How Madison Square Garden Entertainment’s “Lawyer Ban” Restricting Venue Attendance Raises Concerns of Privacy, Discrimination and Protections of Public Criticism
By Ethan Krasnoo and Ariana Zhao
Since summer 2022, Madison Square Garden Entertainment (MSGE) has banned attorneys involved in litigation against the company from its venues, which include, among many others, Madison Square Garden and Radio City Music Hall. To justify this decision, MSGE has cited Rule 4.2 of the New York State Bar Association’s Rules of Professional Conduct, which bars contact between attorneys and their adversary if they are represented by counsel.[1] In a litigation proceeding where the adversary is an organization, this prohibition extends to employees of the organization as well. The crux of MSGE’s argument is that attorneys working on legal matters against MSGE may unlawfully speak with employees of MSGE while attending a sporting event or concert at a MSGE venue. While the legality of this reasoning has been debated, another consideration warrants discourse: MSGE’s manner of enforcing and sustaining its ban.
MSGE first began using facial recognition technology in its venues in 2018, claiming the systems would increase security. New York Assembly Bill A6787D signed into law in 2020 by former governor Andrew Cuomo states that “facial recognition shall mean any tool using an automated or semi-automated process that assists in uniquely identifying or verifying a person by comparing and analyzing patterns based on the person’s face.”[2] This technology has proven to be particularly useful in enforcing MSGE’s attorney ban by using photos of the attorneys from their firms’ own websites to identify them during its venues’ security checks. But while facial recognition has been around for decades – our own phones employ such technology – few laws exist to regulate its use in public spaces or for commercial use.
In fact, New York’s Biometric Identifier Information (BII) law, which notably bans the sale of biometric data and requires appropriate posted notice in “simple language” disclosing the use of such technology, only went into effect on July 9, 2021.[3] Prior to that, customers could have their faces scanned and the produced footage could be stored or sold without the customers ever knowing it. This warrants several legal considerations from the viewpoint of privacy, anti-discrimination, and First Amendment laws.
Privacy Considerations and Related Protections
Following MSGE’s widely reported ban and use of facial recognition to enforce it, momentum for biometric privacy laws is certainly building. However, to date there are no federal laws that explicitly address facial recognition software, leaving it up to the states to determine how and when to regulate such technology. New York is one of few states that has begun addressing this growing concern through its BII law, which is a part of the New York City Administrative Code Title 22, Chapter 12. It offers the following protections:
- Any commercial establishment, defined as a place of entertainment, a retail store, or a food and drink establishment, employing technology that creates biometric identifier information of its customers must disclose this process by placing a clear and visible sign near its entrance(s);
- It is unlawful to engage in any kind of transaction whereby anything of value is gained in exchange for biometric identifier information;
- If any of the above are infringed, an aggrieved person must first provide written notice to the commercial establishment notifying it of its alleged violation. If, within 30 days, the establishment corrects the violation, provides the aggrieved person written confirmation stating as much, and no further violations occur, no action can be initiated. If the establishment fails to correct the conduct within this time frame, the aggrieved party may commence a court action and may recover:
a. Damages of $500 for each violation of 1. (§22-1202a);
b. Damages of $500 for each negligent violation of 2. (§22-1202b);
c. Damages of $5,000 for each intentional or reckless violation of 2. (§22-1202b);
d. Reasonable attorneys’ fees and costs;
e. Other relief, as the court may deem appropriate.[4]
However, it’s also worth noting that nothing in this law applies to government agencies and their employees or agents engaging in the use of this technology, or financial institutions.
While these protections afford customers some right to their privacy, a few considerations remain. Particularly in terms of the use of facial technology beyond MSGE’s ban of the attorneys involved in active litigation against it and the precedent this might set. For one, the simplicity of creating a profile in a database to identify someone’s face makes this technology particularly concerning. Facial recognition relies on the uniqueness of human faces, meaning that once a person’s biometric data has been uploaded, it’s unlikely to ever be fully erased. MSGE itself simply used the attorneys’ headshots, which, while publicly accessible, were not intended to be uploaded to a database for biometric scanning.
In addition to the permanence of biometric data, this technology is still a fledgling, meaning that it is not yet infallible. In particular, facial recognition technology has been shown to misidentify women or people of color, creating a concern regarding implicit gender or racial bias.[5]
Discriminatory Practice or a Business Protecting Itself?
New York Civil Rights Law and other city or state laws prohibit discrimination and retaliation for engaging in protected activity or being part of a protected class, such as race, color, national origin, sex, religion, age, or disability. While job title or employment field – the categorical bases underlying MSGE’s ban on attorneys – are not protected classes, the Office of the Attorney General (OAG) raised the concern in a letter dated January 24, 2023, that such practice of banning a group of individuals due to a common denominator is contrary to the “spirit and purpose of such civil rights laws.”[6]
Aside from the ban potentially being discriminatory, the OAG also expressed concern that forbidding lawyers entry to popular venues may dissuade them from taking on cases that may lead to litigation against MSGE. Indirectly encouraging complainants and their attorneys to drop their lawsuits in order to regain access to MSGE’s many venues may violate New York laws prohibiting retaliation.[7]
Protecting the Right to Public Criticism
The final legal consideration addresses the concern that MSGE’s ban could set a precedent whereby powerful companies are able to target and effectively bar any critics or rivals from their premises. New York has historically established law which prohibits such activity. In fact, some attorneys seeking access to MSGE despite the ban have tried to rely on such a law enacted in April 1941 as a loophole to gain access to MSGE venues. That law specifically guarantees admittance to entertainment venues for anyone over the age of 21, with the only exceptions being for offensive behavior. This law was created to protect critics from being denied entrance to venues they had criticized, thereby protecting their First Amendment right to freedom of expression.
Aside from revitalizing discussions concerning the barring of critics from public venues, MSGE’s lawyer-ban and its use of facial recognition technology has kicked into gear the discourse around the use of such technology in commercial spaces. Any legal developments targeting the field of biometric identifier information should be closely monitored for compliance.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Ethan Krasnoo who counsels clients in areas of complex commercial litigation, arbitration, mediation and dispute resolution, and employment, intellectual property, and entertainment and media. Mr. Krasnoo is admitted to practice law in New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit and United States Tax Court.
[1] NYSBA NY Rules of Professional Conduct (2021) (nycourts.gov)
[2] NY State Assembly Bill A6787D (nysenate.gov)
[3] Chapter 12: Biometric Identifier Information (amlegal.com)
[4] Id.
[5] Ongoing Face Recognition Vendor Test (FRVT) Part 6A: Face recognition accuracy with masks using pre-COVID-19 algorithms (nist.gov)
[6] Microsoft Word – Ltr to MSG KSR draft 1.22.24 (ny.gov)
[7] See NYSHRL § 296(7) – Legislation | NY State Senate (nysenate.gov)