An act to amend the vehicle and traffic law, in relation to establishing a congestion pricing program in the city of New York; to amend the public authorities law, in relation to establishing a metropolitan transportation authority traffic congestion mitigation fund; to amend the tax law, in relation to eliminating an exemption from the parking tax for certain residents of the city of New York; to amend the vehicle and traffic law, in relation to establishing residential parking systems in the city of New York; to amend the public officers law, in relation to confidentiality of certain public records; to amend the New York city charter and the administrative code of the city of New York, in relation to a transit enhancement fund; to amend the tax law, in relation to the congestion pricing fee credit; and providing for the repeal of certain provisions upon expiration thereof.

The NYCLU has taken no position on the concept of a congestion pricing plan for Manhattan’s central business district. However, in public testimony presented before the New York City Traffic Congestion Mitigation Commission (the “Commission”) the NYCLU has stated that absent constraints upon the scope and operation of the video surveillance system, it could significantly undermine the personal privacy rights of New Yorkers.

The Commission agrees with the NYCLU’s position. Its final report recommended that the city “be required to take appropriate steps to protect the privacy of drivers, such as restrictions on the handling of vehicle data and the provision of an anonymous payment system.”

The proposed Traffic Mitigation Act, however, fails to provide adequate protections of personal privacy. The bill before the legislature includes a provision that seems intended to adopt the Commission’s recommended privacy protections.

This provision provides for (1) deletion of a vehicle’s identifying information once payment has been resolved, (2) establishment of procedures by which one could enter the congestion pricing zone by making an anonymous payment, and (3) deletion of vehicles’ identifying information from data used for research related to the congestion pricing system.

However, the privacy-protection provisions in the proposed legislation merely track the language of the Commission’s report. It lacks the clarity and precision of a statutory directive; this vagueness will create confusion regarding both the meaning and implementation of the bill’s privacy protections.

What’s more, the bill’s principal directive requiring the city to protect the privacy of persons who travel in vehicles that enter the congestion pricing zone also employs vague and imprecise language: The city shall: (a) take appropriate steps to address privacy concerns of drivers entering the congestion pricing zone and to mitigate such concerns by establishing controls on storage and sharing of vehicle data.

This language weakens and obscures the Commission’s finding that the protection of personal privacy is an important policy objective in the design and implementation of a congestion pricing plan. Rather than direct the city to adopt and enforce effective, objective measures to protect the privacy of drivers and their passengers entering the congestion pricing zone, the bill predicates the need for protective measures upon an inquiry as to drivers’ subjective views on privacy.

What’s more, the bill contemplates the “mitigation” of harm caused by invasion of privacy; not its prevention. As a practical matter, this language will undermine the creation and implementation of effective privacy protections pursuant to the proposed Traffic Mitigation Act, as well as rules and regulations promulgated pursuant to that law.

This privacy-protection provision of the bill also adopts, nearly verbatim, the following guidelines recommended by the Commission: [Privacy protection measures] shall include complying with privacy standards of the E-Z Pass Interagency Group, E-Z Pass customer service centers, applicable city and state laws regarding sharing of vehicle and private information with third parties and additional measures to protect privacy . . .

This reference to existing privacy protections and to the need for further protections offers little authority or guidance in enforcing protections of personal privacy when implementing the city’s traffic congestion mitigation plan. Current law provides few clearly applicable privacy protections. For example, the NYCLU has been unable to locate or obtain privacy standards that apply to personal information obtained through the E-Z Pass system.

In seeking this information, we have had to resort to a Freedom of Information Law request. The NYCLU urges the state legislature to adopt the Commission’s recommendation by incorporating the following privacy protections in the proposed Traffic Mitigation Act. Privacy Protections.

The city shall adopt and enforce measures to protect the privacy of drivers and their passengers who enter the congestion pricing zone. Such privacy-protection measures shall include (a) a prohibition on capturing images or information other than information on vehicles’ license plates, (b) an anonymous payment option that permits vehicles to enter the congestion pricing zone without being recorded, provided payment is made; (c) a prohibition on the use or dissemination of vehicles’ license plate information except as required to collect payment or pursuant to a court-ordered subpoena; (d) destruction of vehicles’ license plate information immediately upon resolution of billing and payment, (e) deletion of vehicles’ license plate information from records maintained for research purposes, and (f) oversight procedures to ensure compliance with the aforementioned privacy-protection measures. Absent such amendment the NYCLU opposes passage of S.7243-B, the Traffic Mitigation Act.

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