The Daily - The ‘Enemies List’ at Madison Square Garden

Episode Date: January 18, 2023

With little warning or regulation, companies are increasingly using facial recognition technology on their customers — as a security measure, they say.But what happens when the systems are actually being used to punish the companies’ enemies?Guest: Kashmir Hill, a technology reporter for The New York Times. Background reading: Madison Square Garden Entertainment, the owner of the arena, has put lawyers who represent people suing it on an “exclusion list” to keep them out of concerts and sporting events.Some have undermined the company’s ban by using a law passed in 1941 to protect theater critics.For more information on today’s episode, visit nytimes.com/thedaily.Transcripts of each episode will be made available by the next workday.

From New York Times, I'm Michael Barbaro. This is The Daily. Today. With little warning or regulation, more and more companies have begun using facial recognition technology on their customers, they say, as a security measure. So what happens when it's actually being used to punish a company's enemies?

My colleague, Kashmir Hill, tried to find out. It's Wednesday, January 18th. So, Katra, tell me about this reporting that you have been doing really in our own backyard, just a few blocks south of where you're now sitting in Midtown Manhattan. So last month I was talking to Nicolette Landy. She's 29. She lives in New Jersey. She loves going to live shows, particularly at Madison Square Garden, this iconic arena here in New York City. She went to six shows in October alone. That is a real commitment. Yes. She likes going out. And her boyfriend had gotten her tickets to see Mariah Carey, who has this kind of, you know, legendary Christmas show that she does every year.

The one and only. All they wanted for Christmas was Mariah Carey. Well done. And so they bundle up, they head to Madison Square Garden. There's a lot of security that you kind of go through to get into a show. So they're walking through the metal detectors, and Nicolette gets pulled aside. And a security guard asks to see her ID. Never a good sign. No. She hasn't presented her ticket yet or anything. She doesn't really know why she's been pulled aside.

But she gets out her ID, shows it to them, and this confirms her name. And her name is on a watch list at Madison Square Garden. Hmm. And so what does that mean for her? She is not allowed to go to the concert. Huh. Her boyfriend can go, but she can't. So quite crushingly, she is being told,

you cannot go in, you cannot see Mariah Carey. Turn around, go home. Yes, she is turned away. And her boyfriend didn't go either. Right, which makes him a gentleman, I guess. So how did that happen? So as she walked through the metal detector, there was a camera there, and it had a facial recognition system. And so it had scanned her face, and that is why she was pulled aside.

And then to make sure she wasn't a doppelganger, that's why they asked for her ID to confirm that she was indeed Nicolette Landy. Hmm. That's why they asked for her ID to confirm that she was indeed Nicolette Landy. Hmm. So there's a lot going on here. But let's first talk about the story behind this facial recognition software that's being used inside Madison Square Garden. So Madison Square Garden has been using facial recognition technology going back to 2018, first used at the Grammy Awards. And it has primarily been using it to identify security threats. So fans who have been disorderly, who have been violent, who are essentially banned from coming in for safety reasons. Mm-hmm.

Yeah, that's how I think of facial recognition software as being a very intense but important layer of security. Yes, and Madison Square Garden, you know, this is in the middle of New York. It's right on top of Penn Station. It is a place where you want to have good security. It's a lot of people. It's the kind of place that could be targeted, and so they do have pretty intense security there. Right, which really does make sense. So how did Nicolette fit into these security protocols at Madison Square Garden? Why would she have been seen as a danger? So Nicolette was, is not a kind of traditional security threat. She is a lawyer. And she didn't know it when she was

stopped. But she was caught up in this fight that was happening between the company that operates Madison Square Garden and her law firm. Her firm was representing an individual in a personal injury lawsuit against one of Madison Square Garden's restaurants. And Nicola is not involved in this lawsuit at all, but she does work at the firm. And the thing to know about Madison Square Garden, beyond the fact that it's just one of the most famous arenas in the world. So anybody who comes to the garden disrespectful to the staff and the fans, they're going to be ejected and they're going to be banned. Is that the company that owns it is run by this billionaire, James Dolan. You want to not come to any more games? Who is kind of famously temperamental.

