Facial recognition concerns take stage at NYC’s most hallowed venues

By TANDY LAU Amsterdam News Staff, Report for America Corps Member

The Apollo Theater is back in the national spotlight, but not for Amateur Night. Last month, a viral video of an NYPD officer recording concert attendees leaving the legendary Harlem venue after a Drake performance drummed up privacy concerns.

“We’re deeply concerned facial recognition may have been involved, and demand the department destroy any footage it took,” said the Surveillance Technology Oversight Project (S.T.O.P.) communications director Will Owen in a statement. “This is the latest proof that the city and state must ban its use at venues once and for all.”

The incident was captured and shared over Twitter by New York Times music critic Jon Caramanica and met with widespread, nationwide criticism. But the NYPD denies using the footage for anything other than a promotional video. The officer shown is wearing a light blue shirt usually reserved for those working in community affairs.

Adam Scott Wandt, an assistant professor of Public Policy at John Jay College of Criminal Justice, says the phone held by the officer is certainly capable of recording surveillance for facial recognition. But he points out such an operation can be performed more covertly, like from a car.

“Whether or not it was the NYPD testing new technology, whether it was the NYPD actively looking for a specific person, perhaps there's really no way to know,” said Wandt. “But what is clear—from a legal standpoint—is that the people needing the Drake concert were in public, and there is no expectation of privacy in public. So from a legal standpoint—a pure legal standpoint—the NYPD does have a right to film in public. So does everyone else.”

But given the public backlash, there’s certainly a veritable anxiety over facial recognition and distrust with the NYPD involving rap—the department's Enterprise Operations Unit is famously dubbed the “hip-hop police.” Owen later expressed to the Amsterdam News that such a stunt was tone deaf to the least given the unease.

“If the NYPD was trying to do some sort of social media outreach, we think that they need to find a better social media strategy than showing up at a concert and filming Drake fans without their consent,” he said. “And a lot of the concern and outrage does reflect that long legacy of the NYPD targeting rap concerts and the racist surveillance of rap in general by the NYPD.”

Mayor Eric Adams supported the filming, claiming Twitter “is not real” and commending the 28th Precinct Commanding Officer Capt. Tarik Sheppard with “two thumbs up.”

“I encourage all of my commanding officers to be creative on how we engage with our res- idents,” he said on Jan. 23. “That was a safe event. It was a large event. Drake back at the Apollo. And we want that. We want our police and community involved and those who are naysayers find reason to complain about everything. No matter what you do, they're going to find a reason to complain. That's not reality. Let them keep complaining.”

A subsequent Drake concert at the Apollo Theater was paused after an attendee fell from the balcony. The NYPD did not respond to Amsterdam News’ attempts to reach Sheppard.

There’s also the concern of false positives—according to Wandt, facial recognition is significantly worse at identifying Black and trans faces compared to a white male’s. WIRED reported last year how AI facial recognition led to the wrongful arrests of three Black men between 2019 and 2020. Last year, a Black Georgia man was wrongfully arrested for a Louisiana theft despite never visiting the state, reported NOLA.com. However, Wandt points out the use of facial recognition can also bypass potential stopand-frisk tactics traditionally used against Black and brown communities—minimizing police interaction and contact with community members while searching for specific suspects. Still, he remains wary of the technology while Owen says S.T.O.P. is currently championing state legislation outright banning its use. There’s precedent—San Francisco banned government agency use in 2019.

The NYPD began employing facial recognition as a crime-fighting tool in 2011, according to its website. Matches are not grounds for arrest. The department also claims the technology is not used to identify those in crowds or rallies.

But the private sector is also facing public backlash for using facial recognition at famous New York City venues. State Attorney General Letitia James recently penned a letter to Madison Square Garden Entertainment Corporation (MSG Entertainment) requesting information over the alleged ban of lawyers affiliated with firms “representing clients in pending litigation” against the James Dolan-owned company.

Wandt, who co-chairs the New York City Bar’s Technology, Cyber and Privacy Law Committee, says the rationale behind entry denial of such attorneys is straightforward.

“They don't want opposing counsel to come onto their premises unsupervised and interview their employees and take videos and pictures of places that injuries might have happened,” he said. “And I understand and respect that standpoint. However—and it's a huge however—I do not think the practice shouldn't be allowed from a policy standpoint.”

While there’s never a shortage of things to do in the “Big Apple,” Wandt explains the use of facial recognition to ban opposing lawyers will discourage qualified attorneys in small- er cities and towns from taking on large, private institutions—like universities— that operate a majority of entertainment venues. He also posits the strong likelihood that MSG Entertainment—like the NYPD— is in the “legal right” with this practice, but it doesn’t mean the law shouldn’t be updated.

“To be clear, our policy does not unlawfully prohibit anyone from entering our venues and it is not our intent to dissuade attorneys from representing plaintiffs in litigation against us,” said an MSG Entertainment spokesperson in response. “We are merely excluding a small percentage of lawyers only during active litigation. Most importantly, to even suggest anyone is being excluded based on the protected classes identified in state and federal civil rights laws is ludicrous. Our policy has never applied to attorneys representing plaintiffs who allege sexual harassment or employment discrimination.”

Tandy Lau is a Report for America corps member and writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.