There is a general assumption that if a venue is open to the public, then you can buy your ticket and enter. The basis of this assumption is that it’s pretty much the way the world has always functioned, not to mention that it would be pretty bonkers otherwise. After all, if you’re in business to sell tickets to your venue, why would you not want people to buy them, watch whatever display you’re putting on and enjoy it, just as you enjoy the sweet, sweet money they’re paying for entry?
But then, Jimmy Dolan, enjoying the wealth his father Chuck amassed, can afford to be a bit more circumspect, controlling, petty some might say. And when Kelly Conlon chaperoned her daughter’s girl scout troop from Jersey to the Christmas show at Radio City, high-kicking for Santa, she learned the price of being a lawyer at a firm that was suing MSG Entertainment.
Before she could even glimpse the Rockettes, however, security guards pulled Ms. Conlon aside and her New York jaunt took an Orwellian turn.
“They 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.”
Foolish, even offensive, policy aside, there is nothing illegal about refusing admission to people who work for law firms suing you, although there may well be a breach of contract issue lurking here given that she purchased a license to enter, they took her money, and then denied her entrance. But it’s not unlawful discrimination because being a lawyer at a firm suing MSG, even if you have nothing to do with the case, is not a protected class. This falls under the heading of “stupid discrimination, but not unlawful.”
Yet, the specter raised by the fact that the nice security folks at Radio City Music Hall picked Conlon out of a crowd sets alarm bells a’ringing.
The guards had identified her using a facial recognition system. They showed her a sheet saying she was on an “attorney exclusion list” created this year by MSG Entertainment, which is controlled by the Dolan family.
Facial recognition software has been roundly condemned in its use by government based upon its potential for error, its intrusiveness and its impairment of privacy. But MSG isn’t government, and they, like government, can buy the software and use it at will, provided they notify people that it’s in use.
It’s one thing to use such software for security purposes, still dubious in many respects but at least its purpose is salutary. Wouldn’t its patrons be better off if the venue kept out criminals, terrorists, hooligans and . . . lawyers?
Its chief executive, James L. Dolan, is a billionaire who has run his empire with an autocratic flair, and his company instituted the ban this summer not only on lawyers representing people suing it, but on all attorneys at their firms. The company says “litigation creates an inherently adversarial environment” and so it is enforcing the list with the help of computer software that can identify hundreds of lawyers via profile photos on their firms’ own websites, using an algorithm to instantaneously pore over images and suggest matches.
While it may be less nonsensical to say that adversarial lawyers create “an inherently adversarial environment” in court, do they do so at the Christmas Spectacular? What about sitting in a seat with a troop of girl scouts presents any threat of an “adversarial environment”? The fact that they can string together words that make no sense under the circumstances does not create a rational argument, no matter what your professor says. It would be silly standing alone. It becomes far more troubling when you realize that this is just Jimmy Dolan flexing his feelz to let lawyers who work for a firm that is suing MSG know that he can make sure they never sit next to Spike Lee.
Facial recognition technology is legal in New York, but lawyers have sued MSG Entertainment, saying the exclusion list is forbidden. The use of facial recognition technology to enforce it has raised an outcry not just from people turned away from Knicks games, but from civil liberties watchdogs, who called it a startling new frontier that demonstrated why the federal government should regulate the technology. The local grudge match has become part of a national debate over the specter of a privatized surveillance state.
As technology advances, and becomes increasingly less expensive to deploy, the ramifications of private entities using facial recognition software to punish people they don’t like are huge. Restaurants refusing to seat members of Congress of the party the owners don’t support? Concert venues denying admission to reddit commenters? Jimmy Dolan not inviting me to his Christmas Party? The possibilities are endless.
The technology, which has grown more powerful and accurate in recent years, has been used sparingly by corporations because of privacy concerns. Retailers have deployed it to identify shoplifters; airports use it to check in travelers and usher them through security; and casinos rely on it to keep out gamblers they think may cheat. But using it to bar a company’s critics is unprecedented, said Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation. He called it a “major jump forward that needs to be treated as radical.”
Of course, legislation can be enacted to prohibit the private use of facial recognition software, but that would mean that uses many people would find legitimate wouldn’t be permissible either. There will inevitably be the one-in-a-billion time a shooter enters and commits a horrific crime, and the cries will ring about why the venue’s security didn’t act to safeguard its patrons. And why shouldn’t private enterprise have the right to use any damn means available to vet who may enter its venue, provided it’s otherwise lawful?