Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

As discussed in , Human Rights Watch (HRW) released a in late May outlining the privacy risks school children face across the globe. After a short summary, the report immediately explores ways we can address the risks, through a comprehensive list of recommendations to governments, ministries and departments of education, education technology companies, advertising technology companies and other third-party companies that may receive data from EdTech Products.

Recommendations to the government, education technology companies, AdTech companies and other third-party companies receiving sensitive data all included urgent remedial action to address the children who have been exposed to the risk of misuse and exploitation – identify, remove, and prevent the further spread of children’s data. Governments were also specifically suggested to bear the responsibility of demanding AdTech companies delete all children’s data received from EdTech during the pandemic. Further recommendations also included law reform to adopt, update, strengthen, and hold accountable child data protection laws “to deliver a modern child data protection framework that protects the best interests of the child in complex online environments.”

Alarmingly, the report found that out of the 49 countries examined, 14 countries lacked any form of data protection whatsoever, while others merely referred to children or were outdated and did not address more modern technology. The do include a specific section on consent and children and the importance of adult supervision for data collection for children below the age of 13. However, Canada still falls behind in implementing modern privacy legislation that addresses child consent. For example, under the , businesses cannot sell personal information of children who are less than 13 years of age, unless the child’s parent or guardian affirmatively authorizes the sale. Moreover, sets the age of consent at 16, requiring parental consent from those 15 years old or younger. Section 15 in Canada’s Bill C-11 mandates that “an organization must obtain an individual’s valid consent for the collection, use or disclosure of the individual’s personal information,” but does not specifically address a minimum age for consent.

Additionally, the report provided recommendations for ministries and departments of education. These recommendations included monitoring endorsed educational services and the companies providing those services, as well as creating written contracts regarding children's data protection between institutions and EdTech providers — not with the child. Moreover, EdTech companies are advised to write their privacy policies in “clear, child-friendly, and age-appropriate language” and provide separate legal terms for guardians and educators.

With all this said, we perhaps should not be too eager to place all the blame on governments and companies. In its final segment, “Failure to Protect”, the report highlighted testimonies from parents and educators. This showed how students, parents and educators alike were all operating in blind faith during the pandemic. The exceptional situation of the pandemic made everyone too willing to accept and comply with quickly-changing environments – children trusted their parents, parents trusted the teachers, and teachers trusted their schools and their governments.

The report's recommendations highlight a collective responsibility in ensuring the safety of our children online. We are all responsible to remedy past wrongs and prevent further risks to our children by addressing modern technology’s most glaring privacy issues.

The post Your Child is Being Watched: EdTech and Children’s Privacy Part 2 appeared first on IPOsgoode.

Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

Pandemic-related school closures pushed the adoption of educational technology (“EdTech”) in classrooms to new heights. In fact, that the industry will surpass $377 billion by the year 2028. In response to the pandemic, Teachers across the globe were forced to adapt to online settings and were left scrambling for fun virtual tools to keep their children engaged in the classroom – but at what cost?

On May 25^th, Human Rights Watch (“HRW”) – “a global investigation of the education technology (EdTech) endorsed by 49 governments for children’s education during the pandemic.” A thorough analysis of the selected EdTech products showed that a vast majority of the government-endorsed online learning platforms risked children’s privacy and violated children’s rights. Many of the products were found to collect children’s personal information without the child’s or parent’s consent. This included data like “who they are, where they are, what they do in the classroom, who their family and friends are, and what kind of device their families could afford for them to use”– information unrelated to education.

The findings from the HRW also included , CBC Kids, Math Kids, ABRACADABRA, LEARN, Active for Life, Mathies, Prof Multi, Storyline Online and Storyweaver. Aside from LEARN, Math Kids, and Prof Multi, the other products were found to collect and transmit data, some via means of a third party. Notably, these platforms also all had government affiliation – all products were promoted by the Government of Quebec through “L’ecole ouverte,” a website that suggests digital education resources “approved by a team of experts from the Ministere de L’Education,” while “Mathies” was developed by Ontario’s Ministry of Education.

