Online Proctoring, Exams, and the GDPR? Due to the coronavirus outbreak, my university has tentatively canceled all live forms of live education, including exams. Instead, they have decided to hold exams through an online proctoring software (third-party), which requires access to the computer webcam, microphone, screen, and browsing history to work. This is the first time the university is doing an examination in this manner, and there are no official guidelines for how these exams are to be conducted. I am concerned about my data privacy in the context of these exams, and am wondering what my rights are and how I can exercise them. Specifically, I am wondering whether I can refuse the collection of my personal data through the online proctoring software, and whether the university may reprimand me for doing so. If both are the case, how can I truly say that I 'consent' to data collection and processing when I am coerced, so to speak, by the threat of failing my courses if I do not use this novel software?
How can I truly say that I 'consent' to data collection and processing when I am coerced, so to speak, by the threat of failing my courses if I do not use this novel software? There is no need for you to "consent". Consent is just one of the reasons that allows a data processor to collect your data. There are other reasons that allows the data processor to capture your data. In this case, it seems of application the "legitimate interest clause", as it is in your university's legitimate interest to capture your activity in order to evaluate you. Of course, that covers only the data collected that is relevant to that interest. They will certainly capture your identity and your answers, they may log your sessions and may try to gather some data to detect if you are somehow cheating, but they would not be allowed to check which are your favorite pornhub videos because that is not relevant for the university's legitimate interest. Art. 6 of the GDPR states: Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This page also provides some in-depth analysis
Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself.
I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term &quot;EU resident&quot; above is an approximation of the territorial scope).
Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing.
This question shows a misconception of GDPR. GDPR creates an obligation not just towards the data subject but also towards the authorities of the relevant state(s). The data subject cannot waive your responsibility to safeguard data, document internal processes, etc. GDPR is not a blanket ban on the handling of personally identifying information (PII). Informed consent is one of the ways to get permission to process and store this data. If your data subjects are prepared to give your sweeping permissions, ask for consent (informed, revocable, etc.), document the consent, and go from there. The data subject does not get to decide what classification data falls under. If you collect, say, medical data, then you are subject to increased restrictions and safeguards.
Either approach can be GDPR-compliant. An issue to consider is that you as a data controller relying on consent “shall be able to demonstrate that the data subject has consented to processing of his or her personal data” (Art 7(1)). This might be simpler if a record of the consent is linked to a user account. On the other hand, the GDPR's data minimization principle would suggest that decentral, offline approaches are preferable. So you do have some flexibility here, as long as you feel comfortable demonstrating that your approach is compliant when investigated by a supervisory authority. In many cases, consent is not an appropriate legal basis to start with. It is one of several options in Art 6(1) GDPR. If a data processing activity is necessary for fulfilling a contract with the data subject, then Art 6(1)(b) is more appropriate. If the processing is necessary for a legitimate interest, then Art 6(1)(f) would work – after conducting a balancing test. Art 6(1)(a) consent is appropriate when the processing activity is not necessary, or when a legitimate interest balancing test doesn't go in your favor, or in some cases when required by law. For example, consent is required when processing special categories of data (such as biometrics), or when accessing or storing information on the end user's device, beyond what is necessary for a service explicitly requested by the user (the “cookie law”, but much more general than cookies). Consent also has heightened compliance requirements compared to other legal bases. The data subject must be able to make a free decision, without any coercion. You must not use dark patterns. You must leave the data subject a real choice. You must not make access to your app conditional on giving unrelated consent (like providing access to a game only when the user gives consent for personalized ads). The data subject must be able to easily withdraw consent later, without suffering detriment for this. The EDPB has issued relevant guidelines that might be helpful here: EDPB guidelines 05/2020 on consent EDPB guidelines 2/2019 on Article 6(1)(b) in the context of online services (also relevant for apps) TL;DR: what is “necessary” for performance of a contract is an objective question, and should generally be considered from the data subject's perspective. It is not possible to circumvent consent requirements by putting unrelated processing purposes like “analytics” into a services' terms of service. The main purpose of this document is to serve as a rebuttal of Facebook's GDPR compliance strategy. But it's perfectly fine to avoid asking for consent for those processing purposes that are actually necessary for the user. I've noticed that you mentioned various Google services like Analytics and Firebase. To the degree that your use of these services implies an international transfer of personal data into the US, it might be impossible to be GDPR-compliant. Be wary of claims that you're only transferring “anonymous” data, as the GDPR has a fairly broad concept of identifiability.
If the website's processing of your personal data is within the scope of the GDPR, then you have a qualified right to request the erasure of your personal data. It is relevant whether: the website operates within the EU; the website is operated by a company established in an EU country; the website aims to sell goods or services to people in the EU; or the website is routinely processing the personal data of people in the EU (including non-citizens). Furthermore, it is relevant whether your posts: contain one or more identifiers from which you could be personally identified, directly or indirectly, including by only the administrators or owners of the website; and by their content, directly reveal information relating to you. For example, let's say you posted on a forum saying that "I am a keen supporter of socialism", and your personal email address was used to sign up to the website, then you would have revealed information about your political beliefs, which by reference to a username, the website owners could use to uniquely identify you by your email address. You would not necessarily have to have used your name. If, for example, you posted something factual, like, "The Porsche 911 GT2 RS MR recorded the fastest lap time for a road-legal sports car on the Nürburgring," then it is only personal as long as it is associated with an identifier through which you could be identified. As such, the removal of the relationship could easily anonymise the post. A data controller has an obligation to provide means by which the data subject can exercise the rights guaranteed under Chapter 3 of the GDPR. Article 17 grants the right to "erasure of personal data concerning him or her without undue delay" where the grounds under Art. 17 lit. 1 (a) to (f) are met. It may be relevant what the lawful basis of processing personal data was in the first place, such as in determining whether you can withdraw consent (i.e. you cannot withdraw consent if consent was not given), or in determining whether there is a right to object under Article 21 lit. 1. Derogations permissible under local implementing laws may provide for other exemptions or requirements to the right to erasure, so it is also important to determine the country of jurisdiction.
It's probably legal. This is not a sworn statement subject to perjury prosecution. Even if you can make the case that the statement is knowingly false, there is ample evidence (from colleges) that this is not a material consideration in admission. (I don't care where it actually is, that is plainly the statement that colleges make regarding race and admission). A fraudulent statement has to be material. It might violate college rules and they could conceivably throw you out for breaking the rules, if there is such a rule. Admissions materials are full of false statements. They are required by law to ask, you are not required to answer. Actual cheating on entrance exams is actionable (as we recently discovered); it is possible that in the future it will be &quot;discovered&quot; that exaggerations on entrance materials is also legally actionable.