Canadian Court Allows Distance Learning Spyware Seller To Continue Silencing One Of Its Many Critics

A worldwide pandemic in 2020 altered the contours of pretty much everything. Entire cities shut down. Retailers shrunk hours to time periods normally only witnessed prior to the introduction of the 24-hour clock. Shit got exceedingly weird.

The good news is most of the world understood the new normal would be anything but normal. The bad news is far too many governments and government agencies expected everyone to pretend an upended world was the equivalent of anarchy and responded (in)appropriately.

People could no longer be forced to spend most of their day in enclosed rooms with presumptively infected peers." I mean, that's what we, the people, understood about the virus and its attack vectors. But corporate figureheads (who are always able to work" from home and do not share oxygen with the hourlies) and administrators of educational institutions (who similarly distance themselves from the unpaid laborers [students] who help obtain federal funding through steady [compulsory] attendance) were nonplussed.

These people got angry. Then they got weird. They were told their anger and weirdness possibly wasn't lawful when there's a pandemic underway. Being placed on the quality of life" backburner did not make these people any less annoying. It simply made them more evil.

In the corporate world, it meant guilting people into returning to physical locations. At schools, it meant deploying a wide variety of extremely intrusive stalkerware to assure still-distanced administrators that the people they couldn't physically hover over during test time weren't cheating their way to imaginary wins in an imaginary marketplace of ideas supporters pretend is still a meritocracy.

Spyware was deployed. Some of it was sold by Proctorio, which, as its name suggests, is supposed to be a stand-in for the squadron of publicly-purchased kibitzers that hover over students as they participate" in government-mandated tests. Proctorio was problematic not just because of what it allowed educators to do - virtually invade the homes of students - but also because it chose to engage in legal warfare against critics, security researchers, and anyone else who might dig into its software and business practices.

In response to its aggressive tactics, Proctorio has also been sued. Those cases are still pending. But in Canada, a court has ridiculously decided that University of British Columbia learning tech specialist Ian Linkletter's posting of documents left exposed by Proctorio is somehow Linketter's fault. Linkletter's post makes it clear what's at stake: his own life and livelihood. And all because Proctorio can't stand being publicly criticized.

The BC Court of Appeal has dismissed the appeal of my anti-SLAPP application. You can read its reasons online: https://www.canlii.org/en/bc/bcca/doc/2023/2023bcca160/2023bcca160.html

Proctorio's lawsuit, which has already taken a massive toll on me and my family since it was filed in September 2020, will continue to do so for the time being. It isn't over, as I had hoped.

I continue to believe the suit against me lacks legal merit. Today's decision is concerning. The implications for people who express themselves online about matters of public interest are significant: professionals and scholars like me will be less likely to share their expert knowledge, even if it could help protect students and other vulnerable communities, knowing they could face a lawsuit like this from a wealthy corporation in response. The Protection of Public Participation Act hasn't done its job.

There's no First Amendment in Canada. There are free speech protections, but they're not as robust as they are in the United States, which made speech protections the first thing to be enshrined following the ratification of the Constitution.

That doesn't mean Canada hates speech. It just means the legal standard isn't nearly as protective of people like Linkletter, who did nothing more than share information Proctorio obviously wanted to remain confidential, but failed to take the proper steps to ensure it would remain so.

The decision [PDF] says it's Linkletter who's wrong, even if it can be argued the information Linkletter shared with others was of public interest.

The respondent Proctorio, Incorporated brought an action against the appellant Ian Linkletter in breach of confidence and copyright after he shared links to Proctorio's unlisted instructional videos hosted on YouTube. Mr. Linkletter appeals the denial of his application to dismiss that action under the Protection of Public Participation Act.

Held:Appeal dismissed. The judge did not err in finding grounds to believe that the breach of confidence claim had substantial merit and that Mr. Linkletter had no valid defence. His finding that the links were themselves confidential, and that the information was otherwise only available online in a diffuse and scattered form, is supported by the record. He also did not err in finding sufficient grounds to establish that Mr. Linkletter was obliged to keep those links confidential, based on the context in which he accessed them, and that sharing the links caused Proctorio detriment.

This is all incredibly screwed up. First, Proctorio is a powerful government contractor that had plenty of opportunities to greet Linkletter's speech (in the form of exposed secret" videos) with more speech. Second, unlisted" videos posted to YouTube are not the equivalent of proprietary info posted to internal, non-publicly-accessible pages at Protorio's own website. Third, Linkletter had no obligation" to perform Proctorio's OPSEC for it. And, finally, that Proctorio was (arguably) hurt by Linkletter's posting of secrets Proctorio knowingly shared with a third-party service (where's the Canadian version of the Third Party Doctrine when you need it?) should have no bearing on this case. If Proctorio wanted to keep something secret, it had far better options than uploading its information to a third party routinely accessed by billions of people every day.

This decision is horrendous. It basically allows private companies to claw back information they inadvertently exposed to the public just by claiming the exposure they caused harmed them. It's the legal equivalent of claiming that the hole Proctorio shot in its own foot, using its own gun, is the fault of bystanders who happened to witness the self-infliction of this wound and informed others about it.

While the court does recognize that Linkletter's posting of unlisted" YouTube links was expression on a matter of public interest," it decides this particular expression isn't protected because Proctorio never expressed an interest in making these videos public. And it upholds the lower court's decision, which somehow found in favor of Proctorio, despite the company not providing any evidence supporting its claims.

The judge addressed Proctorio's allegations of two specific harms: first, that sharing the videos would facilitate student cheating, and second, that it would assist Proctorio's competitors. The judge acknowledged that there was no concrete evidence before him to show how those things might actually have occurred, particularly given there was evidence suggesting that much of the information in issue was already in the public domain anyway. He concluded nonetheless that Proctorio had demonstrated harm because Mr. Linkletter had undermine[d] the virtual barrier on which Proctorio relies to segregate the information that it wishes
to make available only to instructors and administrators from that available to students and members of the public": at para. 80. He noted that the links were circulated widely, and that some of Mr. Linkletter's 958 followers on Twitter appeared to have retweeted the links: at para. 108. [...] It suffices at this point to say that I see no error in the judge's conclusion that there were grounds to believe Proctorio could establish some detriment.

This is a bad judgment call (in the technical and legal sense) being affirmed by a worse judgment call. Proctorio gets to keep suing Linkletter. It is allowed to keep bullying someone for having the temerity to use Proctorio's own published information and statements against it. And it gets to do this despite consecutive courts acknowledging (1) the information was of public interest, and (2) Proctorio was unable to provide solid evidence of actual harm.

The appeal is rejected and Proctorio is allowed to continue to press its considerable weight against whatever's left of Linkletter's resistance. Sooner or later, something's gotta give. And Proctorio is pretty sure it's going to be an educator who dared to pass on his findings to his small Twitter following.