You know what? Enjoy watching him on TV. Has a history of these... Sell the team! Anything I can sell the team? Public feuds with fans of the team. He owns the Knicks. He has banned fans in the past. Now everybody looking over there.

Apparently there's a Charles Oakley over there. Jim Dolan today banned Charles Oakley from Madison Square Garden. You can't make this up. Including Charles Oakley, this famous past Knicks player. The Knicks claim Oakley was ejected after making negative comments to Knicks owner James Dolan. He banned Charles Oakley from Madison Square Garden. Charles never should have made it to his seats. And we're doing things to remedy that, to make sure that that doesn't

happen again with anybody. He takes these things very personally. Right. Relishes a good personal battle. Yes. And so Madison Square Garden sent letters to the 90 or so law firms that currently have lawsuits against it and said the lawyers at their firms are not welcome at the company's venues. Hmm. Even if the lawyer is not involved in litigation against Spaz and Square Garden or any of the companies associated with it. Just working for one of these law firms is enough to get you banned from the venue. Right. And the justification, according to the company's officials,

is that those lawyers might be gathering evidence for their lawsuits in an inappropriate way. But these lawyers say that this is just clearly a way of discouraging them from filing any future lawsuits and that it is really just, it's revenge. It's corporate revenge. Right. I mean, this does seem to be a pretty unusual use of this technology, the facial recognition software, as well as blacklists in general.

Yeah, this is an unusual practice. I mean, even the lawyers have said it's a very creative ban. And it's only possible because of facial recognition technology. You know, it would not, otherwise you wouldn't be able to tell when somebody walked through the door who their employer was. But in this case, Madison Square Garden has this list of firms and thousands of lawyers that work for the firms, and they're able to get their photos off their firm's own websites and then spot them as they walk through the door.

It is very much a modern and really futuristic application of this technology. Dystopian is what some lawyers have called it. Right, because I'm just trying to imagine a security guard or even hundreds of security guards trying to do what this facial recognition software does, and you just can't fathom it. I mean, people would slip through. Yeah, I mean, they could likely keep them from buying tickets, right? Like, they could have their name on the list, make sure they don't buy the tickets. But to be able to prevent them from having friends buy them tickets, this they can only do with a face watch list. I can't imagine this is how the people who designed this very powerful software intended it to be used, right? As a way to keep out a company's enemies from a concert hall.

Yeah, I mean, when I've talked to facial recognition vendors, they've said, you know, this is for security purposes, this is to keep people safe, or it can be used in a customer service kind of way to greet people by name. This is not a use case that vendors have talked about. And honestly, I was very surprised to see a company doing this because it is so far out there. I mean, facial recognition is already a kind of controversial technology. And to wield it in this way is really boundary pushing. And I was surprised to see a company doing it and being so forthright about what they were doing. And the question, of course, is, is it legal? Yeah, I mean, if you're going to go to battle against a bunch of lawyers, you should be prepared for them to throw the law back at you.

And is that what's happening? That is what's happening? That is what's happening. The lawyers are suing Madison Square Garden. And those cases are just making their way through the court system. And how this turns out is going to have big implications for how the technology gets used in the future. We'll be right back. Cashmere, what does the law actually say about when facial recognition technology can and can't be used? And I should say, we have talked with you a lot on the show about how when it comes to technology, the law tends to lag pretty far behind the technology itself.

So yeah, when it comes to federal law, there is still nothing that really directly applies to facial recognition technology. So we can set that aside and just look at state laws. So Illinois and Texas are the two states that have biometric privacy laws that say you're not supposed to use facial recognition technology without the consent of the person whose face information you're using. Hmm. So what happened at Madison Square Garden in New York, it sounds like would not be legal in Texas or Illinois unless the venues had sought permission from someone like Nicolette.

