Portland’s facial recognition ban: Why businesses — including Amazon — fought the groundbreaking law

RealNetworks’ SAFR arms schools with facial recognition technology. (SAFR Photo)

The Portland City Council on Wednesday unanimously passed a groundbreaking ban prohibiting use of facial recognition in privately-owned places accessible to the public such as stores, banks and hotels, as well as on use by city bureaus.

The legislation saw pushback from a bevy of organizations, including Seattle tech giant Amazon, which spent $24,000 to lobby against the ban. Some expect Portland’s ban to influence other cities to take up similarly tough legislation.

The ban is part of Portland city government’s broader efforts to devise policy for emerging technologies and data use that could have adverse impacts on marginalized groups.

In a joint letter sent before the vote to SmartCityPDX, the city’s data and tech use advisory group that drafted the legislation, the Portland Business Alliance and Technology Association of Oregon called the ban on private facial recognition use “harmfully too broad.”

“We can address the public’s concerns about facial recognition technologies’ impact on privacy, security, and racial justice without depriving the public of the benefits that facial recognition can bring,” they wrote.

The groups were joined in opposition to the ban by national organizations including the Security Industry Association, the International Biometrics and Identity Association, and the Information Technology and Innovation Foundation.

Oregon Bankers Association stressed in its own letter to the city the desire to explore biometric technologies for security and customer identity purposes. The group asked for an exemption from the ban for banks, but were not given one in the legislation passed Wednesday.

A public comment letter from the Security Industry Association reminded drafters of the legislation that “touchless access control solutions are more important than ever as we work to protect essential workers during the COVID-19 pandemic.” They added that in healthcare facilities, facial recognition technology can reduce contact during patient check-in and can also provide a way to identify unconscious patients in need of emergency assistance.

The business and tech groups were also concerned that the ban allows people to sue non-compliant private entities for damages. Some worry the private right of action will lead to frivolous lawsuits, especially against small businesses.

Others said establishing a blanket ban on one particular category of technology is the wrong way to go. They suggested the city should have instead restricted how it can be used. Many pushed against an outright ban, arguing instead for a temporary moratorium.

While both the PBA and TAO stressed their support for the intent of Portland’s ban to ensure racial and gender equity, they hoped the city might allow for some commercial uses of facial recognition if people gave consent.

“We hope that clear language will be added in the future that will allow the use of facial recognition technology for individual opt-in experiences such as automated hotel check-in or ticket verification, uses that have nothing to do with surveillance, involuntary data collection or access,” said Jon Isaacs, vice president of government affairs for Portland Business Alliance, during Wednesday’s vote session. “This is particularly important to the local bricks and mortar business community,” he added.

Following ten months of drafting, revisions and community engagement around the ban, it is not clear whether councilmembers, including Mayor Ted Wheeler, have much appetite to negotiate any major changes to the new law.

Portland City Commissioner Jo Ann Hardesty. (City of Portland Photo)

No individual businesses or representatives of individual businesses publicly opposed the ban.

Amazon did not submit any public testimony regarding the ban. However, public records show the company spent $24,000 since December to lobby city council staff. Amazon lobbyists met with staff in the office of Portland City Council Commissioner Jo Ann Hardesty, who helped lead the charge to enact the ban.

“[Amazon is] hoping that they can stop it, and they can’t,” Hardesty told me in May. “If they can’t stop it, they’re hoping to soften the language so that they can have more wiggle room. And they also won’t be able to do that.”

Amazon has a vested interest in facial recognition technology, even locally. The Washington County Sheriff’s Office near Portland used Amazon’s Rekognition system from June 2016 until June 2020, when the company announced it would place a one-year moratorium on police use of the software in response to the national racial justice movement.

Records show that this was the first time Amazon has lobbied Portland city government.

Amazon declined to comment when contacted by GeekWire on Thursday.

The Information Technology and Innovation Foundation, a group linked to Amazon, previously spoke out against Portland’s proposed ban. The ITIF board includes top lobbyists for Amazon and Microsoft, which also sells facial recognition tech.

ITIF wrote an opinion piece published by The Oregonian earlier this year. In it, the group promoted facial recognition as a proven tool of public safety. It said a ban on Portland police use would “prevent law enforcement from using facial recognition technology to find missing persons, catch identity thieves, improve security in crowded venues, and identify victims, witnesses, and perpetrators of crime.”

Both Amazon and Microsoft have called on U.S. lawmakers to enact regulations governing the use of facial recognition technology. Amazon lists facial recognition under its “Our Positions” webpage and says it has proposed guidelines “for effective regulatory frameworks and guardrails that protect individual civil rights and ensures that governments are transparent in their application of the technology.”

The PBA’s Isaacs told the city council in January that a ban on private use of facial recognition could be seen as an anti-tech industry action.

Mayor Wheeler on Wednesday disagreed with that notion. “Portland is far from an anti-technology city,” he said, adding that “we simply demand that our technology protect our information properly while providing the digital services that we need.”

Portland’s ban on city bureau use of facial recognition was in effect immediately following Wednesday’s vote. The ban on use in privately-owned places with public access goes into effect January 1, 2021.

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