To illustrate how tracking technologies are so deeply integrated into children's lives, the report opens with a compelling story about a student named Rodin. Rodin logs onto his virtual classroom, draws on the virtual whiteboard during break time, and posts his homework using a social media platform— just like every other school day during the pandemic. However, what he doesn’t realize is the countless tracking technologies that surveil his online interactions by following him across the internet. Information about his browsing habits, location, and family contacts is passed along to advertising technology (“AdTech”) and other companies to eventually “piece together an intimate portrait” of him and to figure out what may influence him and make predictions about his future behaviour. These valuable insights can then be sold to other parties, who wish to target children just like Rodin in the future.

While they may impress us with their tech-savvy abilities, children are children. We cannot expect them to freely make decisions online and understand their full impact. Although parents are often willing to sacrifice whatever it takes to ensure their children’s safety, they have only limited control. The surveillance took place in virtual classrooms via various EdTech products where neither children nor their parents could object to it. With no proper protective measures in place, children around the world were left open to harm, all in the name of education. 

Part 2 will discuss the HRW report’s recommendations and the initiatives being taken to address the risks that EdTech poses to child privacy.

The post Your Child is Being Watched: EdTech and Children’s Privacy Part 1 appeared first on IPOsgoode.

Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School. 

To read part 1 of this article, click .

In September 2020, against former UBC employee and Open Education Librarian Ian Linkletter for tweeting  links to Proctorio's Help Centre YouTube videos for instructors and taking a screenshot of the website. In its lawsuit, Proctorio sought a declaration that Linkletter infringed its copyright, circumvented technological protection measures, and breached confidence. The company was also granted an interim injunction preventing Linkletter from sharing further links and videos from their websites.

Linkletter defended his actions, admitting to the tweets but denied copyright infringement or breached confidence. In his defence, he also identified the Proctorio lawsuit as part of a growing trend of "SLAPP" litigation — Strategic Lawsuits against Public Participation — intended to deter and ultimately silence outspoken critics and inhibit participation in public affairs.

On March 11, 2022, the decision was released, written by Justice Milman of the BC Supreme Court. The issues at stake were whether the action should be dismissed under s. 4 of the BC and if the injunction should remain in its present form.

Breach of Confidence

Section 4 of the PPPA states that the applicant may apply for a dismissal order on the basis that the proceeding arises from an expression made by the applicant, and that the expression relates to a matter of public interest. The leading case for interpreting this section is , where the first branch of the test requires an applicant to demonstrate on a balance of probabilities that the action arises from one's expression that "relates to a matter of public interest" (Pointes at para 23). If successful, the action must be dismissed unless the other party can demonstrate that (1) there are grounds to believe that the action has substantial merit; (2) the applicant has no valid defence; and (3) the harm suffered as a result of the expression is serious enough to outweigh the public interest protecting the expression.

Proctorio did not dispute the fact that the ongoing debate of the impact of its software was of public interest; rather, it focused on Linkletter's supposed malicious intent and sharing of confidential links. Milman J. was not persuaded on this point, stating that "[Linkletter] was using the content of the videos in an effort to illustrate his point about the harm that Proctorio's software was capable of causing to some students" (para 50).

Milman J. then proceeded to discuss the merits of Proctorio's case against Linkletter, assessing whether the tweets constituted a breach of confidence. On the one hand, he found that Proctorio's choice to host the help videos on a website such as YouTube over other secured options weakened the case that the information Linkletter tweeted out was confidential. However, he also considered that the unlisted videos were accessed through Proctorio's Help Centre, which Linkletter entered through the instructor sign-in portal and was thus subject to Proctorio's Terms of Service that restricts sharing. Milman J. found that Proctorio met its burden under s. 4(2)(a) of the PPPA to show there were grounds to believe that its claim for breach of confidence has substantial merit and that there are no valid defences to it (para 83).

