INTRODUCTION

COVID 19 has brought an unprecedented challenge that has transformed our life and society like
never before. There has been a tectonic shift to our mundane existence which has transformed
many aspects of our life and education is one of the prominent ones that has gone through a sea
change. Millions of children across the globe have been shut out of their classrooms for almost
an entire year[1] and one of the many changes spawned by the pandemic is an immediate
worldwide transition to the ubiquitous use of e-learning, from frontal teaching in classrooms to
numerous video teleconferencing platforms like zoom and google meet.
While virtual learning has helped in maintaining continuity in education, online examinations
have raised some serious concerns about their efficacy and fairness. The paramount need to
maintain ‘academic integrity’[2] during online exams has compelled educational institutions to
use proctoring platforms to prevent the scope of cheating in examinations.
ONLINE PROCTORING AND THE PRIVACY CONCERNS
The proctoring platforms use a combination of artificial intelligence and live human invigilators
to detect facial and eye movements, background noises, monitor screen shifts, etc. Online
proctored exams were conducted even before the pandemic struck but since the start of the
pandemic and this new ‘tele- everything’ world, the dependence on online proctoring has risen
manifold to ensure the examinee’s competence and is being used to conduct multiple entrance
tests and internal exams by educational institutions. These proctoring platforms often ask the
students to scan their whole room and record their audio, video, and desktop screens. They
even collect sensitive personal data of candidates like biometrics including full name, phone
number, scans of identity proof, and student ID numbers to enable identification and
authentication of candidates when they login for the exams and store it without specifying the
data retention period.[3] The data is further transferred to the educational institutions for
review and can be accessed by multiple people without the consent of the candidates.
Recent incidents regarding the breach of privacy of students during the online proctored exams
have raised some serious apprehensions about their safety. In an appalling incident of early
January this year, some female students of a reputed college in Mumbai, alleged harassment by
their online proctor during the exam. One of the proctors reportedly cyberstalked the female
students and texted them multiple times on WhatsApp and other social media platforms during
and after the exam. The screenshots of the screens with the photos of the students were saved
on the proctor’s desktop.[4]
These proctors who ‘watch’ the students through their webcams during the exam are given
access to all their personal details and are often hired without any background checks. Another
such incident of misconduct was reported from the prestigious University in Bengaluru where
the students were repeatedly asked to adjust their webcams and lower the camera angles to
inappropriate positions during the exam and a proctor referred to a female student as ‘baby’ in
response to a query about the examination.[5] These are but two of the many instances where
the students’ privacy has been breached during the online proctored exams.
LEGAL DISCOURSE ON THE ISSUE
Since the glorious discourse of natural rights which has been celebrated globally over the past
centuries and the phenomenon of protection of human rights and fundamental rights has
always been the imperative obligation in all democracies. It is often argued that privacy is not
just a safety frame but is integral to the enjoyment of freedom by humanity. “Right to privacy is
a fundamental right” enshrined in the Constitutions of various countries across the globe,
including under Article 21 of the Constitution of India as was unanimously recognized by the
Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India.[6] It constitutes an integral part of
the right to life as privacy is one of the essential elements for a dignified life. This fundamental
right is multifaceted and data privacy is essential to the survival of the social and personal
identity of all human beings. Additionally, India is a part of the ‘International Covenant on Civil
and Political Rights’ (ICCPR) by which it is bound to take affirmative actions towards ensuring the
privacy of its citizens. But considering the current state of affairs in times of the pandemic,
online proctoring is an inevitable threat to privacy.
Whenever an issue of privacy arises, voluntary and well-informed consent plays a pertinent role.
An individual might not be comfortable with the continuous access of his personal details. He
effectively chooses what information he wants to share and with whom. No individual could
access the private information of another without proper consent.
Undeniably, online proctoring poses a major threat to the consent of the individual. A student
while giving proctored tests has to download third-party intermediary software which is to be
given compulsory access to the data stored in the device in order to make the software function
along with keeping their webcams on during the entire duration of the exam to enable human
proctors and AI bots to monitor their body language and surroundings. This access to data is a
clear intrusion into the personal space of an individual. The said software stores personal and
contact information and biometric records of the candidate. Such information constitutes
sensitive data which if retained, leaked, or misused could result in identity theft, fraud, and
profiling. In addition to that, the information may be misused or sold by third-party
intermediaries to make profits. In another incident, in January a student alleged that his Aadhar
number was used to apply for a loan from a cooperative bank by one of the proctors.
Section 43A of the Information Technology Act, 2000[7] penalizes the body corporate who
possess the sensitive personal information and is negligent in handling such information or uses
such information for causing wrongful profit or loss. Despite that, these intermediaries find
leeway in the law and are exempted from liability in case of any leak of data under Section 79 of
the Information Technology Act, 2000[8] which exempts the intermediary from liability in
certain cases for any third party information, data or communication link made available or
hosted by him, posing a clear threat to the privacy of an individual.
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal
Data or Information) Rules, 2011[9] classifies personal sensitive information as passwords,
financial information, sexual orientation, medical records, and biometric information.
[10] Biometric information, being sensitive personal data should not be assessed by third-party
intermediaries. Even the Personal Data Protection Bill, 2019[11] aims at protecting the personal
data of the citizens in the country.
CONCLUSION
To ensure the privacy, it is important that limits should be set to prevent intermediary platforms
from assessing the device data as well as voice notes and other biometric information.
Moreover, the time period for storing data need to be set. The intermediaries should be bound
to delete the personal data of students after the completion of the objective for which it was
stored. It should be the express responsibility of the proctoring platform to keep the data of
students secure and not use it for exploitation, cold calling, or any other manner whatsoever. It
should be ensured that the data is not shared with any other third parties for any purposes not
pertaining or otherwise except for conducting the online examinations.
To sum up, online proctored exams cannot be a viable alternative to offline exams. Apart from
the exigent privacy concerns, many practical reasons like lack of internet connectivity, limited
access to mobiles and laptops, technical glitches make them ominous. Open book exams on the
other hand promote closer understanding and critical analysis of concepts and complex problem
solving instead of rote learning.