Right. And Madison Square Garden actually owns a theater in Illinois, the Chicago Theater, and the ban applies to that theater, but they are not using facial recognition there to enforce it. Ah, how fascinating. So that theater can ban all the lawyers it wants, but it will not have the assistance of this technology. Exactly. And what about New York, where this behavior occurred and where I assume many of these lawyers have filed their lawsuits. So when it comes to technology, New York only has a fairly new biometric identifier law that says that if you're a company using it, you need to tell people. There needs to be a sign basically saying facial recognition technology used here. That's not the same as asking people

for permission to use it. That may mean just putting up a little sign somewhere in the vast hallways of Madison Square Garden saying, P.S., we're using facial recognition technology. Exactly. And you have to say why you're using it. And so they do have signs at their venues that say, facial recognition technology used here to ensure your safety. Well, given that fact, what are the lawyers

arguing in their lawsuits against Madison Square Garden? What's the case they're making that what happened to them is improper? So the lawyers found this obscure law from 1941. It's a New York civil rights law, and it prohibits wrongful refusal of admission to places of public entertainment and amusement. And that specifically is theaters, music halls, opera houses, and circuses, which I guess were big in the 40s. So they're focused not on facial recognition technology, but on the idea that they were wrongfully excluded from this venue. Yes. And this lot has a fascinating history. It came about because in the early 1900s, theater owners were banning dramatic critics. And it was a way to say, okay, if you give us a bad review,

you can't come back. And in the late 1930s, they banned this columnist for the New York Post named Leonard Lyons because he was essentially writing kind of nasty gossip about the Schuberts who owned a bunch of theaters in New York City. So he was banned from 30 theaters

and he consulted an ACLU attorney who said, there's not much you can do about it unless you change the law. And so this columnist for the New York Post basically lobbied to get this law passed and it worked. Post basically lobbied to get this law passed, and it worked. So how do these lawyers say that that law, which clearly seems designed to protect journalists and critics from exclusion, how does it apply to them here? So these lawyers say they're exactly like these critics in the early 1900s who were banned because the theater owners essentially didn't like them.

And that this law says, hey, that doesn't matter. If somebody shows up with a ticket and they're not guilty of abusive behavior or offensive behavior, you have to let them in. So let's say that these lawyers prevail, that they prove that New York's decades-old anti-discrimination law was violated in this case. How does that affect the use of facial recognition technology? Because this legal case is, as you said, about an exclusionary blacklist, not about how this technology was used. So if they're able to get the ban lifted, it works to attack the facial recognition technology because the facial recognition technology is the only feasible way

to do a ban like this. So there's no law they can use to say, hey, this is a horrible use of my face, but they can use this 1941 law to kind of attack facial recognition from the side. Right. In other words, if they prove that the blacklist is illegal, then they are simultaneously making it impossible for facial recognition technology to be used to enforce the blacklist. Exactly. So how is their case going so far? Exactly. So how is their case going so far? So a judge has indicated that he agrees with the lawyer's interpretation of this 1941 law and has temporarily lifted the Madison Square Garden ban.

And these lawyers can't buy tickets. Madison Square Garden doesn't have to sell them tickets. But if they manage to get tickets somehow and they show up at the door wanting to go to a concert or a show, Madison Square Garden does have to let them in. Right. So if Nicolette can get a ticket to a Mariah Carey concert, for example, then Madison Square Garden has to let her in under this injunction. Yes. Nicolette's firm is one of the ones that has sued and gotten this injunction. But a firm does have to sue to actually have a judge grant this to them. Got it. So this is a victory. It is a modest victory. But the 1941 law doesn't mention sporting events. So these lawyers still

can't go to Rangers and Knicks games, which is disappointing. Of course. And after that, the judge granted the first injunction for one of the firms that had sued. Are you Benjamin Noren? Yes. Do you work for... One of their employment lawyers named Benjamin Noren went to Madison Square Garden to test it.

