Buried in the new state budget is one sentence with major implications for the future of MTA fare enforcement: a ban on the use of facial recognition.
The new law requires the MTA to “not use, or arrange for the use, of biometric identifying technology, including but not limited to facial recognition technology, to enforce rules relating to the payment of fares.”
State Assemblymember Zohran Mamdani of Queens told Gothamist the measure was added to the budget to protect New Yorkers and their privacy.
“There has long been a concern [facial recognition] could invade upon people’s lives through expanded surveillance and through the criminalization of just existing within the public sphere,” Mamdani said.
New York lawmakers and Gov. Kathy Hochul agreed on the budget last weekend. In typical Albany fashion, small changes to laws or rules were crammed into the sprawling document, including the facial recognition ban, without public debate. Transparency advocates often derisively refer to the document as the “Big Ugly” for that reason.
Privacy advocates and good government groups praised the new measure, particularly as the state Legislature increased the maximum penalty for fare evasion from $100 to $200 this year.
“Imposing harsher fines for fare evasion criminalizes poverty and puts vulnerable New Yorkers at risk,” Michael Sisitzky, a policy expert at the nonprofit New York Civil Liberties Union, wrote in a statement. “It’s encouraging that Gov. Hochul recognizes the dangerous and harmful impacts of biometric surveillance as a tool to combat fare evasion, but New York must stop punishing our city’s marginalized communities with historically discriminatory policing tactics that enable targeted policing against people of color and low-income New Yorkers.”
An MTA spokesperson said in a statement that the agency has never used facial recognition in its expanding surveillance system. The agency is in the midst of installing cameras in every subway station and some train cars.
Meanwhile, the NYPD has used facial recognition since 2011 “to investigate criminal activity and increase public safety,” according to a document from the department, which has access to MTA video feeds. It wasn’t clear if the new state law precludes the NYPD from using its facial recognition programs on MTA surveillance footage of fare evaders.
Still, Will Owen, a spokesperson for New York-based civil rights group the Surveillance Technology Oversight Project, said the state’s measures don’t go far enough.
“We’re calling for New York state to pass legislation that would fully outlaw the use of facial recognition and other biometric surveillance by government agencies to truly protect New Yorkers,” Owen said.
Technology and civil rights experts say facial recognition is imperfect and has the potential to produce biased results. The nonprofit Innocence Projects cites six examples of Black people who were falsely accused of crimes after the technology misidentified them.
The NYPD has said that when it uses facial recognition with surveillance footage, officers manually review the information before making any arrests.
Rachael Fauss, senior policy adviser for good-government group Reinvent Albany, said the measure was a signal of New York legislators’ growing skepticism of law enforcement using facial recognition technology.
“I see it as putting up a marker or red flag that facial recognition cannot be used in this area, which may deter them from trying to use it in other areas,” she said.