Automation on the MTA: Are We Protected?

First implemented in 2024, the MTA's Automated Camera Enforcement (ACE) system seeks to improve the reliability of bus routes through "a bus-mounted camera system that issues violations to vehicles occupying bus lanes, to double-parked vehicles along bus routes, and to vehicles block bus stops." As the New York City MTA seeks to expand the ACE system, allowing private contractors and automated systems to regulate roads without apparent oversight threatens to violate due process and extend the MTA's powers beyond those established by the New York Vehicle and Traffic Law.

It is crucial first to examine in verbatim New York Vehicle and Traffic Law (NYVAT) and consider whether the recent expansion of the ACE system constitutes an overreach of the enforcement system beyond its initial guidelines. Section 111-C of NYVAT states that programs such as ACE must "operate bus lane photo devices only within designated bus lanes in such bus rapid transit program," and all captured images are "inadmissible in any disciplinary proceeding." However, in the most recent expansion of the ACE program, the MTA notes that the system will now also enforce "double-parked vehicles along bus routes" among other criteria, suggesting that the system rides a fine line on the enforceable scope established by NY Vehicle and Traffic Law. While the cameras themselves operate on buses, which are technically operating "within designated bus lanes," their enforcement scope now extends beyond the bus lane itself. Past precedent established by People v. Weaver underscores how, in the state of New York, "the massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy." The prolonged monitoring of individuals can be misused to track specific individuals. This is especially relevant, as the manufacturing and system design of these cameras are delegated to third-party private companies such as Hayden AI. 

Within the state of New York, it is crucial to examine past precedent and scrutinize the expansion of the ACE system using the Boreali factors established in a 1987 case. For some context, Boreali v. Axelrod was a 1987 case tried by the New York Court of Appeals between Fred Boreali and David Axelrod, who at the time served as Commissioner of the New York State Department of Health (NYSDOH). The gist of this case was that the New York Public Health Council (PHC), a subdivision of NYSDOH, established guidelines prohibiting indoor smoking as part of its authority to "[protect] public health." However, this was deemed as an overstep of their authority, as while the New York State Legislature had previously "[enacted] a bill in 1975 restricting smoking in certain designated areas," they later attempted and failed to "adopt more expansive restrictions on smoking in public places." In light of the legislature's failure to adopt the expansive restrictions, the court determined that the PHC's establishment of its own regulations (rather than follow through with existing law) was an overreach of its authority, as it essentially overruled what the legislature had previously determined, or rather failed to determine.

While not explicitly established in Boreali v. Axelrod, later cases would categorize the case into four main factors: the balance of social and economic factors, the lack of legislative guidelines, legislative rejection, and the lack of agency expertise. The first factor, the balance of social and economic factors, arose from the idea that the PHC considered broader social and economic factors (protecting individuals from smoking, secondhand smoke, etc.) rather than a simple, direct application of their technical, scientific judgment. With regard to the MTA, the expansion of the ACE system can be considered an effort to regulate broader social habits. The MTA's mission is broad, stating "the Metropolitan Transit Authority (MTA) preserves and enhances the quality of life and economic health of the region it serves through the cost-efficient provision of safe, on-time, reliable, and clean transportation services" and regulating broader parking habits does "[preserve] and [enhance] the quality of life" of local residents. It is essential to interrogate, however, whether the use of automated systems to regulate these habits preserves quality of life or jeopardizes privacy.

The second factor of Boreali v. Axelrod examines the lack of definable legislative guidelines. In particular, since PHC relied on its broader mission statement to maintain public health without clear guidelines/legal writing from the legislature, Axelrod and the rest of the PHC essentially acted on "on a clean slate, creating [their] own comprehensive set of rules without the benefit of legislative guidance." In this case, the MTA blatantly fails the second prong of the Borealis factors. Although the MTA is acting in accordance with its mission statement, it is not acting on a "clean slate" or following a written slate, but rather attempting to rewrite the slate by going beyond its designated powers under NYVAT and implicitly regulating more than what has been written. 

The third factor of the Borealis factors concerns the initial rejection of stricter regulations on smoking. Because the NY State Legislature had previously rejected these new regulations, the PHC essentially went against the legislature's recommendations and bypassed the legislature's inability to reach a decision. In the MTA's case, while there have been proposals by New York Governor Kathy Hochul to expand the ACE regulatory powers in legislation, these proposals have ultimately failed thus far. As such, the MTA's recent expansion to the ACE system has bypassed the legislature's recommendation in a nearly identical fashion and thus fails the third prong.

The last factor of the Borealis factor concerns the lack of technical agency expertise. In the Borealis case, the argument was that the PHC did not draw on specific technical expertise in crafting smoking regulations, but instead considered only social factors. With regards to this aspect, the court noted that "although indoor smoking is unquestionably a health issue, no special expertise or technical competence in the field of health was involved in the development of the antismoking regulations." While improving quality of life is definitely integral to the mission of the MTA and clearing routes for MTA buses is crucial for the MTA's continued operation, it is essential to interrogate whether technical expertise was utilized in the development of these recent expansionary policies. By comparing the MTA ACE System's recent expansionary policies to the Borealis factors, it is safe to say that the ACE System does not explicitly satisfy these prongs. However, we must further analyze the ACE expansion from another angle to reach a conclusion.

As the MTA contracts out the automated systems of its ACE enforcement program to private companies that use AI, the loopholes in allowing a private entity to establish enforcement standards should be subject to scrutiny. As clarified in documents from the MTA, cameras and systems for the ACE program have been contracted to private companies, including Hayden AI Inc., based in San Francisco, California, and Seon, based in Bellingham, Washington. To provide some insight, while the 2015 case USDOT v. Association of American Railroads determined that Amtrak is considered a government entity and has the authority to establish metrics and standards for rail, concurring opinions from Justices Thomas and Alito question the constitutionality of a private entity creating legally enforceable rules. The 1977 Supreme Court of NY State decision in Levine v. Whalen partially establishes that enforcement standards cannot be delegated to another body. Therefore, the MTA's outsourcing of ACE system development to private companies should be strictly scrutinized in light of precedent.

As technology continues to expand and develop in law enforcement, it is crucial to consider the threats it poses to personal privacy. As AI systems continue to evolve, it is crucial at this point in history to remain vigilant about unwanted data collection, which, when placed in the wrong hands, can have detrimental effects.