Portland Passes Groundbreaking Ban on Facial Recognition in Stores, Banks, Restaurants and More

Historic legislation makes Portland a leader in a nationwide trend to regulate facial recognition technology.

Photo: Portland Press Herald/Getty Images

Amid sometimes violent protests and counter-protests around racial justice, today Portland, Oregon legislators unanimously passed groundbreaking new legislation to ban the use of facial recognition technology, which some see as a victory for civil rights and digital justice. The ban covers use of the technology in both privately owned places as well as by city agencies.

“I believe what we’re passing is model legislation that the rest of the country will be emulating as soon as we have completed our work here,” said Portland City Council Commissioner Jo Ann Hardesty during today’s city council session. “This is really about making sure that we are prioritizing our most vulnerable community members and community members of color.” Hardesty has been a vocal advocate for a facial recognition ban in the city for over a year.

Established as two pieces of companion legislation, one ordinance makes Portland the first U.S. city to prohibit use of facial recognition technologies inside privately owned places accessible to the public, such as stores, banks, Airbnb rentals, restaurants, entertainment venues, public transit stations, homeless shelters, senior centers, law and doctors’ offices, and a variety of other businesses.

“I believe what we’re passing is model legislation that the rest of the country will be emulating as soon as we have completed our work here.”

This new law also gives people the right to sue and win damages for the unlawful use of facial recognition, one of many components of the legislation that prompted opposition from business groups. It lets people sue noncompliant private entities for $1,000 per day for each day of violation or for damages sustained as a result of the violation, whichever is greater.

Several local and national business and tech entities, including Amazon, the Technology Association of Oregon, and the International Identity and Biometrics Association, opposed all or parts of Portland’s legislation in the hope of stemming a tide of similar restrictions elsewhere around the country. Amazon spent a total of $24,000 to lobby city council commissioners against the ban, city records show.

The Oregon Bankers Association asked the city for an exemption for banks, pointing to security concerns. They didn’t get one.

The companion ordinance outlaws use of the technology by City of Portland government bureaus, including law enforcement. In banning facial recognition use by government agencies, Portland joins a growing list of U.S. cities, including San Francisco, Oakland, and Boston, that have prohibited government agencies and police forces from using the biometric surveillance technology.

“Portlanders should never be in fear of having their right of privacy be exploited by either their government or by a private institution,” said Portland Mayor Ted Wheeler during today’s hearing. Wheeler has become known on the national stage amid the city’s months-long protests that began after the killing of George Floyd by Minneapolis police. Wheeler also serves as Portland’s police commissioner.

“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,” he added.

Currently, according to city staff, no Portland agencies, including the Portland Police Bureau, use facial recognition or biometric technologies. Passage of the ordinance, which goes into effect immediately, calls on each city bureau to undergo a tech assessment to ensure that is the case.

The new law takes on particular significance in a city where recent protests against police violence have led to intervention by federal law enforcement; violent skirmishes among Black Lives Matter activists, police, and right-wing counterprotestors; and even death.

“How many times have we heard of wrongful arrests, assaults, convictions and deaths of Black boys and men because they resemble a suspect?” asked Portland City Council Commissioner Chloe Eudaly during today’s hearing. “These are the very people who are most likely to be misidentified by this technology. Technology should not amplify existing bias and perpetuate racism. It can and should be a tool to help solve for these social ills.”

Federal and state civil rights and anti-discrimination law, including the Americans with Disabilities Act and Oregon state law prohibiting discrimination in places of public accommodation, provided legal ground for the ordinance banning private facial recognition use, according to drafters of the legislation. Activists see the new laws as a victory for civil rights and digital justice.

“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 drafting of the facial recognition ordinances told OneZero. “These actions promote safe spaces for all Portlanders and visitors in the digital age.”

The Portland private-use law creates a new digital justice designation in the city code, which states, “Face Recognition Technologies have been shown to falsely identify women and People of Color on a routine basis.” It continues, “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.”

Several research studies, including one from the National Institute of Standards and Technology, have found evidence of bias and inaccuracies in facial recognition algorithms that disproportionately affect Asian, African American, and Indigenous people compared to white people.

There are some noteworthy gaps in Portland’s new law. For instance, it does not prevent facial recognition use in private clubs, places of worship, private residences, or the Portland International Airport, where Delta Airlines reportedly uses the technology.

It also does not limit use inside private workplaces like factories or office buildings, although it does prohibit facial recognition in lobby areas of office buildings where the public is allowed.

And because they operate under the State of Oregon’s Department of Education rather than the city’s jurisdiction, Portland public schools are not covered by the ban. Private schools are covered, however, so private nursery schools, as well as elementary, secondary, undergraduate, and postgraduate schools will no longer be allowed to use facial recognition.

The ban ordinances make exceptions for people to employ facial recognition to unlock a phone or tag someone in social media and for government agencies such as law enforcement to obscure faces to protect privacy when images are released outside the city.

Any business currently using facial recognition in Portland — such as convenience store chain Jacksons Food Stores, which employs facial recognition in three Portland stores to block alleged thieves from entering — must stop doing so by January 1, 2021, the day the private-use law goes into effect. Portland’s ban on the city agencies’ use of facial recognition goes into effect immediately.

Kate Kaye is an enterprise and investigative journalist who reports with words and audio. She lives in Portland, OR. Find her on Twitter at @KateKayeReports.

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