Portland City Council Passes Strongest Ban on Facial Recognition in US

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP

The City Council of Portland, Oregon unanimously passed a ban on facial recognition, set to take effect in January 2021.  The Portland ban is currently the strongest in the United States, preventing not only government agencies, but also private businesses from using facial recognition technology.  The ban also applies to facial recognition used by airlines at airports.  Starting in January, local government agencies, including the police, as well as stores and businesses, will be banned from using facial recognition technology.

Other cities, such as San Francisco, Boston and Oakland, have passed similar legislation banning government agencies from using facial recognition technology.  The Portland ban goes further, by also banning private businesses from using facial recognition.  In the ordinance passed by Portland, (available here) the City Council emphasized that residents and visitors should be able to use public spaces without violating their personal privacy and anonymity.  The ordinance also emphasized the risk that facial recognition poses to the privacy of communities that have been subject to over surveillance.

In addition to the privacy concerns, Portland’s City Council noted that it does not currently have the infrastructure to evaluate facial recognition technologies.  The lack of infrastructure could result in indiscriminate use of facial recognition technology, presenting barriers for individuals to access services or public spaces that use facial recognition technology.  The Council also noted that there is currently no standard or formal certification process for handling and storing sensitive personal data collected with facial recognition technology.

Portland’s Mayor, Ted Wheeler, is in support of the ban saying, “All Portlanders are entitled to a city government that will not use technology with demonstrated racial and gender biases that endanger personal privacy,” at the City Council meeting.

Companies that violate the ban may be required to pay $1,000.00 a day for each day they violate the ban.  The ordinance does carve out individual exemptions for personal situations, such as unlocking a phone or using a filter on a social media app.

Portland’s new law signals a move to expand bans on facial recognition technology beyond government and police use.  Since there is no federal legislation on facial recognition, most bans are likely to be enacted city by city.  While other cities have not yet expanded their ban to include commercial and private businesses, Portland’s decision could signal the next wave of facial recognition bans.  We will continue to update this space with any newly enacted facial recognition bans.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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