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Law360 (April 5, 2021, 10:59 PM EDT) -- Respondus Inc. got hit in federal court Friday with yet another lawsuit claiming the online testing company's automated proctoring program collects and uses Illinois test-takers' biometric data without first obtaining their informed consent.
Illinois student Phillip Bridges and recent college graduate Cheng Wu claimed in their suit that Respondus has violated the Biometric Information Privacy Act by failing to explicitly disclose that the company's remote proctoring tool Respondus Monitor scans, collects and uses test-takers' facial geometry and other biometric identifiers while they're taking an exam on its platform.
Respondus prides itself as a software company that has served as a pioneer of online test-taking applications for nearly 20 years, according to the students' suit. But in reality, the company simply "provides sophisticated digital surveillance technologies to third parties, such as schools, that wish to monitor college and high school students during academic assessments," they claimed.
Respondus was first hit with BIPA claims over Respondus Monitor in November by a proposed class of Lewis University students. Then, in early March, a group of DePaul University students hit the company with their own claims that they were unlawfully left in the dark about whether and how the company collected and used their biometric data.
While online coursework and exams have long been offered online, many colleges and other institutions were forced to turn to companies such as Respondus during the COVID-19 pandemic to continue administering assignments and tests, according to Bridges and Wu's suit.
Respondus Monitor allows students to take tests in a nonproctored environment by using facial detection software to keep track of the student and his or her environment, according to the suit. The company boasts on its website and in its marketing that its program uses facial recognition technology to determine if the person who started taking a test "switches to a different person along the way," the suit said.
Students using Respondus' program must accept its use terms before proceeding, but nothing in those terms explicitly disclose the company's policies and practices regarding biometric data collection, Bridges and Wu said.
For example, the company's terms say Respondus will audibly and visually record an exam session, but they didn't say the company will use facial recognition technology to capture, analyze and disseminate students' biometric information, they claimed. Instead, the terms "cryptically" mention that Respondus will collect "other data" related to student activity during the exam, they said.
The terms also say that Respondus may analyze its recordings to generate "additional data" associated with the students, the students claimed. That "additional data" included students' biometric information, but that was never made clear before Jan. 21, when the company updated its use terms for students, they alleged.
The terms also say that Respondus Monitor saves all student recordings for a year while their respective institutions "have the ability to retain data" for another four years, according to the suit. The data those institutions could retain includes their students' biometric information, but Respondus' use terms didn't make that clear before their update, the suit said.
Respondus' privacy policy is equally vague, unlawfully and broadly referring to "recordings and data" that institutions' administrators can access through its Monitor tool, the students claimed.
Bridges, who's currently studying at Resurrection University in Chicago, has used Respondus Monitor more than 20 times, and at least 10 times since January. Wu, who graduated from the Illinois Institute of Technology in the fall, took an exam through the remote proctoring platform at least six times, according to the suit.
The students allege similar experiences in taking their exams, first having to take video footage of their surroundings and their faces before being able to start their tests. But when performing those pre-test procedures and agreeing to Respondus' terms, they didn't give the company informed consent to collect, store and use their biometric information, they claimed.
Bridges and Wu are looking to represent a class of similarly situated individuals who took an assessment using Respondus Monitor within the last five years before the company updated its student use terms. They're asking the court to award them and the proposed class statutory damages of $1,000 for every negligent BIPA violation and $5,000 for every willful violation.
Bridges and Wu are represented by Brian Murphy and Jonathan Misny of Murray Murphy Moul & Basil LLP, Samuel Strauss and Mary Turke of Turke & Strauss LLP, Anthony Paronich of Paronich Law PC and Lauren Urban.
Counsel information for Respondus couldn't immediately be determined Monday.
The case is Bridges et al. v. Respondus Inc., case number 1:21-cv-01785, in the U.S. District Court for the Northern District of Illinois.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
