By Andrea Flink, Senior Fellow at Fordham Law School’s Center on Law and Information Policy
Alan Greenberg, an attorney and Upper West Side resident, was eagerly anticipating Jerry Seinfeld’s December show at the Beacon Theatre when Madison Square Garden Entertainment Corporation (MSG) notified him that he and his law firm colleagues were officially persona non grata at all MSG venues – including the Beacon at Broadway and W. 74th Street. The reason? Greenberg’s law firm represents a fan suing MSG, because he was punched by another fan at a Rangers game played in Madison Square Garden.
MSG’s policy of banning all attorneys from firms with lawsuits against the company has been much in the news of late. Still, Greenberg initially thought it was laughable because of how difficult it would be to enforce such a ban on people attending public events. But then he learned that MSG uses facial recognition to identify the attorneys on its enemies list, apparently with photos scraped from the law firms’ own websites. If an attorney on the list attempts to go through security at an MSG property — including the Beacon and Radio City Music Hall — the facial recognition system matches their image to a photo in the company’s database and alerts security personnel, who then escort the attorneys out.
Determined to see Seinfeld, but wary of public confrontation, Greenberg (left) disguised himself by growing a beard and wearing a cap. He also sued MSG Entertainment on civil rights grounds. He got in to see Seinfeld, and though he believes the disguise may have been sufficient to evade the facial recognition system, an MSG spokesperson says he wasn’t active in their system since they took him off the banned list due to a court order issued the week before that temporarily allowed him to attend entertainment events, pending a further hearing.
Since MSG’s policy took effect last June, lawyers from approximately 90 law firms have been banned from the company’s venues. MSG Entertainment says it notified all the affected lawyers, but several say they were not aware and were unceremoniously blocked when trying to attend events. Attorney Kelli Conlon, who had no direct involvement in litigation against MSG, was chaperoning her nine-year old daughter’s New Jersey Girl Scout troop to see Radio City’s Christmas Spectacular when she was escorted out; she walked the streets for two hours while the girls watched the show without her. Nicolette Landi was blocked from using her $376.83 ticket to Mariah Carey’s Christmas concert at Madison Square Garden. And Benjamin Pinczewski said he was “marched out in front of friends and fans like I was a criminal” when security stopped him from entering the Garden for a Rangers game.
MSG also cancelled attorney and Upper West Sider Larry Hutcher’s Knicks season tickets. Hutcher had been a season ticket holder for almost 50 years but made MSG’s enemies list by representing ticket resellers who are suing the company.
An MSG spokesperson told the Rag in an email that lawsuits against the company create “an inherently adversarial environment” in which the company believes it must protect itself against improper disclosure and discovery. MSG also defends its use of facial recognition as a “useful tool widely used throughout the country, including the sports and entertainment industry” to “protect the safety of the people that visit and work at those locations.”
Hutcher, the former season ticket holder, told the Rag that the argument that a lawyer attending an event at an MSG venue could engage in illegal discovery “is, to put it mildly, bull—-t. They’re afraid I’m going to discuss the case with a hot dog vendor?” Hutcher said he believes MSG’s policy is designed to exact revenge and chill other law firms from suing the company. MSG owner James Dolan has a history of exacting revenge on his critics: he famously ejected former Knick Charles Oakley from Madison Square Garden and threatened to ban him for life for criticizing him. Just last week he disinvited Assemblyman Tony Simone, who represents part of the Upper West Side, from dropping the ceremonial first puck at Pride Night at a Rangers game because he joined lawmakers opposed to MSG’s policy.
Whatever the motivation, MSG’s policy would be almost impossible to enforce without facial recognition technology, which has been used sparingly by corporations due to privacy concerns. Face scans, like other biometric information, are stored digitally, and any database, including one with biometrics, is vulnerable to hackers. Albert Fox Cahn, Executive Director of the Surveillance Technology Oversight Project (S.T.O.P.), told the Rag that since people can’t change their biometric identifiers, “when biometric privacy is compromised, it’s violated for life.”
