Facial Recognition Software

Cities Trend to Ban the Technology in Public

Written by Peggy Keene

In September 2020, the city of Portland, Oregon, adopted two new ordinances that prohibit the use of facial recognition technology by both the city and in areas of public accommodation, which will affect some private businesses. In doing so, Portland joins other cities including Boston and San Francisco.

Portland Adopts Ordinances for Ban of Facial Recognition Software
In deciding to ban facial recognition software, Mayor Ted Wheeler cited concerns that the technology can be used in harmful and biased ways. As facial recognition software has sometimes led to the incorrect arrest of innocent people, Wheeler, in a livestreamed city council session, noted that there are “dangers and inequities” in facial recognition software as it currently stands.

While San Francisco and Boston have also already banned the use of such software, Portland’s ordinances go one step further by banning the use of facial recognition software in “places of public accommodation.” Portland defines this as businesses that are generally open to the public and/or fall into one of the 12 categories as defined by the Americans with Disabilities Act. As such, this means that the software ban will affect private businesses because it bans such use in areas that include, but are not limited to, restaurants, day care facilities, movie theaters, recreation facilities, and doctors’ offices. It should be understood, however, that this does not outright prohibit the private businesses from use of the software overall; it only prohibits their use in the aforementioned areas. Moreover, it is noteworthy that the ban of facial recognition software will affect private schools but not public schools, which fall under the jurisdiction of other city agencies.

Concerns With Use of Facial Recognition Software
The widespread use of facial recognition software has been on the rise since manufacturers began to offer it as a means of unlocking mobile devices. While the general public is relatively aware that their faces may be used by their tablets, laptops, and cellphones to unlock the devices, many may not know that facial recognition software is now being used by surveillance cameras in convenience stores, amusement parks, methods utilized by the police, and in analytics collected by third parties. The question of where this information is stored is also a murky issue.

Privacy proponents have lauded Portland’s efforts to ban facial recognition software and hope that many more cities are to come. And as the federal government continues to remain silent on the use of biometric data and privacy protections that should protect consumers, cities continue to compensate for the lack of federal guidance by adopting their own laws to protect consumers’ privacy and their biometric data.

As these bans become more commonplace, it will be interesting to see what legal questions will arise as the innovation of technology continues to raise new privacy law issues.

Key Takeaways on City Bans of Use of Facial Recognition Software in Public Areas
The ban of facial recognition software by the city of Portland is noteworthy because:

• it extends the ban from prohibition on use by the local government to use in public areas;
• it continues a trend of city governments protecting consumer privacy and biometric data; and
• it raises interesting legal questions about the intersection of technology and privacy. TBJ

This article was originally published on the Klemchuk Intellectual Property Trends blog and has been edited and reprinted with permission.

Headshot of Brad JohnsonPEGGY KEENE is counsel to Klemchuk and focuses on internet law, particularly e-commerce, consumer digital privacy, e-sports, and video game law. She has also counseled clients in trademark portfolio management and served as in-house counsel in the telecommunications industry.


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