Lockport School District files to intervene in NYCLU lawsuit

The Lockport City School District has formally moved to intervene in a lawsuit filed by the New York Civil Liberties Union in an effort to overturn a New York State Department of Education ruling that allowed the district to begin using its facial and object recognition security system. 

Last month, the New York Civil Liberties Union filed a lawsuit against the state education department, arguing that the facial recognition capable surveillance system violates state education privacy laws. 

In its lawsuit, the NYCLU, along with two Lockport residents, ask an Albany State Supreme Court judge to overrule the state education department's decision and force the department to shut Lockport's system down. 

Although the district's system is the focus of the lawsuit, the district itself was not named as a party to the initial claim. 

In Friday court filings, the district's attorneys Jeffrey Swiatek and Charles Malcomb, both with firm Hodgson Russ, argued that their client should be allowed to intervene in the case. 

"The litigation concerns the district's installation and use of facial recognition software as part of its enhanced security system," the attorneys wrote. "The district is referenced in nearly every paragraph of the verified petition. The object of this entire proceeding is to prevent the district from utilizing its AEGIS System. And, most directly, petitioners have sought an order from this court directing the district to de-activate the AEGIS System. The outcome of this action would directly affect the district's ability to ensure the safety of its school community. The district request intervention to defend this proceeding, respond to petitioners' allegations, and to seek dismissal of the verified petition in its entirety."

In their legal filings, Swiatek and Malcomb contend that student data is not used by the system as it does not retain biometric measures.  

"The AEGIS System takes biometric measurements of all faces that within the frames of the district's security cameras ... such measurements are not associated with a particular individual, but are anonymously compared against the AEGIS System database of non-student individuals who are determined, pursuant to district policy, to present an immediate or potential threat to the safety of the school community," Swiatek and Malcomb wrote. 

The Hodgson Russ attorneys further argue that none of the biometric information is recorded or preserved in any way. 

"If the AEGIS System's analysis of security camera images matches an individual visible in a security camera frame with a non-student individual in the database, the biometric data is not retained, but the photographic image from the security is presented, along with the location (s) where the person was observed with a data and time stamp, to appropriate District officials for verification," the district's attorneys argue. 

Swiatek and Malcomb further contend that the November letter from the state education department does not amount to a reviewable determination. The letter, they argue, was an extension of the state education department's chief privacy officer using their authority to require the district to undertake a risk assessment. The also contend that the letter was an acknowledgment that the district complied with the official's request.

The district's attorneys suggest the state education department does not have the authority under state education law dealing with student data and privacy to prevent the district from using the system.

The state education department is being represented by the New York State Attorney General's office in the case. 

Lockport administrators had announced their intentions to begin testing the Aegis system in late May 2019 and were told by the state education department to not use the system while privacy concerns lingered. After months of back and forth with the state, the Lockport school board changed its system use policy and removed students from the list of persons eligible for inclusion in the Aegis database of individuals whose presence on school property would trigger an alert.

NYSED approved of the policy revision and signed off on the district’s use of the system in November. The district activated the system on Jan. 2.

The civil liberties union argues that Lockport's system, powered by the Aegis software suit, violates the state education privacy laws in that the system does use student data, and that the New York State Education Department is wrong when it's arguing the system doesn't use student data. 

The two plaintiffs in the civil liberties union lawsuit are district residents James Shultz and newly elected school Trustee Renee Cheatham.

In her affidavit, Cheatham, an African American woman, expressed concern in the inaccuracies and racial bias that facial recognition technology is reported to have. She further adds that the money spent on Aegis and the cameras could have been better spent on purchasing learning technology for district students.  

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