Back in the late 1930s, a critic and columnist for the New York Post, Leonard Lyons, was forbidden by the Shuberts from attending any of the thirty or so theatres and other venues owned by them in New York. It seems that they didn’t like his review of one of their plays. It was not the first time this sort of thing had happened. In the early 1900s it was a fairly common reaction to disobliging criticism. Indeed, one of his predecessors had taken to Court some owners who had barred him alleging that they had thereby prevented him from earning his living. The Court decided in favour of the owners.

So then when Mr Lyons was advised that the only thing which could help him was a change in the law, he set about achieving it. He persuaded a congressman to introduce an amendment to the Civil Rights statute of New York State and, after a few years and much pressure from virtually all of the New York journalists, it was eventually passed into law. What it actually says is:

No person [in control of], a place of public entertainment and amusement [legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses]  shall refuse to admit to any public performance held [there] any person over the age of twenty-one years who presents a ticket of admission to the performance a reasonable time before the commencement thereof...but nothing...shall prevent the refusal of admission to or the ejection of any person whose conduct or speech … is abusive or offensive or of any person engaged in any activity which may tend to a breach of the peace.

So then, quite a victory for the Press and a resounding defeat for thin-skinned theatre owners, whether legitimate or burlesque.

Now however New York is witnessing a repeat of the fight between theatre owners and, this time, lawyers. Perhaps not a good group of people to pick a fight with. Since last summer, MSG Entertainment, which operates Madison Square Garden and Radio City Music Hall, along with other venues and restaurants, has sent letters to lawyers at around 90 firms acting for clients who are suing them saying:

“Neither you, nor any other attorney employed at your firm, may enter the Company’s venues until final resolution of the litigation.”

The purpose, according to MSG Entertainment officials, is to prevent the collection of evidence “outside proper litigation discovery channels.” Obviously a ludicrous excuse.

One of the lawyers banned is in that position because his firm represents ticket resellers in a lawsuit against the company. He is though not involved in the case itself. He called the ban “a transparent effort” by MSG Entertainment and its chief executive, James Dolan, “to stop attorneys from suing them.” Presumably he thinks that their families will put pressure on them when they find they can’t go to be entertained.

How to enforce the ban, though? Of course MSG could scan all ticket requests for people on the black list. But that leaves the possible purchase by someone-else of a ticket for a banned lawyer so that the theatre owner wouldn't know who was coming. So then, to get over this little difficulty, MSG has decided to use facial recognition software. They have scanned the photos of the personnel on all of the firms’ websites so that they can recognise these dreadful people as they come through the metal detectors on their way into the venue and turn them away.

A slight problem. The benefit of the amendment to the Civil Rights legislation is not confined to members of the third estate. It applies to everyone. And so the lawyers have done what they do best. They’ve gone to court to obtain injunctions. Their (many) cases are going through the appeals process.

Although security is the most obvious use of the technology, some independent experts say it is less effective as a security measure for private businesses because they do not have access to various watch lists held by law enforcement agencies. In fact, some vendors and team officials said the customer engagement and marketing capabilities of facial recognition are even more valuable for sports facilities than the added security it is said to provide.

MSG started to deploy facial recognition for ‘security reasons’ in 2018. But, in November last year, its ‘security’ technology spotted and turned away a lawyer accompanying her daughter’s Girl Scout troop to see the Rockettes at Radio City Music Hall. Many others were spotted and prevented from entering, although some of the male lawyers grew beards (or shaved them off) to try to outwit the system.

Law enforcement agencies have used facial recognition technology for many years, but commercial entities have generally been wary. Walmart is amongst those that have experimented with it, to help identify shoplifters, drawing strong objections from privacy groups. In the old days, when a store caught someone stealing, a detective would march the thief to a backroom and take his picture with a Polaroid camera. The photo would be added to the retailer’s in-house rogues gallery to help store security keep an eye out for the bad guys.

And the proponents of the new technology say that the facial recognition technology is simply an update on the photographs kept at the store. But taking a photo of a person who has already shown criminal intent is one thing. Having a system which tries to identify everyone arriving at the store is another.

So what is the situation in the UK? Strangely, it is the Co-op which has been in the forefront of the use of the technology. They have tried it out at 30 stores n the South-East of England. Their system enables them to alert staff whenever anyone enters who has shop-lifted or been violent or abusive towards staff members at any of their stores. And although there has been a lot of protest about its deployment, there is no law which specifically deals with the question.

There is a proposal by the government that there should be a facial recognition ‘Czar’ and a ‘facial recognition technology’ authority, but so far no progress has been made in this direction. Instead, we have to rely on the Human Rights Act which tells us that as private citizens we are entitled to privacy – except when we’re not.

Does it matter? In the old days, the owner of the corner shop knew all his customers. And those in favour of the technology would say that this is no different in principle. If we’ve done nothing wrong then we have nothing to hide, including our identity. Surely something which enables us to see and identify wrong-doers is to be welcomed.

But that is an over-simplistic way of looking at things. It depends on our definition of wrong-doing. It may be that the technology will normally be used in a benign way, but when it is available to do mass screening, then that very change of scale, in the hands of a government intent on control, can produce a very different result – as we see in China. There, protestors are identified in this way, tracked down to their homes and prosecuted. I would accept that it requires competence to produce such a system, a quality which is not obviously present in our governing classes, but things can change where a government wishes to go in a different direction. Use of facial recognition technology should be tightly controlled and only used where absolutely necessary.

Paul Buckingham

18 January 2023