In reviewing the @dp4dc comments, something I'm noticing is a lot of people dismissing or undervaluing the privacy concerns we have with remote proctoring

I'd like to use twitter expressly against its intended purpose and engage here in good faith

1/

"It's just like the exposure you would have in an in-person exam," or as the Committee on Admissions phrased it, the recording is "functionally similar to the visual inspection an applicant undergoes by proctors for the duration of an in-person exam."

2/

The thing is...it's not. Even just on a practical level.

In an in-person exam setting, unless the bar is proctored differently than every other standardized test, you are in a large room with perhaps hundreds of your peers.

The ratio of proctors to examinees is not 1:1

3/

The proctors in in-person exams are not sitting directly facing the examinee, staring at them throughout the experience. They have a whole room of people to roam or scan with their eyes. Their focus is diffused.

4/

As someone with anxiety, let me assure you that in-person proctoring is a completely different experience to being stared at with that kind of intensity. I also have the experience of every other standardized test to draw on to mitigate stress.

5/

The human proctors at an in-person exam are also not recording audio and video of each examinee from that that angle.

The proctors, as human beings, do not have this capability.

6/

Remote proctoring creates a permanent audio-visual record of the examinee, in their home, for the full duration of the test

Every breath, every glance, every pencil tapped, every lip bitten, every word mouthed as you read silently to yourself is scrutinized by AI or human

7/

This audio-visual record is the property of a third party contractor, against whom you have no rights. They may be breached, they may use it to train AI, they may sell it to law enforcement to train AI. You don't know.

An human proctor could not do this.

/8

That level of exposure changes the calculus of every action you take throughout an exam. When I read on computers, I lean in close to the screen and follow the words with a pen, or mouth them to myself as I go to prevent from getting distracted.

/9

Will that behavior get flagged as cheating? Will it knock the webcam out of focus? If I need to change positions to get comfortable, will I be penalized?

You could tell me definitively the answers to these questions today, and I'd still be distracted by this during the test

10/

On this point, people often point out the prevalence of private surveillance out in the world.

"You go to the grocery store, or drive-thru, or other public spaces. You're usually being recorded there too, so how is this different?"

11/

(A) I'm actually not okay with that either and we can and should have the larger discussion about the surveillance state, but
(B) bringing that into my home as a requirement of becoming an attorney is distinguishable

12/

If this had been a requirement of the bar exam before I started law school, I can tell you that would have changed the decision-making process.

I might not have ultimately gone to law school, instead finding other ways to do the kind of work I want to do.

13/

But this has been sprung on us at the last possible second, materially changing the privacy considerations of the attorney licensing process.

<insert analogy to unfair surprise and unconscionability in contract law>

14/

About a year ago, I came what I thought at the time was as close as I would ever be to not becoming a practicing attorney when I read the requirements and disclaimers of the computer-based MPRE.

15/

The MPRE, which I took in person, is an ethics exam. In order to take it, and being unable to get admitted to the bar without it, I had to give a palm print scan to the third party contractor and have a camera (and human) proctor trained on me throughout.

16/

I was not comfortable with that then and I'm not now. I think the level of surveillance we force on students in the name of "academic integrity" is immoral and should be illegal.

I sat and grappled with whether I would go through with the MPRE on those terms.

17/

But in that instance, the invasion was lesser (e.g., I was at a testing center with other examinees) and the cards were on the table from the beginning. I "buckled down" and studied and passed the MPRE despite somehow being too ethical.

18/

These changes to the bar exam have come when we are vulnerable and unable to change course. People's jobs and livelihoods are dependent on this.

People took the July in-person bar exams because they had no real choice, and many will do the same for the October remote exam.

19/

Call me naive or idealistic, but the legal profession should be better than to make people "voluntarily" waive rights they aren't comfortable waiving in order to become licensed, on the theory that they could always "choose" not to take the exam.

<googles "economic duress">

20/

This is what it means to say that even if there are no data breaches, the infrastructure can be built, the bandwidth is sufficient, you don't need to maintain an internet connection throughout the test, etc etc:

the remote exam is materially different than an in-person test

21/

Disagree with my conclusions if you're so inclined, but none of us are helped by these assurances that it's "not really that different."

It is. And that matters for how we study for and feel about the test, even before you factor in the pandemic and recession

22/

#DiplomaPrivilegeNow because the legal profession I want to see is pragmatic, empathetic, and committed to increasing justice, and I have to believe it's possible.

Thank you for coming to my THREADtalk.

23/x

(that pun is for me and @samjamtimtam and no one else)