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Last year, I was briefly living above a very busy street in in Manhattan. I estimated that if I placed eight 4K cameras zoomed into various parts of the street and recorded for a whole year, I could capture at least 1 million unique faces and 100k unique license plates over a single year. This data could potentially be highly valuable to law enforcement agencies, private investigators, shopping analytics firms, insurance companies and many others.

These hypothetical cameras would only capture public areas where people don't have an expectation of privacy. The footage would be stored for several years and analyzed using face/car recognition tools, creating a massive database of license plates and faces. This would be a private, commercial enterprise not sponsored by the government.

Question: Would this be legal in New York City?


Prior Research:

  1. NY State Civil Rights Law Section 50: Only discusses using someone's likeness for commercial purposes.
  2. NYPD Public Surveillance Guidelines: Focuses on law enforcement use, not private surveillance.
  3. New York Penal Law 250.45: Only talks about use for sexual purposes or recording private spaces.
  4. Federal Wiretap Act: Only talks about recording conversations, not video.
  5. California Consumer Privacy Act (CCPA): No equivalent in NYC or NY State, as far as I could find.

Therefore as per my understanding this would be completely legal?

JonathanReez
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Although you're located in NY and assuming this is all legal in NY: you may still run into trouble due to other jurisdictions' privacy laws (CCPA, GDPR, LGPD, PIPL, there may be others). You inevitably will collect data on EU citizens, and GDPR "applies" to anyone doing that, regardless of your location and the location of the EU citizen [Edit: Thanks to cHao, I now believe I was mistaken on that.]

If you are careful to gather data only in the US, from people located in the US at the time, and you're also careful not to combine it with data that is subject to GDPR, then I think you can keep clean. So, photos of your street clearly are in the US. If the "face recognition" step that you propose adds to the value of your database with publicly-visible data from the EU (such as getting someone's name via matches to their social media pics), then you could be processing data from the EU. "Extra-territorial" claims can be difficult, but at the point you're selling the data hopefully you can afford a lawyer to check this properly.

So, you asked "is this legal in New York City", and I think by that you probably meant "does this break any NY or Federal law"? To which the answer does seem to be "no". However, if you are not careful you might be creating criminal liability in other jurisdictions to which you may wish to travel in future. In that limited sense it's "not legal" to do the thing while located in NY, even though it's "legal in NY"!

I said GDPR "applies", because of course committing an offence with respect to a foreign jurisdiction is arguably no problem, provided you never subject yourself to that jurisdiction. To take another example, if you were shipping illegal drugs into the EU then you might expect the EU to arrest you if they ever had the opportunity, regardless of the fact that you personally had never been there, and so every action of which you're accused took place in New York. The difference there, of course, is that your drug dealing probably would also be an offence in New York, so US law enforcement and courts would take an interest. But the principle stands that it is possible to incur criminal liability in a jurisdiction without ever physically entering that jurisdiction's territory.

If you sell this valuable data into the EU, then your business presence there (for example any bank accounts you use to collect revenues) are potentially at risk. So, you'd want to accept payment using some mechanism located outside the EU, and preferably one that is not subject to EU legal rulings (for example Visa could ban you and/or attempt to reclaim money, if ordered to do so by an EU court, because Visa values its own EU presence). In fact, even if you don't sell this data into the EU, any business presence you have in the EU is potentially at risk if you're fined.

Ultimately, and this is a long way down a rocky legal road, if you have sufficiently serious rulings against you then you could find yourself unable safely to visit the EU. But even supposing you somehow manage to escalate this operation to the point where you're not just facing a GDPR fine that you'll never pay -- you're an international scofflaw, wanted in multiple countries on multiple serious offences, including the EU, UK, and China, none of which happens to be illegal in NY. Then... you would have to take some care when you travel. The US won't extradite you for something that's not a crime in the US, but what's the extradition status between the place you're travelling to, and all of the countries in which you're a wanted criminal?

I realise that this in some sense is similar to asking, "was it illegal in 1940s in the Soviet Union to plan the killing of a defector in America, such as Walter Krivitsky?". The US, given the opportunity, might well have prosecuted that as a crime. But, if he was killed, the Soviets wouldn't, and whoever ordered it presumably wasn't planning ever to go to the US (or not without diplomatic protection). So it's fully legal in the same sense your hypothetical GDPR-violations are fully legal. It would be meaningless nit-picking to say that although legal in the Soviet Union, the plot would incur criminal liability in the USA. The difference is that there's more international co-operation now, and more likelihood you might like to travel internationally for business or pleasure, than was the case for senior officials in the NKVD.

Steve Jessop
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This would probably be legal.

But given the high level of inaccuracy involved in facial recognition, you'd want to have some sort of disclaimer that identifications are tentative and cannot be relied upon standing alone. Otherwise, you might be at risk of negligent misrepresentation liability.

ohwilleke
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You offer no valid basis under Art. 4 GDPR to process the image and facial recognition data of these data subjects, and it is wholly illegal to sell the Personal Information about people at all. As such, your business model is very illegal in the EU.

Trish
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