and brown faces. Black children sitting exams under Proctorio's gimlet eye have reported that the only way to satisfy Proctorio's digital phrenology system is to work with multiple high-powered lights shining directly in their faces.

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Show threadCory DoctorowApr 20, 2023

A Proctorio session typically begins with a student being forced to pan a webcam around their test-taking room. During lockdown, this meant that students who shared a room - for example, with a parent who worked night-shifts - would have to invade their family's privacy, and might be disqualified because they couldn't afford a place large enough to have private room in which to take their tests.

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Show threadCory DoctorowApr 20, 2023

Proctorio's tools also punish students for engaging in normal test-taking activity. Do you stare off into space when you're trying through a problem? *Bzzzt*. Do you read questions aloud to yourself under your breath when you're trying to understand their meanings? *Bzzzt*. Do you have IBS and need to go to the toilet? *Bzzzt*.

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Show threadCory Doctorow

The canon of remote invigilation horror stories is filled with accounts of students being forced to defecate themselves, or vomit down their shirts without turning their heads (because looking away is an automatically flagged offense).

The tragedy is that all of this is in service to the pedagogically bankrupt practice of high-stakes testing. Few pedagogists believe that the kind of exam that Proctorio seeks to recreate in students' homes has real assessment merit.

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Apr 20, 2023 at 12:32pmWeb
Show threadCory DoctorowApr 20, 2023

As the old saying goes, "Tests measure your ability to take tests." But Proctorio doesn't even measure your ability to take a test - it measures your ability to take a test with three bright lights shining directly on your face. Or while you are covered in your own feces and vomit. While you stare rigidly at a screen. While your tired mother who just worked 16 hours in a covid ward stands outside the door to your apartment.

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Show threadCory DoctorowApr 20, 2023

The lockdown could have been an opportunity to improve educational assessment. There is a rich panoply of techniques that educators can adopt that deliver a far better picture of students' learning, and work well for remote as well as in-person education. Instead, companies like Proctorio made vast fortunes, most of it from publicly funded institutions, by encouraging a worse-than-useless, discriminatory practice:

https://pluralistic.net/2021/06/24/proctor-ology/#miseducation

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Pluralistic: 24 Jun 2021 – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowApr 20, 2023

Proctorio clearly knows that its racket is brittle. Like any disaster profiteer, Proctorio will struggle to survive after the crisis passes and we awaken from our collective nightmare and ask ourselves why we were stampeded into using its terrible products. The company went to war against its critics.

In 2020, Proctorio CEO Mike Olsen doxed a child who complained about his company's software in a Reddit forum:

https://pluralistic.net/2020/07/01/bossware/#moral-exemplar

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Pluralistic: 01 Jul 2020 – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowApr 20, 2023

In 2021, the reviews for Proctorio's Chrome plugin all mysteriously vanished. Needless to say, these reviews - from students forced to use Proctorio's spyware - were *brutal*:

https://pluralistic.net/2021/09/04/hypervigilance/#radical-transparency

Proctorio claims that it protects "educational integrity," but its actions suggest a company far more concerned about the integrity of its own profits:

https://pluralistic.net/2022/02/16/unauthorized-paper/#cheating-anticheat

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Pluralistic: 04 Sep 2021 – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowApr 20, 2023

One of the critics that Proctorio attacked is Ian Linkletter. In 2020, Linkletter was a Learning Technology Specialist at #UBC's Faculty of Education. His job was to assess and support ed-tech tools, including Proctorio. In the course of that work, Linkletter reviewed Proctorio's training material for educators, which are a bonanza of mask-off materials that are palpably contemptuous of students, who are presumed to be cheaters.

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Show threadCory DoctorowApr 20, 2023

At the time, a debate over remote invigilation tools was raging through Canadian education circles, with students, teachers and parents fiercely arguing the merits and downsides of making surveillance the linchpin of assessment. Linkletter waded into this debate, tweeting a series of sharp criticisms of Proctorio. In these tweets, Linkletter linked to Proctorio's unlisted, but publicly available, Youtube videos.

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Show threadCory DoctorowApr 20, 2023

A note of explanation: Youtube videos can be flagged as "unlisted," which means they don't show up in searches. They can also be flagged as "private," which means you have to be on a list of authorized users to see them. Proctorio made its training videos unlisted, but they weren't private - they were visible to anyone who had a link to them.

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Show threadCory DoctorowApr 20, 2023

Proctorio *sued Linkletter* for this. They argued that he had breached a duty of confidentiality, and that linking to these videos was a *copyright violation*:

https://pluralistic.net/2020/10/17/proctorio-v-linkletter/#proctorio

This is a classic #SLAPP - a "strategic litigation against public participation." That's when a deep-pocketed, thin-skinned bully, like Proctorio, uses the threat of a long court battle to force their critics into silence.

