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Earlier this year, the New York Times reported that Madison Square Garden is using facial recognition technology for security purposes and to identify individuals entering the building. Kevin Draper, “Madison Square Garden Has Used Face-Scanning Technology on Customers,” N.Y. Times, March 13, 2018. The article did not address the full scope of MSG’s intended use of the technology, but did make clear that the type of technology reportedly utilized is not only for security, but also for marketing and promotional purposes. Indeed, MSG has used FanCam facial recognition technology since 2011, which essentially captures a high definition image of the entire audience and encourages attendees to tag themselves. See Jen Booton, “Report: MSG Adopts Facial Recognition at Arena Gates for Security,” SportTechie, March 14, 2018. Taking a picture in an open arena during an event that is publicly broadcasted is nothing new. Indeed, using biometrics at sports events in New York is also not new. See Daniel Roberts, “Tickets. (Check.) Glove. (Check.) Fingerprint scan. (Check. Wait—at a Ballgame?),” Fortune, Aug. 7, 2015 (discussing the Yankees’ use of CLEAR fingerprint identification technology to permit faster stadium access while still screening entrants for security). What is new is the ability to transform high resolution images into a biometric identifier—whether in the form of facial geometry or otherwise—and the subsequent use of that biometric data for commercial marketing purposes or its sale for use by a third party.

Biometric data typically refers to any information that is used to identify a natural person based upon unique physiological identifiers (e.g., fingerprint, face, eye, or voice). Therefore, facial recognition technology, hand geometry, and retinal or iris scans are all considered biometric data.

Developing Law

New York has yet to enact legislation regarding the use of biometric identifiers and information. However, a recent legislative proposal, and the statutes and regulations of other jurisdictions, provide valuable guidance to New York businesses regarding permissible practices for collection, use, storage, and destruction of biometric data consistent with individual privacy rights, the perceived need for increased security measures, and the potential future commercial purposes of the business.

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