This Wednesday, the Portland City Council will hear from residents, businesses, and civil society as they consider banning government use of face recognition technology within the city.
Over 150 Portland-area business owners, technologists, workers, and residents have signed our About Face petition calling for an end to government use of face surveillance. This week, a coalition of local and national civil society organizations led by Electronic Frontier Alliance (EFA) members PDX Privacy and Portland's Techno-Activism Third Mondays delivered that petition to the council, noting that "even if the technology someday functions flawlessly, automated surveillance and collection of biometric data will still violate our personal privacy and conflict with the City's own privacy principles."
The proposed ban on government use of face surveillance makes critical steps forward in protecting Portland residents. As a result of federal grants and gifting through the Department of Defense's 1033 program, budgeting systems that once provided some measure of transparency—and an opportunity for accountability—have been circumvented by police departments across the country as they build arsenals of powerful technology. Meanwhile, lawmakers and the public are kept in the dark. Once passed, Portland's ordinance will prohibit city bureaus from purchasing, leasing, or accepting face recognition technology as a donation or gift. It will also prohibit city bureaus from directing non-city entities to acquire or use the technology on the city's behalf.
The ordinance also provides a path toward protections against government use of other kinds of privacy-invasive surveillance technology, beyond face surveillance. Specifically, the ordinance tasks Portland's Bureau of Planning and Sustainability with proposing a framework for the establishment of citywide privacy policies and procedures. These would include a public engagement process focusing on underserved communities, and the development of decision-making structures for managing city data and information acquired through the use of surveillance technology.
The Portland City Council will also consider a second ordinance on face surveillance, which addresses private sector use of the technology. Specifically, it would ban use of face surveillance by private parties in places of public accommodation. The better approach to private sector use is through the requirement of opt-in consent, as is required by Illinois' Biometric Information Privacy Act and Senator Jeff Merkley's (D-OR) proposed National Biometric Information Privacy Act. We made the same point in our June letter to the Boston City Council about its face recognition ordinance.
On the ban on government use of face surveillance, there is still significant room for improvement as to enforcement. It requires that a violation of the ordinance harm a person before they can initiate the enforcement process. But to protect the public before they have been injured by a technology that threatens their privacy, safety, and fundamental freedoms, a person must be able to initiate an enforcement action before they experience harm. In the words of Brian Hofer, Chair of the Privacy Advisory Commission in Oakland, California—which are included in the package being considered by Portland Commissioners this week—the "current enforcement mechanism will likely not provide much protection because A) we typically only learn of harm from surveillance long after the fact, and B) this technology works at a distance, in secret, and thus an injured party will almost never discover that they were subject to its use." Hofer suggests that the language be amended to more closely mirror that of Oakland's own ban, which does not require an individual to prove that they have been personally harmed. Oakland's ordinance also provides for damages to be awarded to those who are harmed, another provision that would improve Portland's bill.
Moreover, the enforcement provisions of many of the existing local bans on face surveillance include an essential provision notably missing from Portland's ban: the city must pay the attorney fees of a prevailing plaintiff. Commonly referred to as 'fee-shifting,' this rule helps level the playing field between a resourced government and an individual looking to hold it accountable by eliminating the financial barrier to finding legal assistance.
The work of Portland lawmakers and the city's Bureau of Planning and Sustainability to protect city residents from the harms of face surveillance is commendable. Commissioners must also work to ensure that the city's ban provides appropriate protections and accessible enforcement mechanisms. From San Francisco to Boston; Portland to Durham; communities are coming together to protect themselves from the harms of the ever-expanding panopticon of unwarranted government surveillance. Through efforts like our About Face campaign, and alongside our EFA allies, we will continue the push for stronger, enforceable protections. If your community-based group or hackerspace would like to join us in ending government use of face surveillance in your community, please add your name to the About Face petition and encourage your group to consider joining the Alliance.