MSG vs. NY: The Clash over Facial Recognition and the Need for Regulation
Madison Square Garden Entertainment Company (the Company) has begun using facial recognition technology to identify and eject attorneys involved in adverse litigation from events held at its venues. While Madison Square Garden and other venues owned by the Company have used facial recognition technology (FRT) for security since 2018, the issue of these retaliatory ejections came to a head around the 2022 holiday season. A New Jersey attorney, who was chaperoning her daughters’ Girl Scout troop to a Rockettes show at Radio City Music Hall, was ejected from the premises because her firm was involved in personal injury litigation against a restaurant owned by the Company. Other attorneys have been ejected from various shows, including a concert, a New York Knicks basketball game, and a New York Rangers hockey game.
Just last month, New York State Attorney General Letitia James sent the company a threatening letter, raising concerns that the Company’s usage of the technology “may violate the New York Civil Rights Law and other city, state, and federal laws prohibiting discrimination and retaliation for engaging in protected activity.” The Attorney General (AG) gave the company just under three weeks to justify its policy and to explain why it does not violate the law. One of the laws she cited, N.Y. Civ. Rights Law § 40-b—which prohibits “wrongful refusal of admission to and ejection from public entertainment and amusement”—was enacted in 1940 to prevent Broadway theaters from banning critics they didn’t like.
New York Knicks fans will not be surprised to learn that James Dolan—the Company’s CEO and the owner of the Knicks—has stood by his company’s policy over the matter. In an interview, he lambasted AG James and other elected officials who have raised concerns as “self-interested politicians.” And, in response to the State Liquor Authority’s warning that it may revoke Madison Square Garden’s liquor license over the policy, he threatened to cut off alcohol sales at future New York Rangers games. Dolan claims that the Company is entitled to enact this retaliatory ejection policy because the company and its venues are private enterprises. To defend this claim, he made a vague reference to the Bill of Rights and property ownership but cited no other legal basis.
I believe that this policy does violate the spirit, if not the letter, of anti-discrimination and anti-retaliation laws. But I do not think that what Dolan is doing is illegal. There is no language in New York state law that prohibits a business owner from using facial recognition technology to eject adverse attorneys. As tacit acknowledgement of this fact, New York state senators Brad Hoylman-Sigal and Liz Krueger—along with Assemblyman Tony Simone—introduced a bill to add sporting events to the list of venues covered by the above-quoted N.Y. Civ. Rights Law § 40-b. While this is a first step, it fails to adequately address the problems raised by the Company’s use of facial recognition technology.
The Company’s ejection policy is not simply a matter of wrongful refusal of admission to public entertainment; it has much broader reaching implications on the proper usage of FRT. The New York State Legislature has an opportunity here to spearhead state-level guidelines on the responsible and ethical use of FRT. Existing proposals are focused on banning the use of FRT by law enforcement and landlords, but there is currently no proposal focused on regulating the private sector’s use of the technology.
But limiting business owners’ ability to use FRT to discriminate against customers, whether based on adverse litigation, personal grievance, or a protected class should be a priority for any FRT regulation. At its core, a bill to regulate FRT should sharply curtail the permissible uses of the technology. Commercial usage of FRT should be limited to security purposes and potentially the provision of VIP services within the walls of a given establishment. Some worthy exceptions can be made to this, such as assisting alcoholic or gambling addicts in enforcing self-bans from liquor stores or casinos. However, the key point is that sale of data collected through FRT should be entirely prohibited. Indeed, the only external entity that should be permitted to access a private enterprise’s facial recognition data is law enforcement armed with a court order. A well-constructed regulation bill could handle the problem of Mr. Dolan’s retaliatory bans, maximize the benefits, minimize the potential for harm, and put New York at the forefront of solving the 21st century’s legal challenges.
It is important that we begin regulating this technology sooner rather than later. To illustrate the need for this urgency, consider the various poster advertisements you walk by on the street. Now, imagine those advertisements scanned the faces of anyone who walked by and changed their displays based on the individual’s purchasing preferences, social media data, and other locations that the person’s face has been scanned. Or consider the possibility a lender who refuses to give a loan because they find their potential customer’s social media, purchasing history, or the locations that they frequent to indicate a credit risk. Or consider a business that refuses service because they disapprove of an individual’s private political views. The dangers of facial recognition technology range from the eerie to the exploitative, so leaving them unregulated presents an unnecessary risk of abuse.
While James Dolan’s petty retaliations may seem insignificant, they are likely a harbinger of much more serious challenges posed by FRT and New York should act to comprehensively address the issue now.
Georgetown Law Technology Review Staff Editor; Georgetown Law, J.D. expected 2023; The George Washington University B.A. 2018.