Written by Sam Brewster
On February 16, 2021, the State Bar of California issued its response to a demand letter sent by the Noah Baron, counsel for the Lawyers’ Committee for Civil Rights Under the Law, that objected to the use of facial recognition technology for the state’s upcoming February bar exam. The demand letter made reference to the technology’s disproportionate inaccuracy in identifying women and people of color and threatened to take legal action if use of the technology continued. The State Bar responded by discussing its commitment to inclusion, stating it “does not discriminate in any manner in the execution of its regulatory missions, including the administration of the Bar Exam.”
The demand letter threatened to bring suit on behalf of Ian To, a 2020 law graduate of Asian descent whose exam was flagged for cheating due to Examsoft’s facial recognition software’s inability to verify his identity prior to and during the exam.
The use of facial recognition technology in the administration of remote state-issued bar exams continues to pit state bar associations against civil rights groups. As the COVID pandemic continues, most states will continue to administer remote, online exams for the foreseeable future, meaning the debate surrounding facial recognition technology’s use for bar exams is sure to continue.
Traditionally, a bar examinee must verify his or her identity prior to the taking of the exam. The use of facial recognition as a means of remote identity verification requires an examinee to upload a photo of him or herself to the platform, which the platform then uses on exam day to verify the examinee’s identity and to monitor the examinee through the camera on the examinee’s computer. The issue concerning civil rights groups is that facial recognition has been found in several studies to be disproportionately inaccurate in regard to women and people of color. Such inaccuracies prevent more female examinees and examinees of color from being able to verify their identities, resulting in a higher frequency of flagged and disqualified exams.
While some states have used other methods to administer the bar exams or admission to the bar, facial recognition technology, despite fervent arguments against it, remains the preferred method for states wishing to uphold identity verification and proctoring for online bar exams. In February, only 16 states will administer bar exams in-person; the rest will administer exams online using facial recognition technology.
Why Facial Recognition Technology?
As a result of the COVID pandemic, the majority of states have opted to administer bar exams online. As a security measure, bar examinees, typically, must present a government issued ID to be checked before each of the four exam sessions. As bar exams went online, state bars faced the issue of how to sufficiently verify identities of individuals taking the exams remotely. While some states avoided the issue by implementing diploma privilege, which provides automatic admittance to a state bar upon graduation from an ABA-accredited law school, the majority of states opted for familiar platforms, like Examsoft, which were already widely used by law school to administer exams that recently added facial recognition to their platform.
For bar associations administering remote exams, platforms like Examsoft and others offering facial recognition technology represent a practical and sensible solution for concerns of security and cheating during remote bar exams. Further, the alternatives to facial recognition technology for identity verification for remote exams are limited. The California Bar’s response may also reveal that state bars likely do not view their limited use facial recognition for bar exams as substantial enough to disparately impact women examinees or examinees of color.
Additionally, state bar associations have found the technology to be effective. After the first wave of remote bar exams in October 2020, bar authorities across the country said they saw few technological issues with remote exams, and most states will continue using the technology for the upcoming exams next week.
Discrimination Concerns and Legal Action
Baron’s threat of legal action may have substantial merit. The demand letter cited to several recent studies demonstrating facial recognition to be less accurate when used to identify people of color, people of Asian descent, and women. In one study conducted by the ACLU of Northern California, 1 in 5 state legislators were erroneously matched with a mugshot of a person who was arrested, “with facial recognition disproportionately misidentifying lawmakers of color.” Analysis by the federal government and other independent researchers has found similar patterns of misidentification with respect to women and people of color.
Given the consistent findings across numerous studies, the state bar associations’ continued use of facial technology for bar exams with knowledge of the technology’s inaccuracies could be viewed as an intentional decision to discriminate against examinees based on their sex, color, or race, a clear violation of federal civil rights laws. The argument is bolstered by the fact that in order to obtain employment and practice law in most jurisdictions, an individual must pass the state’s bar exam. Thus, the conscious use of discriminatory technology by state bars for the administration of their bar exams could be seen as a violation of Equal Employment Opportunity law.
There is also an argument that use of the technology is an unlawful collection and storage of examinees’ biometric information and in violation of newly-adopted biometric privacy laws.
While research and civil rights groups continue to voice concerns over the discriminatory effects facial recognition’s use, state bar associations will need to consider at what point those concerns and the risks of legal action outweigh the technology’s practicality and utility in administering online bar exams in the future.
It is likely that, given the practical utility of the facial recognition software included in familiar test-administering platforms and the limited alternatives available to sufficiently verify identities remotely, It is unclear the effect of Baron’s demand letter and threat of legal action will have on bar associations going forward. State bar associations likely view their limited use of the technology as unlikely to significantly impact marginalized groups and predict that any lawsuit arising from technology’s use will likely be moot upon return to in-person exams.
Stephanie Francis Ward, California Gets Demand Letter to Stop Using Facial Recognition Technology, ABA Journal(Feb. 11, 2021, 2:41 PM).
Debra Cassens Weiss and Stephanie Francis Ward, Afternoon Briefs: California defends bar exam facial recognition tech; pants-on-fire lawyer arrested, ABA Journal (Feb. 17, 2021, 4:45 PM).
Karen Sloan, California Won’t Ditch Facial Recognition for February Bar Exam, LAW.COM (Feb. 17, 2021, 1:05 PM).
Facial Recognition Technology Falsely Identifies 26 California Legislators Mugshots, ACLU of Northern California (Aug. 13, 2019).
Khari Johnson, Examsoft’s remote bar exam sparks privacy and facial recognition concerns, VentureBeat (Sep. 29, 2020, 9:07 AM).
Letter from Noah Baron, Counsel, Lawyers’ Comm. for Civil Rights Under the Law, to Sean M. SeLeague, Bd. of Tr.’s Chair, State Bar of California, et al. (Feb. 10, 2021).
Email from James J. Chang, Assistant Gen. Counsel, State Bar of California, to Noah Baron, Lawyers’ Comm. for Civil Rights Under the Law (Feb. 16, 2021).
Email from Nicole A. Ozer, Tech. & Civil Liberties Dir., ACLU Found. of N. California, et al. to Tani Gorre Cantil-Sakauye, C.J., Supreme Court of California, et al. (July 16, 2019).
February 2021 Bar Exam: Jurisdiction Information, National Conference of Bar Examiners (Jan. 12, 2021, 11:00 AM).
Photo courtesy of BBC