Jennifer Park
In 2021, the New York Mets became the first MLB team to use a facial recognition ticketing system in hopes of lowering waiting times to enter Citi Field.[1] The program uses machines powered by facial authentication software from Wicket to match participating fans’ faces against images of their faces that they upload before baseball games.[2] About two months ago, the Philadelphia Phillies joined the Mets,[3] as well as other large organizations and venues including Madison Square Garden,[4] the Cleveland Browns,[5] and the Rose Bowl Stadium[6] in using facial recognition systems on attendees. It doesn’t seem like things will stop there; most respondents of a 2022 survey of 40 venue directors that host teams in the MLB, NBA, NHL, NFL, and MLS indicated that they would likely purchase facial recognition systems if they were able to get new screening technology to get patrons inside faster.[7]
The rapid expanse of facial recognition technology use in locations where large numbers of people assemble raises significant privacy concerns, creates chilling effects on First Amendment rights to protest, and can lead to deleterious impacts on those that belong to historically marginalized groups. Specifically, amassed facial recognition data by companies like Wicket can easily be exploited by police departments and institutions like ICE. This especially puts people of color[8] and non-cisgender[9] individuals at greater risk of being misidentified and facing wrongful arrest.
Although courts often look to the Fourth Amendment to address situations in which law enforcement may be overreaching its powers to search, the existing doctrine does not properly extend to situations in which law enforcement obtains facial recognition data from private entities.
A basic Fourth Amendment analysis of such a situation would include a question of whether the technology violates a reasonable expectation of privacy under Katz v. United States.[10] It would be unlikely that facial recognition systems used on people in public areas would be found unconstitutional because it would be difficult to argue that attendees have an expectation of privacy of their uncovered faces in public places. In the specific ticketing program at Citi Field, participants even opt in to the system by providing photos of their faces before games, thus destroying any expectation of privacy. Later cases including Riley v. California, Carpenter v. United States, and United States v. Jones have extended Fourth Amendment jurisprudence to address the threat of digital technologies, finding respectively that searching cell phones of arrested individuals, tracking a suspect's car for twenty-eight days with a GPS tracker, and collecting a suspect’s cell site location information are all considered searches that require a warrant based on probable cause.[11] However, these three cases examine a particular defendant’s right to privacy against a technology, while surveillance technology like facial recognition affect the rights of a mass of individuals.
To address instances in which law enforcement purchase biometric data from private entities, bills like the “Fourth Amendment Is Not For Sale Act” would require federal law enforcement to obtain a court order to close the legal loophole that allows them to purchase personal information from data brokers. Furthermore, Congress can pass federal privacy law that provides consumers with data rights to delete personal information held by corporations. To shift the burden of reducing privacy harms from consumers to companies, privacy law can also mandate corporations to practice data minimization, which would limit collection of data to only what is necessary for a requested service.
As dubbed by privacy advocacy group Surveillance Technology Oversight Project, it’s time to “steal bases, not faces.”[12]
[1] Andrew Cohen, New York Mets Expand Wicket’s Facial Recognition at Citi Field, Sports Bus. J. (Dec. 7, 2021), https://www.sportsbusinessjournal.com/Daily/Issues/2021/12/07/Technology/new-york-mets-expand-wickets-facial-recognition-at-citi-field.aspx [https://perma.cc/P29Z-7DS3] [https://web.archive.org/web/20231017174859/https://www.sportsbusinessjournal.com/Daily/Issues/2021/12/07/Technology/new-york-mets-expand-wickets-facial-recognition-at-citi-field.aspx].
[2] Id.
[3] Dan Gelston, MLB Testing Hands-Free Entry for Fans Utilizing Facial Authentication, AI Security, Associated Press (Aug. 31, 2023), https://apnews.com/article/phillies-mlb-security-safety-ballparks-b31926803c627ec7f0f8972032466cea [https://perma.cc/7XUW-W7FQ] [https://web.archive.org/web/20231017175047/https://apnews.com/article/phillies-mlb-security-safety-ballparks-b31926803c627ec7f0f8972032466cea].
[4] Kashmir Hill & Corey Kilgannon, Madison Square Garden Uses Facial Recognition To Ban Its Owner’s Enemies, N.Y. Times (Dec. 22, 2022), https://www.nytimes.com/2022/12/22/nyregion/madison-square-garden-facial-recognition.html [https://perma.cc/BB2Z-V8FW] [https://web.archive.org/web/20231017175553/https://www.nytimes.com/2022/12/22/nyregion/madison-square-garden-facial-recognition.html].
[5] Steve Maugeri, Browns Announce New Fan Features for 2023 Season, Spectrum News (Sept. 8, 2023), https://spectrumnews1.com/oh/columbus/news/2023/09/07/browns-new-features [https://perma.cc/JRN4-6BH7] [https://web.archive.org/web/20231017175947/https://spectrumnews1.com/oh/columbus/news/2023/09/07/browns-new-features].
[6] Donovan McCray, Rose Bowl Uses Facial Recognition Software, Pasadena Now (June 15, 2020), https://www.pasadenanow.com/main/rose-bowl-using-facial-recognition-software [https://perma.cc/M2AV-R896] [https://web.archive.org/web/20231017180247/https://www.pasadenanow.com/main/rose-bowl-using-facial-recognition-software].
[7] Stacey A. Hall & Joslyn Zale, Professional Sports Venue Security Issues, Emerging Threats, and Technology Solutions, Total Sec. Advisor (Aug. 24, 2022), https://totalsecurityadvisor.blr.com/facility-security/professional-sports-venue-security-issues-emerging-threats-and-technology-solutions/ [https://perma.cc/5XCW-VTJY] [https://web.archive.org/web/20231017180456/https://totalsecurityadvisor.blr.com/facility-security/professional-sports-venue-security-issues-emerging-threats-and-technology-solutions/].
[8] Kashmir Hill, Another Arrest, and Jail Time, Due To a Bad Facial Recognition Match, N.Y. Times (Dec. 29, 2020), https://www.nytimes.com/2020/12/29/technology/facial-recognition-misidentify-jail.html [https://perma.cc/U6JC-ARNP] [https://web.archive.org/web/20231017180653/https://www.nytimes.com/2020/12/29/technology/facial-recognition-misidentify-jail.html]; Joy Buolamwini & Timnit Gebru, Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification, 81 Proceeds of Mach. Learning Rsch. 1 (2018).
[9] Rachel Mentz, AI Software Defines People as Male or Female. That’s a Problem, CNN Bus. (Nov. 21, 2019), https://www.cnn.com/2019/11/21/tech/ai-gender-recognition-problem/index.html [https://perma.cc/BLF3-KQT9] [https://web.archive.org/web/20231017183342/https://www.cnn.com/2019/11/21/tech/ai-gender-recognition-problem/index.html].
[10] Katz v. United States, 389 U.S. 347 (1967).
[11] Riley v. California, 573 U.S. 373 (2014); Carpenter v. United States, 138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S. 400 (2012).
[12] Albert Cahn, Tell The NY Mets: Steal Bases, Not Faces!, Action Network https://actionnetwork.org/petitions/c3df0ce3ea3bd820c3fe5d25a253ab8be0e1acf9/?hash=3ec7797ed724a5e078de999516a07593 [https://perma.cc/W2GG-HETS] [https://web.archive.org/web/20231017195121/https://actionnetwork.org/petitions/c3df0ce3ea3bd820c3fe5d25a253ab8be0e1acf9/?hash=3ec7797ed724a5e078de999516a07593].