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Portland First to Ban Private Entities From Using Facial Recognition Technology

September 11, 2020 by Kate Michael
A protester screams at police as they attempt to take control of the streets with Portland protests reaching 100 consecutive nights on Saturday, Sept. 5, 2020, in Portland, Ore.(AP Photo/Paula Bronstein)

PORTLAND, Ore. — Portland officials voted on Wednesday, Sept. 9, 2020, in favor of the nation’s first-ever ban on private entities using facial recognition technology in its city public spaces. In a second ordinance approved on the same day, the City Council voted to ban local government bureaus from acquiring or using the technology.

Facial recognition is a biometric software application that is capable of uniquely identifying or verifying a person based on the analysis of a person’s facial contours. It compares the information gleaned from a facial scan with information from a database of known faces to find a match.

Improved public security, non-invasive identity verification, retail recognition, and worker attendance monitoring are a few of the benefits touted by facial recognition advocates. But opponents fear it is the gateway to a surveillance state.

Concerns over Portland residents’ civil rights and privacy were advanced as primary reasons for the introduction of the legislation, as well as racial justice issues. Policy debates cited recent studies showing that the technology may have racial and gender bias, and opponents also worry that the algorithm could lead to misidentification. For example, known flaws have led to false positives, which could have serious consequences.

“The indiscriminate use and misuse of this technology are well known and in many ways frightening,” says Robert Cattanach, partner at the international law firm Dorsey and Whitney, who specializes in cybersecurity. He cites ubiquitous surveillance by government entities as well as poorly matched databases producing mistaken identification by law enforcement, and decries non-transparent nonconsensual use in commercial settings.

The state of Oregon already bans police from using body cameras with facial recognition technology. Now, Portland joins cities like San Francisco, Oakland, and Berkeley in forbidding local governments from obtaining the technology, and its groundbreaking legislation goes even further: Private commercial entities are affected as well. 

“In banning the use of this technology, Portland not only joins a growing number of public entities prohibiting its use but takes the ban a huge step further by also prohibiting its use by private entities,” Cattanach says. “But what about the potential benefits, especially those predicated upon voluntary and informed consent?”

Benefits, Cattanach suggests, include “significant efficiencies and convenience with consensual screening at airports; improved security in public settings to identify known terrorists; and, invaluable assistance to law enforcement in appropriate emergency settings.”

Stores, like the three locations of Jackson Food Stores in Portland, have used facial recognition technology to scan customers’ faces before letting them enter the premises. Through the use of this technology, they can more easily identify and deny admittance to those who have previously threatened employees or shoplifted.

“By making the ban absolute and eliminating any opportunity for balance, Portland’s approach preempts any possible dialogue among stakeholders and may be imposing a one-size-fits-all solution in a highly pressurized and politicized setting, for a problem arguably deserving of more thoughtful assessment as the technology improves and its beneficial uses continue to emerge,” says Cattanach. 

Portland officials predict that their ban on facial recognition technology may serve as “model legislation” for other municipalities grappling with how to handle these issues. There is currently no consensus on whether there is a need for policy at the national level, but the House Oversight Committee has confirmed that it is looking into legislation that would regulate facial recognition. 

Portland’s ban covers businesses like restaurants and retail stores as they operate in the public space, but does not apply to private individuals using, for example, the FaceID feature on their iPhones. 

The prohibition for private commercial entities goes into effect on Jan. 1, 2021, but the ban on city departments is effective immediately.

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