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Pluralistic: 17 Oct 2020 – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowApr 20, 2023

They know they can't win their case, but that's not the victory they're seeking. They don't want to win the case, they want to win the argument, by silencing a critic who would otherwise be bankrupted by legal fees.

Getting SLAPPed is no fun. I've been there. Just this year, a billionaire financier tried to force me into silence by threatening me with a lawsuit. Thankfully, @Popehat was on the case.

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Show threadCory DoctorowApr 20, 2023

He reminded this billionaire's counsel that California has a strong anti-SLAPP law, and if Ken had to defend me in court, he could get a fortune in fees from the bully after he prevailed:

https://twitter.com/doctorow/status/1531684572479377409

British Columbia also has an anti-SLAPP law, but unlike California's anti-SLAPP, the law is relatively new and untested.

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Cory Doctorow (@[email protected]) on Twitter

“Earlier this year, a person disagreed with something I said on Twitter. They picked a fight with me about it I told them I thought they were wrong, and why, and that would have been the end of it if they hadn't threatened to sue me.”

Twitter
Show threadCory DoctorowApr 20, 2023

Still, the suit against Linkletter was such an obvious SLAPP that for many of us, it seemed likely that Linkletter would be able to defend himself from this American bully and its attempt to use Canada's courts to silence a Canadian educator.

For Linkletter to use Canada's anti-SLAPP law, he would have to prove that he was weighing in on a matter of public interest, and that Proctorio's copyright and confidentiality claims were nonsense, unlikely to prevail on their merits.

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Show threadCory DoctorowApr 20, 2023

If he could do that, he'd be able to get the case thrown out, without having to go through a lengthy, brutally expensive trial.

Incredibly, though, the lower court found against Linkletter. Naturally, Linkletter appealed. His "factotum" is a crystal clear document that sets out the serious errors of law and fact the lower court made:

https://drive.google.com/file/d/1aB1ztWDFr3MU6BsAMt6rWXOiXJ8sT3MY/view

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3. Appellant's Factum FILED 2022 07 27.pdf

Google Docs
Show threadCory DoctorowApr 20, 2023

But yesterday, the Court of Appeal *upheld* the lower court, repeating all of these gross errors and finding for Proctorio:

https://www.bccourts.ca/jdb-txt/ca/23/01/2023BCCA0160.htm

This judgment is *grotesque*. It makes a mockery of BC's anti-SLAPP statute, to say nothing of Canadian copyright and confidentiality law.

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Show threadCory DoctorowApr 20, 2023

For starters, it finds that publishing a link can be a "performance" of a copyrighted work, so when Linkletter linked to the world-viewable Youtube files that Proctorio had posted, he infringed on copyright.

This is a perverse, even surreal take on copyright. The court rejects Linkletter's argument that even Youtube's terms of service warned Proctorio that publishing world-viewable material on its site constituted permission for people to link to and watch that material.

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Show threadCory DoctorowApr 20, 2023

But what about #FairDealing (similar to #FairUse)? Linkletter argued that linking to a video that shows that Proctorio's assurances to parents and students about its products' benign nature were contradicted by the way it talked to educators was fair dealing. Fair dealing is a broad suite of limitations and exceptions to copyright for the purposes of commentary, criticism, study, satire, etc.

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Show threadCory DoctorowApr 20, 2023

So even if linking is a copyright infringement (ugh, seriously?!), surely it's fair dealing in this case. Proctorio was selling millions of dollars in software to public institutions, inflicting it on kids whose parents weren't getting the whole story. Linkletter used Proctorio's own words to rebut its assurances. What could be more fair dealing than that?

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Show threadCory DoctorowApr 20, 2023

Not so fast, the appeals panel says: they say that Linkletter could have made his case just as well without linking to Proctorio's materials. This is...bad. I mean, it's also *wrong*, but it's very *bad*, too. It's wrong because an argument about what a company intends *necessarily* has to draw upon the company's *own statements*.

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Show threadCory DoctorowApr 20, 2023

It's absurd to say that Linkletter's point would have been made equally well if he said "I disbelieve Proctorio's public assurances because I've seen seekrit documents" as it was when he was able to link to those documents so that people could see them for themselves.

But it's *bad* because it rips the heart out of the fair dealing exception for criticism.

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Show threadCory DoctorowApr 20, 2023

Publishing a link to a copyrighted work is the most minimal way to quote from it in a debate - Linkletter literally didn't reproduce a single word, not a single *letter*, from Proctorio's copyrighted works.

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Show threadCory DoctorowApr 20, 2023

If the court says, "Sure, you can quote from a work to criticize it, but only so much as you need to make your argument," and then says, "But also, simply referencing a work without quoting it *at all* is taking too much," then what reasonable person would *ever* try to rely on a fair dealing exemption for criticism?

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