Faces in the crowd: legal considerations for use of facial recognition technology at sports arenas

This article was first published on 29 August 2018 and last updated on 28 April 2020.

Facial recognition technology is being employed in increasingly creative ways to analyze crowd demographics and improve the fan experience by providing useful data to help inform a variety of venue decisions, including what music to play, the types of ads to display, and the particular pre-game, half-time and post-game activities which the spectators would be most excited to see. As new reports of violence and crimes at large venues become more commonplace, operators of sports and entertainment venues around the United States are increasingly considering the use of facial recognition technology1 to help protect their employees, guests, performers, and athletes as well as to assist law enforcement in those egregious cases where facial recognition technology may be useful in identifying responsible individuals.  

Facial recognition technology uses several key points on faces to recognize individuals based upon certain identifying features. Although the business case for employing these techniques is strong (and becomes stronger with each technological innovation), venue operators need to consider the legal implications and requirements applicable to the use of this technology – in particular with respect to the myriad laws governing the collection of facial images. These laws are both in the US and abroad although the focus of this article is primarily on US law.

This article considers the advantages of the technology and some of the key legal considerations associated with its use. In the end, as with most decisions, there is a balancing test that must be applied before the decision to employ the technology is made. Specifically, it looks at:

• The advantages of venue operators using facial recognition technology
• Potential challenges in using facial recognition technology:
  • Is the technology advanced (and reliable) enough to be worth using?
  • How can the user ensure that the use of facial recognition technology will fit within state laws and what must be done to ensure the proper giving of notice and obtaining consent?
  • How can the user ensure adequate security of the data.
• Litigation risk
• Balancing the benefits and legal concerns
• Existing and emerging U.S. federal and state legislation on facial recognition technology