Portland, Ore. passes first-of-its-kind facial recognition ban

Along with banning city agencies from using facial recognition, the Portland City Council has banned private enterprises from using the technology in public spaces.

Lawmakers in Portland, Oregon on Wednesday passed the nation's most far-reaching facial recognition ban, prohibiting not only public agencies but also private enterprises from using the technology in public spaces. Portland's four city council members voted unanimously in support of two separate ordinances -- one barring city agencies from using facial recognition and one barring private entities from using it in public spaces.  

While the regulation of facial recognition is in its nascent stages -- with laws existing in just a few places like San Francisco, Oakland and San Diego -- banning private enterprises from using the technology puts Portland in uncharted legal territory. 

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"This is a truly historic day for the city of Portland," Mayor Ted Wheeler said after the two ordinances passed. "Portlanders deserve peace of mind. They deserve transparency from private institutions, just as they do public institutions... It's my hope that other cities, large and small, in this nation and across the globe will follow suit." 

The ban on city use of facial recognition goes into effect immediately, while the ban on private use would become effective on Jan. 1, 2021. It would apply to businesses offering public accommodations -- effectively barring businesses from using facial recognition in any locale where the federal Americans with Disabilities Act (ADA) applies. 

Portland's council members acknowledged that the new laws represent a first step in regulating the use of facial recognition in Portland, and that many questions remain about their implementation. For instance, Commissioner Jo Ann Hardesty, who spearheaded the legislation, acknowledged that she wasn't aware of the limitations of the first ordinance, which bars city use of facial recognition. The law is only applicable to city bureaus and agencies -- it wouldn't apply to entities run by separate jurisdictions, such as county agencies. 

"This is just the first iteration" of the city's biometric regulations, Hardesty said before the new rules were officially adopted. "We know we will be monitoring this implementation, and nothing stops us from making it stronger and better if we find out there are public or private actors trying to work their way around the city's ban. I suspect this will be just the first time the city council votes on strengthening privacy rights for Portlanders as we move forward."

The ban on the private use of facial recognition raised more questions. For instance, city officials clarified for one resident that the ban would stop a private enterprise like Starbucks from using facial recognition in public spaces such as sidewalks, as well as from using it within their retail spaces. The question, however, was initially met with some uncertainty from lawmakers.  

Additionally, Hardesty asked city policy experts for clarity on what the ban would mean for private individuals using facial recognition. "So I can walk around, and I can film people and buy facial recognition technology to find out who they are and then do background checks on them?" she asked. 

Hector Dominguez, Portland's open data coordinator, noted that "there is a service on the backend providing that." He added, "In this case, the company would be in violation but not the individual."

Jon Isaacs of the Portland Business Alliance said his organization supports the new rules but wants to work with the city to improve it. Specifically, the alliance would like to see "clear language that expressly excludes the use of mobile devices by individuals and visitors in places of public accommodation."

Additionally, the business group wants to amend the rules to allow the use of facial recognition technology for individual opt-in experiences, such as automated hotel check-in or ticket verification -- "uses that have nothing to do with surveillance, involuntary data collection or access," Isaacs said. "This is particularly important to the brick-and-mortar business community."

Third, Isaacs said the Alliance wants to work with the city to identify specific industries -- such as financial institutions -- that are exempt from the ordinance due to superseding state and federal regulations. 

"We are committed to working on these issues," Isaacs said, to build a "strong and durable privacy policy that can eventually take the place of what we hope will be temporary bans on a specific technology."

The council adopted the new rules after months of clashes between Portland protesters and the police, sparked by racist enforcement of the law at both the national and local level. Wheeler, Hardesty and their colleagues stressed that the new facial recognition bans are part of their overall commitment to anti-racist policies. 

"We are a pro-technology city but what we've seen so far in practice with this technology... continues to exacerbate the over-criminalization of black and brown people in our community," Hardesty said. "I welcome a day in Portland where innovative technologists will come with some technology that has no racially inequitable outcomes. The day that happens will be the day I'm happy to look at revising the ban."