On Wednesday, Portland, Ore. city leaders adopted the most expansive facial recognition ban in the country by banning both public and private use of this technology; other bans have only pertained to public sector usage of this technology.
The Portland City Council unanimously voted on two facial recognition – related ordinances. The first ordinance prohibits public entities from using facial recognition technology, specifically stating that it bans the “acquisition and use” of this technology in the city; this ordinance is currently in effect, as a result, within 90 days city bureaus must complete an assessment of their usage of this technology. The second ordinance bans private entities from using the technology “in places of public accommodation” in Portland; this ordinance will take effect on January 1, 2021.
“Portlanders should never be in fear of having their right of privacy be exploited by either their government or by a private institution,” Portland Mayor Ted Wheeler said. “All Portlanders and frankly all people are entitled to a city government that will not use technology with a demonstrated racial and gender bias which endangers personal privacy,” Mayor Wheeler added.
In addition to banning public entities, such as government agencies, and private entities from using facial recognition technology in public spaces or privately-owned spaces accessible to the public, such as stores, the ordinances allow people to sue and be awarded for damages for unlawful use of this technology; this provision was one of many that businesses pushed back on. Private entity violators can be sued for $1,000 per day of violation or for sustained damages from said violations. For example, Amazon lobbied Portland’s city council commissioners against the ban. Amazon was criticized for selling its Rekognition software to police departments and recently implemented a one-year moratorium on the use of its software for law enforcement purposes.
Exceptions to the ordinance include using the technology to unlock a phone or tag someone in social media and to allow government agencies to obscure faces where images are released outside of Portland.
However, the law does not prevent the use of this technology in private clubs, places of worship, peoples’ private residences or the Portland International Airport, where Delta Airlines purportedly utilizes this technology. While private schools will not be allowed to use facial recognition technology, Portland public schools are not covered in the ordinance because they fall under the governance of Oregon’s Department of Education.
Facial recognition technology has been found to have an age, race, and gender bias, causing concern from civil liberties advocates. The legislative drafters noted that federal and state civil rights and anti-discrimination law, such as the Americans with Disabilities Act and Oregon law that prohibits discrimination in places of public accommodation served as the legal background and framework for the ordinances. Specifically, the private-use ordinance established a new digital justice provision in the city of Portland code, that states “Face Recognition Technologies have been shown to falsely identify women and People of Color on a routine basis…Portland’s commitment to equity means that we prioritize the safety and well-being of communities of color and other marginalized and vulnerable community members.” According to the National Institute of Standards and Technology, research has found evidence of bias and inaccuracies for minorities. The law is designed to protect “human rights principles such as privacy and freedom of expression.” The second ordinance stated, “Portland residents and visitors should enjoy access to public spaces with a reasonable assumption of anonymity and personal privacy.”
“These ordinances have been developed from an equity and human rights perspective, grounding them in a legal framework, ADA law, which is compatible with the city core values,” Hector Dominguez, open data coordinator at Smart City PDX, told the city’s data equity advisory group overseeing the drafting of the facial recognition ordinances according to OneZero. “These actions promote safe spaces for all Portlanders and visitors in the digital age.”
The American Civil Liberties Union (ACLU) issued a statement of support for this legislation. The ACLU stated, “We hope the passage of this landmark legislation in Portland will spur efforts to enact statewide legislation that protects all Oregonians from the broad range of ways that our biometric information is collected, stored, sold, and used without our permission.”
“I believe what we’re passing is a model legislation that the rest of the country will be emulating as soon as we have completed our work here,” Portland City Council Commissioner Jo Ann Hardesty said.
Some cities are already moving in that direction; cities such as Boston, San Francisco, Oakland, and Berkeley have banned public entities from using facial recognition technology. In June, California’s legislature was considering an Assembly Bill to create the framework for public and private entities to legally use facial recognition technology.