Copyright Infringement and Fair Dealing

Proctorio, as a copyright owner under , argued that hyperlinking to the unlisted videos constituted an infringement of their copyright. Milman J. agreed, noting that the links were only accessible via the Help Centre for users logged in as accredited instructors or administrators. With regards to the tweeted screenshot, Linkletter successfully argued that the image was not "a substantial part" of the copyrighted work in which the Copyright Act's s. 3 protects.

Lastly, Milman J. discussed Linkletter's defence on the basis of fair dealing (s. 29 of the Copyright Act) and non-commercial user generated content (s. 29.21). Whether or not a dealing is "fair" depends on the purpose, character, and amount of the dealing, as well as possible alternatives, the nature of the work, and the effect of the dealing.

Milman J. accepted that Linkletter's real purpose in copying the links to his Twitter feed was to demonstrate his point about the harm he believed Proctorio's software was causing students, arising out of a genuine sense of public duty rather than malice (para 107). However, he was unable to conclude that it was necessary for Linkletter to share all the videos he did in order to make his point. He also found that Proctorio had a legitimate interest in keeping the instructional materials private only to instructors and administrators. In sharing the links, Milman J. found that Linkletter created a risk that Proctorio's product would be rendered less effective for its intended purpose (because students would be able to anticipate how instructors configured Proctorio's invigilation settings) and that its proprietary information would be made more readily available to competitors (para 112). These risks were found to be unlikely to materialize and mainly speculative.

The Status of the Injunction

Milman J. found that the injunction granted to Proctorio was granted in overly broad terms, and the injunction ought to have been framed more narrowly so that it prohibited "no more than the conduct [Milman J.] found to be properly actionable, namely, Mr. Linkletter's public sharing of materials posted on the Help Centre and Academy webpages, and encouraging others to do so" (para 145).

Conclusion

In summary, success for each party was divided. As of April 13, 2022, Although the resolution is still unclear, it is certain that this case — — has about the ethics of AI-powered invigilation methods worldwide.

Further Reading

Linkletter's defence and GoFundMe (donations closed):

The New 91��ɫer's deep-dive on online test-monitoring:

The Coronavirus pandemic and surge in demand for exam proctoring:

The post Proctorio v Linkletter - Part 2 appeared first on IPOsgoode.

Photo by Kaitlyn Baker ()

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School. 

With the emergence of the pandemic, schools across the globe had to rapidly shift to new testing mechanisms in line with stay-at-home lockdown orders. Remote invigilation and AI software seemed like the tools to support instructors and prevent cheating on exams that were suddenly shifted online. However, the rise of companies like were coupled with criticisms of fully-AI invigilation systems: and , , and and algorithms quickly came to the forefront. Various penned open letters and petitions hoping to curtail the use of invasive remote proctoring software that tracks eye movements, facial expressions, spatial information, and more. Part 1 of this article series will discuss the background information pertaining to , including how the lawsuit began.

On June 25, 2020 on the University of British Columbia (“UBC”) reddit forum, instead spiraled into a confrontation with the CEO of Proctorio, Mike Olsen. Under the username artfulhacker, Olsen responded to the criticisms of Proctorio by While the responses to Olsen are intact, Olsen’s reddit account has since been deleted, along with all his inflammatory comments.

. At the time, he was employed by UBC as a Learning Technology Specialist and Open Education Librarian. He had already been looking into Proctorio’s services when the incident occurred. He called Olsen out on Twitter and Reddit, . These were taken from Proctorio’s help website for instructors.

In September 2020, Proctorio for eight tweets of links to the unlisted videos and for posting a screenshot of the help website. Aligned with Linkletter’s belief in free speech and privacy concerns in the public interest, his entire defence can be found here.

Part 2 will look at the actual decision by Milman J. from March 25, 2022 and examine the comments on free speech and fair dealing for the purpose of criticism.

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