Almost every New Yorker has seen it, many more than once: harassment, groping or sexual abuse on the bus or subway. It’s horrible, it’s all too frequent, and advocates are right to demand an effective response. But when that response takes the form of mass transit banishment, New Yorkers need to pause and ask some questions.
As part of his 2020 State of The State address, Gov. Cuomo is backing a three-year ban on riding the subways and buses for those convicted of certain sex crimes, including repeated harassment on the public transit system. To see mass transit turned from the birthright of all New Yorkers into a privilege for those deemed worthy is alarming. But seeing “Minority Report”-style preventative policing take root in Albany is downright chilling.
It is a basic notion in all free societies: Someone guilty of a past crime is not presumed guilty of future offenses. This mentality turns past infractions into an inescapable pipeline to recidivism, and it’s a stark change coming from a governor who once said that giving New Yorkers with criminal records a second chance is a “step toward a more fair and a more compassionate” state.
New York is long past due in holding sexual abusers, especially those in positions of power, accountable, but that doesn’t mean that sexual harassment should be exempt from the rules that govern every other sort of policing.
Indeed, there is no evidence that sexual harassers are more likely than those with other convictions to reoffend. So why should they get banned from taking the bus if those convicted of murder and arson remain free to ride the rails?
Those previously convicted of crimes still have a right to commute to work. They still have the right to repay their debt. Our nation’s puritanical predecessors may have believed in banishment, but our Constitution forbids it.
And the part of the law that is most disturbing isn’t found anywhere in the text of the governor’s speech: How will the ban be enforced? How will the NYPD police the nearly 2 billion MTA trips taken each year?
When NYPD Commissioner Dermot Shea was asked this question on WNYC this week, he repeatedly dodged, saying “the officers know who these individuals are.” When asked if riders would have to show ID and if this would risk racial profiling, he simply repeated the claim that sex offenders are known to cops who patrol the subways and can be easily identified.
The notion that thousands of transit officers can recognize sexual offenders on sight defies logic. The Legal Aid Society fears just what Shea denied, that the law will lead to racial profiling by officers who can use it as a pretext to stop riders of color. They may be right, but the answer may be more Orwellian. It could involve something the MTA has pledged not to do: real-time facial recognition.
The NYPD facial recognition program, which is now used to investigate crimes after they’ve been committed, reached more than 8,000 cases in 2018, but that is nothing compared to its potential deployment to identify people banned from the transit system in real-time.
This would not only be reminiscent of Chinese surveillance; it would automate discrimination against New Yorkers of color and women, who face much higher error rates.
These concerns were raised last year, when apparent facial recognition was spotted in the Times Square subway station. The MTA denied the allegation, but when my organization, S.T.O.P., demanded to see the proof, they stonewalled us.
The MTA and NYPD claim that there are no plans to use facial recognition technology to keep anyone out of the subway system, but why should we trust public denials? We need it put in writing.
We need to know whether plans to add cameras to every single subway entrance could be used to facilitate real-time facial recognition.
And regardless of how it’s implemented, transit banishment would be a misguided response to a very real problem. But using facial recognition would make a bad law even worse. New Yorkers deserve to feel safe during their commutes, but this is not the way to do it.
Cahn (@FoxCahn) is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law.