Facial recognition has also been proven to be discriminatory when used on faces of color, women, and transgender persons, leading businesses to deny admission to innocent people when their photos were incorrectly matched to suspected shoplifters or others who had been barred from the premises. Cahn also noted that using facial recognition for crowd surveillance, as MSG is doing, is “exponentially” more error prone than traditional facial recognition searches.
Facial recognition technology has traditionally been used for security purposes, especially by law enforcement, but its use by a private company to target its critics appears to be unprecedented. While there are virtually no laws prohibiting this abuse of privacy, some state lawmakers are exploring options.
Senator Kristen Gonzalez, chair of the Internet and Technology Committee, is alarmed that anyone in New York, especially the ultra-wealthy, has the power to target and surveil whoever they don’t like. She told the Rag, “Right now it’s lawyers, tomorrow it could be anyone. Clearly these lawyers don’t pose a security risk.” She plans to sponsor new legislation “to make sure we have the strongest biometric protections” in the country.
State Senator Brad Hoylman-Sigal told the Rag that he will “absolutely” be proposing legislation to protect New Yorkers’ biometric privacy. “It’s an outrage to think one would be forced to leave a venue because of exercising a first amendment right to be part of a law firm that has litigation against the owner of a venue.” He continued, “Where does it stop? Could you be forced to leave a grocery store or your local restaurant because you might be on some perceived enemies list? Banned from using Uber? It’s corporate bullying at the most basic level.”
Currently, the only applicable biometric privacy law is a city requirement to post a “clear and conspicuous” sign near entrances to businesses, informing patrons that their biometric information is being used. The Beacon has rotating signs outdoors at the far edges of the theatre. They are easy to miss, as they disappear after 10 seconds, replaced by advertisements for upcoming shows. An MSG spokesperson told the Rag that there are also always paper signs atop stanchions, including when Greenberg attended, though Greenberg told the Rag he did not see any such signs.
While Cahn believes that the disclosure requirement is an “important first step,” he believes it is “insufficient to address the full scale of the threat posed by biometric surveillance.” He told the Rag that S.T.O.P has been pushing legislation before the City Council that would outlaw the use of biometric surveillance in places of public accommodation, including MSG venues.
Last week upstate Assemblymember Aileen Gunther reintroduced the Biometric Privacy Act for the fourth time, which would require that private entities notify subjects and obtain a written release before collecting biometric information, though there does not appear to be consensus yet on this bill.
The court in Hutcher’s case ruled that while MSG can refuse to honor a valid ticket to a sporting event, it must allow attorneys from his firm to attend concerts and theatrical events under a 1941 civil rights law enacted to protect theater critics from retaliation for writing bad reviews. Hoylman-Sigal and Simone introduced a bill last week to add sporting events to that law, which currently protects admission to “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses.”
An MSG spokesperson told the Rag that the narrow exception requiring it to grant admission to concerts and theatrical events only applies to attorneys at the three law firms (including Greenberg’s firm) that have sought and obtained injunctive relief, and even those attorneys are still barred from sporting events. The spokesperson stressed that all attorneys involved in litigation against MSG that have not obtained injunctive relief are banned from all events at all venues
On January 24th, Attorney General Letitia James notified MSG that its policy could violate human rights laws, including laws prohibiting retaliation, and may dissuade lawyers from taking on legitimate cases against the company to avoid the ban and continue attending MSG events. MSG has until February 13th to respond to those concerns and confirm that its use of facial recognition technology is not discriminatory.
If Attorney General James does not prevail, MSG and other companies could potentially expand use of facial recognition beyond lawyers, for example to ban anyone who posts negative reviews about a business on social media from attending events that don’t qualify as entertainment under the 1941 law. Cahn said, “If a mom can be kicked out of a show with her daughter’s girl scout troop, it’s hard to imagine anyone being safe from corporate retaliation in a world where anyone’s images can be weaponized against them.”
This article is part of a series exploring Modern Threats to Privacy. Other stories include: