t’s the season of merriment and good cheer, right? Well, not if you are an attorney who (or if you work for a law firm that) has sued MSG Entertainment – the folks who run Madison Square Garden and Radio City Music Hall, as well as other venues in New York City and elsewhere.
According to an article on the New York Times website last Thursday (in the print edition on Friday, December 23, 2022), https://www.nytimes.com/2022/12/22/nyregion/madison-square-garden-facial-recognition.html, and as reported elsewhere, the company is using facial recognition software to identify folks on an “attorney exclusion list.”
Here’s the deal: The company uses biometric computer software that identifies lawyers from their firms’ websites photos. It then uses an algorithm to make a match. If you have – or your law firm has – sued the company, you are identified as you try to enter the venue and told you cannot come in, even if you have purchased a ticket for the event.
The NYT’s article tells the story of Kelly Conlon, a personal injury lawyer from New Jersey who was taking her daughter’s Girl Scout troop to see the Rockettes at Radio City Music Hall. At check in, security guards pulled her aside: ‘“[t]hey told me that they knew I was Kelly Conlon and that I was an attorney,’ she said this week. ‘They knew the name of my law firm.”’ Ms. Conlon is not personally representing anyone adverse to MSG Entertainment. Her firm, however, is suing one of the company’s restaurants in a personal injury case. So, no Rockettes for Ms. Conlon. She got to window shop at Macy’s while the scouts got in to see the “Christmas Spectacular.”
The ban was first reported in the Times this past October when an attorney (who had season tickets since the 1970’s) couldn’t see a Knicks game at the Garden because the company banned him and his entire 60 attorney firm from any events. The reason, says MSG entertainment, is that “litigation creates an inherently adversarial environment.” It notes that “[a]ttorneys will be welcomed back to our venues upon resolution of the litigation.”
If learning of this petty, vindictive action by a company bothers you, I understand. Lawsuits challenging the ban have been filed. But, like it or not, attorneys are not a protected class and as a private company MSG Entertainment can use biometrics in New York to decide who it lets on its property to use its services. There’s no law against it – yet.
I’ve buried the lede here, though. Here’s what this blog is really about. Businesses are using biometric data more frequently. In addition to facial recognition, there’s fingerprint scanning and voice recognition too.
But note – and this is an important note – a company cannot use the technology in Illinois, where a state law prohibits use of biometric information without a person’s consent and provides a private cause of action for its violation. There have been a number of cases interpreting the Illinois law, including the Seventh Circuit’s important decision in Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020). Biometric laws also exist in Texas and Washington, and more states are considering passing restrictive laws on the use of biometrics.
The takeaway? Before an employer starts using biometrics for its timekeeping system, entry to the worksite, or any other employee requirement, be sure to check the law that applies to the employer’s location. And, perhaps equally important, remember the adage that “just because you can doesn’t mean you should.” (Apropos of nothing, Google attributes that quote to Sherrilyn Kenyon).