BY HANK REICHMAN

Regular readers of this blog may recall that on March 14 I posted an entry entitled “Online Proctoring and Student Privacy Rights at UCSB.”  That post reproduced a letter from the University of California at Santa Barbara Faculty Association (UCSBFA) to campus administrators raising concerns that ProctorU, an online test monitoring service that UC was considering using as it moved classes online, shared student data with others.  I removed the post several days ago after UCSBFA leadership shared with me a hectoring “cease and desist” letter they had received from an attorney representing the firm.  My Santa Barbara colleagues were certain they had done nothing wrong.  The letter accused them of alleging that ProctorU sells student data, but the letter made no such claim.  That was a misinterpretation of the letter found in the campus newspaper; the letter referred only to the sharing of data.  In addition, it turns out that after the letter was sent the firm changed the wording of its online privacy policy and the attorney then appealed to that revised version as “proof” that UCSBFA had falsified its claims.  Nevertheless, my colleagues feared being drawn into a lengthy and expensive legal battle and were concerned that AAUP should not also be drawn in.  (Neither I nor the AAUP staff have received any communication from ProctorU or its attorney.)  Hence my quiet removal of the post.

Now, however, I’m happy to report that UCSBFA has gained a powerful voice in their defense.  Attorney Paul Levy, who litigates free speech issues at Public Citizen, on Wednesday posted a vigorous critique of ProctorU’s letter.  It’s well worth reading in its entirety, but here are a few choice excerpts:

One of the hard lessons that I have learned over my years of practice is that, although some lawyers believe that they can increase the in terrorem effect of a complaint or a demand letter by piling on claims, the net effect of adding silly assertions can be to make things worse for your own client and not better.  That may be true as well of the demand letter recently sent by David Vance Lucas of Bradley Arant Boult Cummings on behalf of their client, ProctorU. . . .

It is apparently ProctorU’s position that the faculty association’s concerns are overwrought. I have no opinion about that dispute. But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU’s web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of wilfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic. Without quite meeting the faculty criticisms, the letter provided a restatement of the ProctorU privacy policy from a sanitized perspective, and on that basis demanded that the faculty group stop its “misrepresentation and misstatement” of the privacy policies; retract the complaints; and agree never to use ProctorU’s “family of marks and copyrighted materials.” In subsequent correspondence, Lucas has demanded that each member of the faculty group’s board sign a groveling letter in which they would have to take personal responsibility for the group’s criticisms, admit that many of statements for which they would be taking personal responsibility were false, endorse Lucas’ unproven assertions about his client’s privacy practices, and retract both the letter and the request that USCB stop using its services.  It is my firm belief that Lucas’s letter and followup emails, and especially the demanded retraction letter, had the intended effect of terrifying the faculty group, if only because they know how much it can cost to hire lawyers even when you have done nothing wrong  — until they started hearing that pro bono representation could be a significant possibility.

My immediate reaction to this letter was to feel uncertain about whether ProctorU had any valid defamation claims, but my attention was drawn quickly to the contentions about federal intellectual property law, all of which are nonsensical.

First, the copyright claims. Lucas argues that by repeating some of the language from the privacy policy in their letter, the faculty group infringed the copyright in the privacy policy. One thing that is decidedly odd about this copyright claim is that, at the same time that Lucas is claiming improper copying, he is claiming that the letter misstated the privacy policy. Either the letter contains exact quotes or it doesn’t. But beyond that, any language taken from the policy is plainly fair use — when you are criticizing a written text, you often have to quote the text being criticized. And beyond that, my search of the copyright database did not identify any copyright registrations by ProctorU. . . .

The demand letter invokes the ACPA but it is hard to see why, other than to give Lucas an excuse to put the phrase “bad faith” into the letter (he mentions that statute’s “bad faith factors,” none of which point in the direction of bad faith so far as I can see), and to threaten statutory damages and attorney fees. But the ACPA could have provided a remedy only if the faculty group had registered or used a domain name to place its communications online; it does not provide a remedy for mentioning the URL’s of some pages within ProctorU’s own web site in the body of a text, or for linking to those pages. . . .  I should note that although the faculty group did not register a domain name for their letter about ProctorU, there are plenty of ProctorU domain names ready for the taking, each of which could be lawfully used for a campaign to criticize that company for hiring David Lucas to send this letter, or indeed for criticizing Lucas or his client’s funders. . . .

Although it was the silly intellectual property claims that spurred my interest in this matter, the more I have thought about the libel side of the case, the less potent the claims have seemed to me. On its face, the strongest point in the demand letter is the contention that ProctorU never sells the data that accumulates – and if that were true, and if the faculty letter had accused ProctorU of selling the data, that might well qualify as material falsity. But in fact the letter only complains that ProctorU shares the data with others; the only reference in the faculty letter to “selling” is in the phrase quoted above: after urging that UCSB drop ProctorU, it also urges a more general policy: not to use “this service or any other private service that either sells or makes students’ data available to third parties.” There is no charge in the letter that I can see saying that ProctorU sells data.

The rest of the libel discussion in the demand letter is a big nothing. . . .

ProctorU’s disproportionate response to the faculty group’s criticisms make me wonder just what there is to hide about the company’s data-sharing practices. Lucas’s letter contains a number of broad and conclusory assurances about his client, but no proof. I have to wonder what discovery, or an investigation by state authorities proceeding with enforceable subpoenas, might reveal about just what data gets shared with what third parties, and under what circumstances and with what protections against further dissemination. . . .

In sum, I see little merit to this demand letter, and the nasty character of the demand deserves a forceful response. My efforts to  engage Lucas in explaining his claims, and to get him to listen to reason, have failed.   So my suggestion to members of the public is that they communicate their views both to ProctorU itself and to Eastside Partners, a venture capital firm that has provided funding for this company. Three of the five members of the ProctorU board appear to work at Eastside Partners. So Eastside Partners could pull the plug on Lucas’s bullying, if it chose to do so.

Yesterday, Adam Steinbaugh, an attorney with the Foundation for Individual Rights in Education (FIRE), also weighed in.  He concludes that

even if one believes the faculty association’s evaluations to be misplaced, their letter identifies — and links to — the information they rely on for their conclusions. When the basis of a statement is fully disclosed and the recited facts are themselves truthful, the statement is — as the U.S. Court of Appeals for the Ninth Circuit has held — an opinion based on disclosed facts, “no matter how unjustified and unreasonable the opinion may be or how derogatory it is.”

ProctorU could — and should — have responded by explaining its policies and why, in its view, the faculty members’ criticism is misguided. FIRE is agnostic on whether or not ProctorU’s policies are appropriate. But colleges would not be unwise to consider how ProctorU responds to criticism, and whether partnering with ProctorU will risk similar efforts to suppress criticism by students or faculty.

From all this I conclude that I may have acted too hastily and too cautiously when I removed the UCSBFA letter from this blog.  But if you missed it here the letter is still up at the faculty association’s website.