I received an order from the Honorable Lyle Frank, which has my name. He had the order from the judge printed out with him. And he walks through the metal detector and he gets pulled aside. Come up on a fit and matching somebody on a facial recognition list. They use facial recognition technology to identify him. And they said, no, you cannot come in. We are revoking your ticket. And you can't go to this concert tonight.

Hmm. So Madison Square Garden playing a little bit of hardball here, even after the judge files this injunction. Yeah, they don't like this judge's decision. They don't like a judge telling them who they have to let into their arena. And so they're continuing to fight it in the cases now in appeals court. Got it. But the judge's decision to file this injunction suggests that he might be leaning towards ruling in favor of these lawyers when it comes to their overall case. Is that how they are seeing it?

Yeah, the lawyers see this as a very good sign for them. But, you know, this is not the end of the case. This is not the resolution. This still could turn out in favor of Madison Square Garden. And if so, that would be, you know, kind of an implicit endorsement of how they're using the technology. And it would set a precedent for other businesses

to use it in a similar way. Right. It seems that the approach these lawyers are taking, which is the legal route, makes sense because they're lawyers. But for everybody else, isn't the better solution having states regulate facial recognition technology the way that Illinois and Texas have?

Isn't that potentially the easiest route for making sure that we have actual guidelines around how this technology is used and so that you don't end up on a facial recognition technology enemies list at your local theater. Yeah, I mean, this case is exactly the kind of scenario that privacy advocates have been talking to me about, you know, hypothetically, theoretically, what was possible. They really don't think that companies should have this power to discriminate between the customers who walk through their door and immediately know, yeah, who they work for or what their ideology is, because it really opens the door for all kinds of different discrimination. And it seems like they fear that in the absence

of different discrimination. And it seems like they fear that in the absence of this kind of regulation, we're going to see this technology used more widely in exactly this kind of manner, as a tool basically of revenge rather than security. Yeah, they think that it needs to be regulated, or even some say that facial recognition technology should be banned entirely.

And, you know, their fear is if it's not, there's going to be all kinds of different watch lists. And the lawyers themselves I've talked to, I mean, they're pretty aware they're not the most sympathetic victims. But they're saying, hey, we're the canary in the coal mine here. But they're saying, hey, we're the canary in the coal mine here. Businesses are run by people, and people have all kinds of different reasons to dislike potential customers. You could just imagine watch lists that were based on your politics. You might criticize a business on Yelp, you know, leave them a nasty review, and then you discover you're never allowed to go inside again. Businesses do get to decide in many ways who they do business with. And so we may just find that we can't shop at certain places, and you may not even know why.

You just walk in, your face sets up an alert in the system, and they say you're not welcome here. So this might sound theoretical. It might sound dystopian, like something from science fiction. But with Madison Square Garden, we've seen not only is it technologically possible, it is happening. Well, Kashmir, thank you very much. We appreciate it. Thank you for having me on. We'll be right back. Here's what else you need to know today. For the first time in decades, China's population has begun to shrink. On Tuesday, the government said that over the past year, deaths had outnumbered births

by nearly a million, a demographic crisis that China has long sought to avoid. Researchers say that unless China can reverse its declining birth rate, it may not have enough people of working age to fuel its growth. And police in New Mexico have arrested a former Republican candidate for state legislature for allegedly paying gunmen to shoot at the homes of four local Democratic officials. The candidate, Solomon Pena, lost his election by a landslide in November and approached several Democratic officials with claims that the race had been rigged. After some of the officials rejected his claims, police say he conspired to attack their houses.

Today's episode was produced by Asli Chaturvedi, Will Reed, and Mary Wilson. It was edited by John Ketchum and Michael Benoit, contains original music by Rowan Emisto and Mary Lozano and was engineered by Corey Schreppel. Our theme music is by Jim Brunberg and Ben Lansberg of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.