Portland is one step closer to a facial recognition ban. But the city is taking its time.

Portland’s data governance workgroup on Tuesday unveiled a draft ordinance prohibiting city government agencies from acquiring or employing facial recognition technology. This is the group’s first official written proposal following earlier discussions about a ban. A companion ban on privately owned use of the technology in public spaces also is in the works in what has become a deliberate, multi-step and multi-pronged process.

An actual city council vote on the policy is not expected until next year. But if adopted, the proposed ban would make Portland one of just a few U.S. cities that outlaw use by government agencies of the controversial surveillance technology. And if the workgroup proceeds with its plan to propose a similar ban on use by retailers, employers or other private entities, the city could become the first in the U.S. to outlaw private use of facial recognition.

The draft ordinance (embedded below in full) calls for a ban on the city’s acquisition and use of facial recognition technologies in addition to information derived from such technologies. It would even outlaw city agencies from evaluating facial recognition tech, including for systems that would be provided for free.

Portland bureaus also would be required to conduct an internal assessment of any current uses of facial recognition. It may seem surprising, but many cities have not taken stock of the technologies their agencies employ, whether they be facial recognition, algorithmic decision systems, or other tech.

Portland lawmakers, city agency officials and biometric identification experts met in September at Portland City Hall in a work session dedicated to devising a facial recognition policy. The draft ordinance is the result of that session and subsequent discussions among agency staff and city council commissioners.

Ban exceptions

There are exceptions in the proposed ban, and they are for things many people use facial recognition for every day. The three exceptions: to unlock a phone or personal device; when using social media such as to tag someone on Facebook; or to detect faces in images and video to obscure them. Some technologies used by law enforcement employ facial recognition to automatically remove facial images from body cam and other video that might be used for legal purposes, for instance.

As of September, no Portland agencies used facial recognition or biometric technologies, according to a spokesperson for Portland Mayor Ted Wheeler. Portland Police Bureau Public Information Officer Sergeant Kevin Allen told GeekWire last week that the bureau does not use facial recognition technology.

“The use of flawed and/or biased Facial Recognition Technologies and the lack of transparency and accountability — particularly by law enforcement — can create devastating impacts on individuals and families,” stated the draft ordinance.

Civil liberties and privacy watchdogs say widespread use of facial recognition by government agencies or in commercial settings could turn the places we live into invasive surveillance states. Studies and tests have shown that some facial recognition systems fail to accurately detect women or people with darker skin tones. A collective of organizations including Black Alliance for Just Immigration, Electronic Privacy Information Center, Greenpeace, Mijente and the Muslim Justice League support a federal ban on facial recognition, calling the technology “unreliable, biased, and a threat to basic rights and safety.”

The ACLU in late October filed a lawsuit against the FBI, Department of Justice and the U.S. Drug Enforcement Agency, seeking information regarding their use of facial recognition and biometric identification technologies.

San Francisco led the way in May with the nation’s first ban on city government and police use of facial recognition technology. Similar bans have been enacted in nearby Oakland and Somerville, Mass. Those rules apply only to government use of the technology. The state of California recently outlawed the use of facial recognition in conjunction with police body cameras.

Portland City Commissioner Jo Ann Hardesty has been an outspoken proponent of a ban on facial recognition in the city, not just on public use, but private. A private-use ban could outlaw facial recognition for employee identification in the workplace, or for entry into apartment buildings and stores. Hardesty has suggested businesses that violate a potential ban on private facial recognition use should be penalized.

Convenience store chain Jacksons has two locations — 621 SE Grand Avenue in Portland and 3740 Pacific Avenue Tacoma, Wash. — that employ facial recognition software to approve or deny entry into the stores. The company contends the promise of theft prevention and safety outweighs concerns about privacy or faulty systems that misidentify people.

“We’ve found it to be a remarkable deterrent since we’ve installed it at the Grand Avenue store,” company spokesperson Russ Stoddard told GeekWire in September.

But Hardesty countered, telling RedTail in September that “I find it absolutely appalling that in order for me to do some basic shopping, that you need to take an image of me and then keep it just to make sure that I don’t steal from you.”

A city council work session on the draft proposal is set for Jan. 28. The plan is to schedule public events after the work session. A city council hearing on both government and private use of facial recognition would come later in the spring of 2020.

“The longer we wait, the more this technology will become spread through our community,” said Hardesty in the interview with RedTail. “We have never been able to correct racially disparate systems. And so, if we put a system in place that we start off knowing will have racially negative, racially disparate outcomes, why would we do that?”

Portland unveils facial recognition ban proposal by GeekWire on Scribd