Whatever Happened to New York’s School Facial Recognition Ban?

In 2020, New York became the first state to ban biometric technology from schools. But administrators are still seeking “face analytics” tools and other gray-area tech — with scant guidance from the state.

Rebecca Heilweil   ·   March 28, 2023
A moratorium prohibits New York schools from using biometric technology. But more than two years after Andrew Cuomo signed it into law, it’s not clear where the ban stands. | Illustration: Maia Hibbett for New York Focus

IT WAS SUPPOSED to be a watershed moment. In the final weeks of 2020, then-Governor Andrew Cuomo signed a landmark law halting the use of biometric technologies, the class of identification software that includes facial recognition, in New York schools. The moratorium was the first of its kind in the country, and it made New York the first US state to prohibit schools — public and non-public alike — from purchasing or using the tech for any purpose.

Or at least that was the idea.

“We are actually using this camera system more from a shooter perspective,” said Georgia Gonzalez, Otselic Valley Central School District superintendent, of a software-integrated camera system her school currently employs. Otselic is one of nearly 20 districts New York Focus identified that applied for state assistance to purchase tech that exists in a gray area: multi-pronged systems that are not marketed as facial recognition, but which include technology that resembles it. Many of the applications include references to software with an “Appearance Search” tool powered by “face analytics.” It’s in Otselic’s software package, Gonzalez confirmed, though she said the school hasn’t needed to use it.

Schools were supposed to hold off on buying or using biometric technology with the moratorium in effect, but more than two years after Cuomo signed it into law, it’s not clear where the ban stands. It was designed to give the Office of Information and Technology Services, in consultation with the state education commissioner, time to produce a report analyzing the tools and recommendations for how schools should use them, if at all. And it mandated multiple “public hearings” and extensive outreach.

New York Focus could identify only two instances in which the state attempted to engage the public as required: A single form uploaded to the Office of Information Technology Services website — now closed — and a virtual hearing in October that lasted 24 minutes. The ITS office told New York Focus it also created an email address for people to submit comments about the report.

The New York Department of Education did not respond to a request for an interview, but said that it hopes to release its report in the coming months. The Education Department did not respond to a list of questions about its approach to biometric technologies in schools. It’s not clear what guidance the Education Department has given school districts — or if school administrators are even aware of the moratorium’s stipulations.

Representatives of four different school districts, including Gonzalez, told New York Focus that they applied for state assistance to purchase software-integrated camera systems from Avigilon, a Motorola Solutions subsidiary — and received no guidance from the state. Privacy experts at the New York Civil Liberties Union, or NYCLU, said that the state has continued to approve grants for school security software systems that incorporate biometric technology.

School security systems are typically designed to work with a network of cameras, and they can include several forms of video analytics. Packaged together, these software systems are marketed to administrators as a way to boost school safety, enforce disciplinary codes, and even assist during school shootings.

Every school is sort of its own little fiefdom.

Jason Kelley, Electronic Frontier Foundation associate director

Often pushed by third-party vendors and consultants, the software packages market themselves on the premise that a shooter would already be known to the school and that the technology would work in real-time. Critics call this unlikely. They argue it’s more probable that school administrators would use the technology to discipline and criminalize students, and disproportionately students of color.

The moratorium’s nebulous enforcement calls the New York Education Department’s commitment to understanding biometric technology into question, especially when it comes to software that companies, like Avigilon, don’t explicitly market as “facial recognition.” The critiques come as New York lawmakers consider the rise of surveillance technologies in other places, including government-supported housing and venues like Madison Square Garden. At the federal level, regulation is scant.

“Every school is sort of its own little fiefdom,” Jason Kelley, the associate director at the Electronic Frontier Foundation, a privacy-focused research and advocacy group, told New York Focus. And they’ve all been left to develop their own approaches to security — driving more schools to purchase software packages.

“Every superintendent I talked to put themselves in the perspective,” said Joseph Reilly, a consultant who helps schools apply for security technology grants, “Have we done everything we can to make sure our kids are safe? If a Uvalde happened? If a Sandy Hook happened? Are we prepared to deal with that?”

NOT LONG BEFORE Covid-19 swept the United States, the Lockport School District in upstate New York inadvertently ignited a nationwide debate. In January 2020, the district allowed administrators to turn on new surveillance technology following an extensive back-and-forth between privacy experts and state officials — and plenty of media coverage.

Lockport officials said the technology could help stop sex offenders and suspended students from coming to campus. The software was funded by a state-supported educational technology grant program, the Smart Schools Bond Act, or SSBA, approved by the program’s review board, and purchased legally.

