Legal Brief: Barred for Life

Feb. 9, 2023
James Dolan is using facial recognition technology to target his business enemies. Is it legal?

This article originally appeared in the February 2023 issue of Security Business magazine. When sharing, don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter.

Imagine you are a kid planning your tenth birthday party. You want to invite Tommy, Bobby, Susie and Jenny, but you are not so sure about Frank and Betty, who were mean to you in gym class. So, Frank and Betty are excluded and cannot go to your jumpy castle party.

Now, imagine you are 60 and a billionaire. Instead of planning jumpy castle birthday parties, you own the New York Knicks, New York Rangers, Madison Square Garden, Radio City Music Hall and a variety of other venues and restaurants. You have forgiven Frank and Betty, but you have made a few new enemies (and perceived enemies). Just like you barred Frank and Betty when you were 10, you now have barred dozens, if not hundreds, of people (most of whom you do not even know) from attending events at your venues, including Madison Square Garden and Radio City Music Hall.

To be sure these barred people do not slip past security, you deploy an advanced facial recognition system that compares known images of these people against a scan of their face.

In truth, this is not you. It is billionaire James Dolan.

Selective Bans

Madison Square Garden Entertainment (MSG), owned by Mr. Dolan, has been using facial recognition technology for years to manage security risks, such as fans with a history of unruly behavior or others who may be disruptive. Anyone who enters the venue is subject to scanning.

Now, the company is taking its use of this technology to whole new level, by recently enacting a policy forbidding anyone in active litigation against the company and its affiliates from entry to the company’s venues. The latest implementation of this policy also applies to any attorneys of any law firm which is litigating against Mr. Dolan or his companies, which applies to all attorneys in the law firm – whether they are working on those specific lawsuits or not.

One woman, a lawyer at a New Jersey law firm, was pulled out of the famous Rockettes show at Radio City Music Hall. She was there with her daughter and a group of Girl Scouts. Another lawyer, who refused to provide security with her identification, was removed from Madison Square Garden – but they already knew who she was via face scan. Neither lawyer plays any role in litigation against Dolan or his companies.

The ban itself has led to an ongoing suit against MSG from dozens of attorneys and their firms. The judge on the case ruled that MSG could, for the most part, revoke and refuse to sell tickets to the firms, but that they cannot be denied entry if they arrive with a valid ticket. This result did not satisfy anyone. So, both plaintiffs and defendants have appealed.

MSG has openly embraced the policy. They claim attorneys are allowed back once litigation is resolved. “MSG instituted a straightforward policy that precludes attorneys from firms pursuing active litigation against the company from attending events at our venues until that litigation has been resolved,” the company said in a statement.

Is it Legal?

The claims that the policy is in furtherance of providing a safe and secure environment for guests is not credible, as the targets of the technology do not earnestly pose a risk to the safety and security of the venue.

While the policy may be vindictive, that does not make it illegal. Private property owners have the legal right to ban patrons from their venues. So far, three states have enacted laws pertaining to data collected with facial recognition software: Texas, Washington and Illinois. The strongest law, in Illinois (which was the subject of some of my prior columns), requires that companies obtain written consent from individuals before collecting such data and prohibits them from selling or profiting from the information.

At a Chicago theater owned by MSG, for instance, the company cannot collect data in the manner it does at the Radio City Music Hall, since it does not obtain written consent. There is no such law in New York. Similarly, there is no applicable federal legislation and the new Congress is unlikely to pass a bill on this issue (or, perhaps, any meaningful issue).

As a former prosecutor, I favor the use of these powerful technologies to prevent and solve crimes and promote the safety and security of all citizens; however, the use here by MSG serves neither of these purposes. Thus, it is worthy of scrutiny and perhaps worthy of regulation.

At the same time, there is no constitutional right to watch a Knicks or Rangers game in person. As long as patrons are not being barred due to their race, gender, national origin, age, religion, or other protected classes, they may not have recourse. Lawyers are not a protected class. Few will have sympathy for them.

Nevertheless, the security community should advocate for the responsible use of all security technologies – so that those opposed to their use are not given fodder for their opposition. MSG may be within its rights, but it is not helping in the fight for broader acceptance and adoption of responsible facial recognition technologies.

Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected]

About the Author

Timothy J. Pastore, Esq.

Meet Timothy J. Pastore

Timothy J. Pastore, Esq., is the newest columnist to join the Security Business magazine family. He is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. 

Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. As a JAG, in particular, Mr. Pastore was legal counsel to the Air Force Security Forces and Air Force Office of Special Investigations.

Mr. Pastore has represented some of the largest companies in the security industry, including Protection One, Comcast, Charter, Cox, Altice, Mediacom, IASG, CMS and others. He regularly provides counsel on risk management, contracting, operations, licensing, sales practices, etc. Mr. Pastore also has served as lead counsel in courts throughout the country in dozens of litigation matters involving the security industry.

Among other examples, Mr. Pastore led the successful defense at trial of cable giant Comcast in a home invasion case in Seattle, Washington. The case received significant press attention and was heralded by CVN as a top-ten defense verdict.

Mr. Pastore is a graduate of Bucknell University and Boston College Law School.

Reach him at (212) 551-7707 or by e-mail at [email protected].