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

Originally Published 29 August 2018; Updated 2 June 2023.  Authored by: Eva Pulliam, Mariam Chamilova and Richard L. Brand

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 and to provide useful data regarding those in attendance. Facial recognition technology can not only be used for identification purposes but increasingly it is being used as a tool for effective target marketing. For example, this information may be used to help determine what music to play during breaks, 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.

Operators of sports and entertainment venues around the United States are increasingly  using facial recognition technology 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.  It can also be used to locate a lost parent in the crowd or determine if there are individuals in attendance who may be of interest. Given the unique attributes of one’s face, this technology has seemingly endless potential applications.

The science behind facial recognition technology is straight forward – it 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), the potential risk of employing facial recognition technology in certain circumstances cannot be disregarded. Venue operators need to consider the legal implications and requirements applicable to the use of this technology – in particular with respect to the ever increasing myriad of 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 employing the technology and some of the key legal considerations and pitfalls 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 and a decision to use it in particular circumstances will often be determined in hindsight. Specifically, we look  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