Photo provided courtesy of Pixabay.com.
By Shreya Desai, Staff Writer
The COVID-19 pandemic has brought significant changes to the world as most know it; however, for recent law school graduates, it has caused added stress due to changes to the administration of bar examinations across the country.[1] Not only was the July 2020 bar examination repeatedly rescheduled as far out as October 2020, but recent graduates also had to face the challenges of taking the examination online.[2] News of the remote administration of bar examinations nationwide sparked serious privacy concerns.[3] While some were concerned that there would be off-site monitoring of examinees, other privacy advocates raised issues relating to discrimination.[4] Several chapters of the American Civil Liberties Union (ACLU) in California maintained that Examsoft, which provided the software used for remote bar examinations, would have discriminatory impacts due to its use of facial recognition technology leading to possible violations of the California Consumer Privacy Act.[5]
The State Bar of California was threatened with a lawsuit concerning the use of facial recognition technology on its remote bar exam, which took place from February 23 – 24, 2021.[6] On February 10, 2021, the Lawyers’ Committee for Civil Rights Under Law sent a demand letter[7] to the state bar stating that if steps were not immediately taken to remove facial recognition technology from the exam, the group would be taking legal action.[8] The letter addresses the group’s concerns that the use of facial recognition technology “will have an unlawful disparate impact on examinees of color and women examinees.”[9] This statement was apparently based upon the fact that experts in the field of facial recognition technology have established its use to be disproportionately inaccurate in the identification of females and racial minorities.[10] Instead, the Lawyers’ Committee for Civil Rights Under Law requested the State Bar of California to consider alternatives, pointing to jurisdictions like Indiana, Nevada, and Louisiana, where bar examinations were conducted without facial recognition technology.[11] These jurisdictions offered the bar examination in an “open book” format, while others began implementing diploma privilege procedures for recent graduates.[12]
The State Bar of California responded to this demand letter with a request for more detailed information.[13]Specifically, it asked for a more in-depth analysis of how the use of facial recognition technology for the purposes of verification of identity causes an unlawful disparate impact on female examinees, as well as those of color.[14] It also inquired as to how an open book format would eliminate the need for facial recognition, as this would mean identity verification is removed altogether.[15] Lastly, the State Bar of California pointed out that whether recent graduates may receive diploma privileges is an issue to be decided by the California Supreme Court, which is the “sole authority regarding California attorney admissions matters.[16] In the end, no last-minute changes were made to the administration of the February 2021 bar examination.[17]
While the announcement has been made that the July 2021 California bar exam will be administered remotely, there is uncertainty as to whether the State Bar of California will change its testing format or eliminate the use of facial recognition technology.[18]
[1] https://www.law.com/2020/12/02/amid-covid-19-the-bar-exam-faces-a-reckoning-and-a-revamp/
[2] https://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information/
[3] https://news.bloomberglaw.com/us-law-week/october-online-bar-exams-spark-technology-privacy-concerns
[4] https://thehill.com/policy/technology/507381-law-school-graduates-worried-about-security-privacy-of-online-bar-exam
[5] https://iapp.org/news/a/aclu-raises-privacy-concerns-with-calif-online-bar-exam/
[6] https://www.law.com/therecorder/2021/02/17/california-wont-ditch-facial-recognition-for-february-bar-exam/
[7] https://lawyerscommittee.org/wp-content/uploads/2021/02/Bar-Exam-FRT-Demand-Letter-to-State-Bar-Final.pdf
[8] https://www.abajournal.com/news/article/california-gets-demand-letter-to-stop-using-facial-recognition-technology-on-bar-exam
[9] https://lawyerscommittee.org/wp-content/uploads/2021/02/Bar-Exam-FRT-Demand-Letter-to-State-Bar-Final.pdf
[10] Id.
[11] Id.
[12] Id.
[13] https://www.abajournal.com/files/2021-02-16_Letter,_Chang_to_Baron.pdf
[14] Id.
[15] Id.
[16] Id.
[17] https://www.law.com/therecorder/2021/02/17/california-wont-ditch-facial-recognition-for-february-bar-exam/
[18] https://www.ncbex.org/ncbe-covid-19-updates/july-2021-bar-exam-jurisdiction-information/
