By: Wolf Chivers

Anti-Cheating Invasiveness

Remember when preventing cheating just meant the teacher watching to ensure nobody was peeking at their neighbor’s paper? As life has moved online, methods of cheating—in diverse contexts ranging from education to video games—have become more sophisticated. While cheating by unplugging your sibling’s controller might be done in good fun, cheating can also have major consequences in areas like education or esports tournaments, where hundreds of thousands or millions of dollars might be at stake. 

In recognition of the increased sophistication of cheating, anti-cheating measures have engaged in an arms race. In the process, some have become highly invasive. For example, video game anti-cheat software might once have monitored running programs, but current generations require the deepest possible access to a computer, raising concerns about exposure to ransomware, invasive monitoring, or remote system access. 

In schools, children as young as kindergarten age are being monitored with anti-cheat test-proctoring software designed to track everything from what is on their desks to how long they look away from the screen. In some cases, students are forced to allow school officials to inspect the contents of their bedrooms via webcam. In others, administrators can unilaterally declare that someone must have been cheating simply for looking away from their screen. Presumably, no one would want to be accused of cheating and have all of their work on an exam invalidated because their eyes flicked away from the screen one too many times.

Education and online gaming are different topics and only two examples, but despite their differences, they are both intrusive and raise similar concerns about privacy and monitoring. In some cases, intrusive anti-cheating software could even amount to a Fourth Amendment violation. This has already happened in one case, Ogletree v. Cleveland State University. A student was required to submit to a digital room search before taking an exam, and the court held that the search was unreasonable, and violated the Fourth Amendment. Why, and is the Fourth Amendment likely to protect against other anti-cheating intrusions?

Applicability of the Fourth Amendment

The full scope of Fourth Amendment law is complicated, but because it protects against “unreasonable searches and seizures,” searches within its scope have to be, at a minimum, reasonable. The general rule for determining whether a search is reasonable is to ask whether the subject of the search had a reasonable expectation of privacy in whatever or wherever was searched. Unsurprisingly, given how many times the word “reasonable” appears in that framing, there have been quite a few arguments over where people have reasonable expectations of privacy, but it is at least clear that expectations of privacy are highest in the home. 

A person’s expectations of privacy in the home are taken seriously; even bringing a drug-sniffing dog to the exterior of a person’s house can constitute an unreasonable search. The invasion in Ogletree was more overt in many ways: the student was taking the test in his bedroom, he had no opportunity to take the test another way, and he had very little choice in the matter, despite the fact that the scan would have potentially exposed sensitive documents. The school suggested that the student’s alternative was to get a zero on the exam. As a result, forcing the student to allow school officials to direct the room search was unconstitutional. 

Even so, Ogletree was only one trial-level court, and despite the circumstances being Orwellian, the holding was very narrow. The case could have come out differently if even small facts had differed, such as if the school had provided an alternative means of taking the exam or if a different type of anti-cheating monitoring that was less invasive of the bedroom had been used.

There are other limitations on applying Fourth Amendment protections against anti-cheating software. For one, there are arguments about whether people have a reasonable expectation of privacy in their personal computers, and trial courts have said both yes and no. If not, then even highly invasive anti-cheating software that only monitors activity on the computer probably would not be considered an unreasonable search. For another, the Fourth Amendment only protects against searches conducted by the government, not private parties. The search in Ogletree was a governmental search because it was conducted by Cleveland State University, which is a publicly funded institution, and therefore an arm of the government. Consequently, a private university with otherwise the exact same set of facts is unlikely to run afoul of the Fourth Amendment. 

Conclusion

Ogletree is perhaps less of a landmark and more of a signpost. It may not have much force on its own, but it signals the beginning of courts having to apply Fourth Amendment protections to anti-cheating software. 

Nevertheless, the Fourth Amendment’s privacy protections are not absolute. For instance, the fact that the Fourth Amendment does not apply to private parties probably prevents gamers from claiming its protections when faced with anti-cheating software. Still, given how intrusive anti-cheating software has become, new protections can only be a good thing, even if they do not apply in every circumstance.

#WJLTA #anticheat #cheating #education #gaming #fourthamendment