But critics, including privacy experts and some parents, called the technology dystopian. They pointed to extensive research showing that facial recognition is rife with racial and gender bias. An audit publicized by the NYCLU found that the algorithm that Lockport purchased was 16 times more likely to misidentify Black women than white men.

“One of the school districts in my district was talking about using it for disciplinary reasons, not just for security. That was a big red flag to me,” Assemblymember Monica Wallace, the state lawmaker who proposed the moratorium, told New York Focus. “We don't want to have a surveillance state for these kids.”

Disturbed by the prospect of using powerful algorithms to screen and monitor young people, the state legislature passed the moratorium.

While they settled the legislation, the pandemic hit, making the facial recognition debate in Lockport moot. The school turned the technology off at the end of 2020. Today, the website for the SSBA program says that its review board is not currently approving plans that include facial recognition or “other similar self-learning analytic software.” Schools are supposed to submit statements of assurance that they’re not accessing this kind of tech.

But the raft of approved applications for Avigilon and other tech suggest the Education Department may not be fully enforcing the law.

One prominent biometric tool included in an Avigilon software package isn’t technically facial recognition, but the company’s website explains that it uses details about a person’s face and gender to track where they’ve been throughout a school — sometimes by uploading a picture — and can follow them even if they’ve changed outfits. Sean Patton, a product manager at the security camera research firm IPVM, told New York Focus that the Avigilon software “absolutely can and does use biometric analytics in some parts of its function.”

We are actually using this camera system more from a shooter perspective.

Georgia Gonzalez, Otselic Valley Central School District superintendent

Avigilon’s parent company sent a letter warning customers that the technology could run afoul of local and state biometrics laws because it can generate “appearance signatures.” IntraLogic, another prominent security tech company, has said that facial recognition is included in its VMS 3 software, which Farmingdale School District appears to have requested permission to buy. Neither IntraLogic nor district officials responded to a request for comment.

Other districts appear to have filed plans to buy technology from the security camera company Verkada, which also offers facial recognition. Day Automation, a security vendor that works with schools in New York, declined an interview request.

It’s not clear how intensively the Education Department is screening these technologies. Reilly, the consultant, said that officials have rejected plans because they include software that could violate the moratorium in at least some cases. He added he’s worked with more than 100 districts on their SSBA applications.

Of course, schools can buy security technology without an SSBA grant, and the state has not yet conducted an audit to examine what technology schools are using.

TODAY, THE FUTURE of surveillance tech in New York schools is unclear. Education Department officials told New York Focus that its report will be available in the coming months, but observers say they’re not sure how much progress has been made. Wallace, the assemblymember, told New York Focus, “I haven’t heard any updates.”

The law directs the state to seek feedback from teachers, school administrators, and privacy experts. The report is supposed to explore not just concerns of privacy and racial bias, but also performance. Critics, and even the leaders of some facial recognition companies, emphasize that the technology isn’t set up to stop a school shooting.

“The public outreach has been so minimal that one could argue [state officials] are not following [the law],” said Daniel Schwarz, who works on privacy and technology at the NYCLU.

The ITS office told New York Focus that the office “complied with all statutory requirements and has been in contact with all necessary parties and stakeholders regarding this report,” and added that it’s been in touch with the NYCLU and the Security Industry Association.

At October’s 24-minute virtual hearing, speakers had to keep their comments brief.

“As one of the parents in New York state who is probably the most visible and vocal on this, they never reached out to me,” said Jim Shultz, a Lockport parent, anti-facial recognition activist, and a plaintiff in an NYCLU lawsuit to revoke Lockport’s ability to use the software before the moratorium was passed. “It felt to me like they said, Okay, we need to say that we held a public hearing and people were invited to testify. There was no engagement. They didnt ask us any questions.

According to the law, several agencies are also supposed to provide representatives to help shape the final report. Two of them, the State University of New York and the City University of New York, did not say whether they had participated in the process and referred New York Focus back to the Education Department. Asked if it had weighed in on the 2020 law, the Division of Criminal Justice Services first said it did not comment on pending legislation, then sent an excerpt from a minor amendment made in January 2021. It did not respond to the question.

Jake Parker, from the Security Industry Association — an industry group that lobbied on the moratorium, and whose members include companies like Avigilon and Verkada — said he hasn’t received an update from the Education Department since October and that state officials haven’t responded to his most recent outreach.

Without proper state guidance, school administrators are likely to keep filing applications for software with biometric technology. And even without the grants, they may end up getting access to the technology as companies continually update their software with ever-more powerful AI.

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