ONLINE EXAMS AND MONITORING SOFTWARES: BREACH OF PRIVACY RIGHTS? - Welcome to Lumenar's blog

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Friday, 9 October 2020

ONLINE EXAMS AND MONITORING SOFTWARES: BREACH OF PRIVACY RIGHTS?


Chinecherem Ogodimma UBAKA



Virtual schooling is the trend in the education space is most likely here to stay. It follows then that students will also be assessed online. To ensure that the assessment results are  credible and a true reflection of the students academic standing, there must be monitoring. The is the reason for the invigilation of exams in a physical setting.
What happens when this invigilation is done electronically using softwares?
Technically, it is called remote proctoring. The exam itself is referred to as a proctored exam.
Usually, proctored exams are timed. The software monitors your computer desktop, webcam, video and audio. After the exam, the data gathered is then transferred to the service provider for a review. 

There are a couple of proctoring softwares employed by educational institutions as well as corporation institutions in the course of their recruitment exercises. Some of them include; proctoring, examsoft, RPNow, Disamina, ProctoCL amongst others.

The forgoing softwares are exciting innovations that is needed to drive the data economy. Nevertheless, there are privacy issues that might arise in the course of using a proctoring software to administer assessment tests.

Right to Privacy in Nigeria

Sec 37 of 1999 Constitution, 
 "The privacy of citizens, their homes, correspondence, right to telephone conversations and telegraphic communications is hereby private and guaranteed and protected".

The right to privacy is basically described to mean that individuals are entitled to interact and develop a private sphere for interaction with others free from arbitary state intervention and from excessive unsolicited intervention by uninvited individuals.

The right to privacy is an invaluable right because it reinforces other rights like the freedom of expression, information and association. It is at the epicenter of safeguarding and protecting the dignity of mankind.

In March 2017, the United Nations Human Rights Council called on all states to review their procedures, practices and legislations regarding the survellance of communications, their interception and the collection of personal data, including mass survellance, interception and collection. The foregoing is to uphold the right to privacy as well as to ensure that states implement all their obligations under International Human Rights law.

Survellance and E-monitoring Regime in Nigeria.
There are two pieces of legislation that authorises the survellance of communications in Nigeria.
-The Terrorism (Prevention) Act, 2011
- The Cybercrimes (Prohibition, Prevention, etc) Act, 2015.

The Guidelines for the Provision of Internet Services issued by the Nigerian Communication Commission (NCC), allows internet service providers to retain internet service related information, including user identification, content of user messages, traffic for a minimum period of 12months. 

The above provision on data retention contravenes the internationally recognised principles that survellance policies and practices must observe by virtue of the International Principles on the Application of Human Rights to Communication Surveillance. They include:
- legality
-necessity
-proportionality
-judicial authorization
-transparency
-user notification
amongst many others.

Online Proctoring examination services must conform to the above mentioned international principles so as to prevent breach of the students and/or applicant's privacy rights. 

This means that there must be a legal framework with extensive provisions regulating proctoring. User notification is also very important because if the student in question is ignorant of the fact that they are under surveillance, sensitive personal attributes like disability will be captured by the software, sent to the service providers for onward transmission to their respective clients. Furthermore, data retention of such sensitive personal attributes is a gross breach of the individual's right to privacy. 

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