Portland has banned both public and private use of facial recognition technologies since January 9, instating one of the most restrictive bans in the country.
The ban, drafted by tech advocacy organization Smart City PDX, aimed to ban both private and public use of facial recognition software in an effort to protect BIPOC communities that have been sorely misrepresented by the technology. However, little has been explained about what is inside, and what exactly this new law covers.
What’s initially intriguing about the ban is that it is actually separated into two ordinances. The first half took effect immediately upon its approval on Sep. 9, 2020 and the second half as a city code took effect on Jan. 1, 2021. The first ordinance covers the prohibition of the use of facial recognition by city bureaus, while the city code explicitly outlines prohibitions and guidance for privatized use of facial recognition in places of “public accommodation.” While they may be the most restrictive policies against facial recognition software, even the most well-crafted laws have their limitations due to their language use and strict legal interpretations.
City codes, statutes and laws typically have a section of definitions, defining specific vocabulary mentioned throughout the text. This section is key in interpreting legal and linguistic analysis of the law. In Chapter 34.10.030(D)(1), public accommodations are defined as “Any place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise”—a definition that is especially key to deciphering exactly how and where facial recognition may be used in private contexts.
“When we start looking at this [definition] then we get this question of accommodations…as a layperson I can kind of think about what does that mean to me, but it probably also has a very specific meaning in how it’s used elsewhere in other laws,” said Dr. Alyssa Hartig, professor of applied linguistics at Portland State. “Part of how you would want to interpret what accommodations mean in this context would be to see how it is used in other ordinances, and what kinds of things does it use to cover in those contexts…I’d be interested to know what’s included in accommodations, advantages.”
In essence, there is still room for legal interpretation about what exactly accommodations covers. In the same section of definitions, the code is also clear that places of public accommodation do not include “an institution, bona fide club, private residence, or place of accommodation that is in its nature distinctly private.” This means that so long as a company remains private, and their infrastructure remains inside private boundaries, they are still free to practice the use of facial recognition technology at their leisure. As such, the ban does not prevent the use of the technology entirely within city lines, but rather, it only limits use in public areas within the confines of the city.
Another important facet of the ban is that it can only hold the city bureaus accountable. While it makes sense for city ordinances to take effect solely within the bounds of the city it’s in, questions arise about what kind of leniency Federal Bureaus have in using the technology in Portland. Previously, the only facial recognition-adjacent law affecting Oregon state bureaus was within ORS 133.741(1)(b)(D), which prohibited the use of facial recognition to analyze recordings from body cameras.
Section (e) inside the city bureau ban states that “Bureaus shall not direct a non-City entity to acquire or use Face Recognition Technologies on the City’s behalf unless such acquisition or use would be otherwise allowed for bureaus under this ordinance,” meaning the city cannot formally ask nor use facial recognition technologies offered by federal or state institutions, unless it applies to the restrictions stated in the law. There is, however, no law nor ability to hold higher officials accountable if they simply do not ask permission from the city itself.
The inability to control what goes beyond the city’s own law enforcement may be considered minutiae at best. However, federal forces in Portland have a history of acting on their own without permission, despite Portland’s own mayor requesting they leave, even tear-gassing him in the process.
Despite such loopholes, this is the first ordinance at a state level in US history to enact such a strict ban. Portland city commissioner Jo Ann Hardesty cited the urgent need for the ban in a Sep. 2020 statement to Wired, stating that “the more research [Smart City PDX] did, the more it became clear we had to do something now.” Cities such as Boston, Oakland and several others have also passed similar bans, potentially opening the door for wider federal restrictions.
The ban is also a major boon for protestors and their right to privacy, as facial recognition cannot be used by the Portland Police Bureau in any prosecutorial capacity and streets may be defined as transportation under public accommodations.
Although the ban does not grant complete anonymity, it does mean any photos taken either from social media or law enforcement themselves cannot be run through any facial recognition software to identify and incriminate protestors, nor can the PPB or any other city bureau outsource the task. Cameras in Portland’s street light sensors have since been disabled for this reason as well, protecting the privacy of protestors that take to downtown city streets.
Finally, although the ban does restrict companies from collecting facial recognition data, tech companies with a focus on facial recognition are still allowed to perform research and development, as long as it is done so in a responsible manner.
“Smart cities was a marketing term created to sell cities technology,” said Kevin Martin, manager of Smart City PDX to Wired. “When the concept first started getting traction, a lot of those technologies were oversold.”