A federal judge has rejected Resurrection University’s attempt to nullify a class action lawsuit accusing it of violating the biometric privacy rights of students through online exam proctoring.
U.S. District Judge Mary Rowland issued an opinion Aug. 29 rejecting the school’s request to dismiss a complaint from Brittany Harvey, a student at the Chicago university. According to court document, Resurrection contracted with online exam proctoring vendor Respondus to offer online quizzes and tests after the university moved classes online at the onset of the Covid-19 pandemic.
Like other online exam proctors, Respondus sits at the center of similar legal action, a consolidated class action complaint accusing the company of violating the Illinois Biometric Information Privacy Act in the way its test-taking program scanned the faces of students to ensure they weren’t cheating.
Respondus Monitor, and similar proctoring programs, typically work by first locking down a computer to allow students to interact only with the exam while they are taking the test. Then, the product uses the computer’s camera and microphone to confirm the student’s identity, in part by scanning the student’s face. The program then monitors the student’s face and eyes throughout the exam to ensure they are not receiving help from off camera.
In her complaint, Harvey said she has taken numerous Resurrection classes using Respondus, but when she agreed to use the software she didn’t know it would collect and analyze her biometric information. She accused Resurrection of violating BIPA by improperly collecting capturing and storing personal data, failing to collect student consent, profiting from requiring students to use Respondus and improperly disseminating the information to third parties, including Amazon Web Services. Central to the complaint is the allegation Respondus didn’t change its student use acceptance form to disclose the use of facial recognition technology until Jan. 21, 2021.
Resurrection removed Harvey’s complaint to federal court and asked Judge Rowland for dismissal on the grounds Title V of the 1999 Gramm-Leach-Bliely Act holds financial institutions are exempt from BIPA litigation.
Rowland first clarified that, although neither party had invoked the question of standing, Harvey’s allegations satisfy the requirements for only part of her complaint to belong in federal court. As such, she severed and sent back to state court the portions of the complaint containing allegations regarding Resurrection’s lack of a data “retention schedule or destruction guideline” as well as those regarding profit.
Although Harvey said the school saves money by using Respondus compared to paying in-person monitors, Rowland said the complaint lacks “allegations about how Harvey was personally affected by Resurrections’ alleged profiting.”
Turning to Resurrection’s Title V argument, Rowland notes BIPA doesn’t define the term “financial institution” but did point out the Federal Trade Commission’s rules consider schools governed by that law when “such institutions appear to be significantly engaged in lending funds to consumers.”
Rowland pointed to several examples of similar questions posed to district courts and said she agrees schools like Resurrection can qualify as financial institutions under Title V. She rejected Harvey’s position that universities complying with the Federal Educational Rights and Privacy Act are fully exempt from the GLBA — which has its own privacy dictates — and said Harvey’s contention that collecting students’ biometric data isn’t a financial transaction doesn’t negate the financial institution exemption.
However, despite finding the BIPA exemption “applies to institutions of higher education that are significantly engaged in financial activities,” Rowland wrote she “declines to find at this stage that Resurrection does in fact qualify for this exemption” because that is a question of fact, and denied its motion to dismiss.
The plaintiffs are represented in the case by attorneys Samuel J. Strauss, Mary C. Turke and Raina C. Borrelli, of the firm of Turke & Strauss, of Madison, Wisconsin.
Resurrection is represented by attorney Michael D. Hayes, of Husch Blackwell, of Chicago.