Portland’s City Council Monday postponed action until June 15 on a proposed ban on facial recognition technology.
Councilors planned to hold a workshop before that date and told city staff not to pursue use of the technology until after the council has addressed the issue.
The proposed ordinance, sponsored by Councilor Pious Ali, would prohibit staff from obtaining, retaining, accessing, or using any facial recognition technology or information provided by any facial recognition technology.
Ali said he suggested the ban to protect privacy and civil liberties, and because of the propensity of the technology to falsely identify women and people of color. He and others expressed concern the technology would have a chilling effect on people using public services or simply going about their business in the city.
“I want people to be able to come into City Hall and go to schools and walk the streets and feel safe,” Ali said previously.
The ban has been on the table for several months. It had a first reading Oct. 21, 2019, a second Nov. 4, and was postponed to Nov. 18 and then to Monday night’s meeting.
Brendan McQuade, a professor of criminology at the University of Southern Maine, warned during a public comment period Nov. 18 that systems operated by different entities can easily be networked, and track people from place to place.
“Individuals who are monitored would be less likely to contemplate public activities that might offend powerful interests if they know their image would be captured and broadcast to anyone who wants to know,” McQuade said. “Many institutions function on relative anonymity. If people could be identified just by looking in a store window or eating at a restaurant, it would be a tremendous change for our conception of public space.”
Steven Biel of Progressive Portland called the technology an “automated profiling wrongful arrest machine” that would undermine the city’s resolution to not ask for immigration status of people who use city services.
A lobbyist representing Microsoft opposed the ban, saying that while the company encourages regulation of the technology, an outright ban is not appropriate.
Some councilors last year expressed concern that the resolution was too broad, and might not allow for some benign uses of the technology, such as processing international cruise and airline passengers.
Councilor Justin Costa said he did not want to hamstring the city’s ability to run an airport effectively. Councilor Belinda Ray pointed out airports are exempt from San Francisco’s facial recognition ban.
Councilors had been informed in November that city staff was not using or pursuing the technology, and decided that since its use was not imminent, the discussion and potential referral could be postponed until after new committees had been established by the new mayor and councilors, who would be sworn in the following month.
In the turnover, the ban lost two strong supporters, including Councilor Brian Batson, the measure’s cosponsor, who was the only councilor to oppose postponing the vote.
“We operate fine without this technology currently,” Batson said. “This is an advanced form of technology that is similar to styles of profiling that have failed us in the past.”
Then-Mayor Ethan Strimling also indicated he had concerns about the technology.
Since then, both the police chief and airport director confirmed in memos to the council that neither the Police Department nor Portland International Jetport were using the technology. But they both opposed a ban because they see potential for its future use.
“A ban on facial recognition technology would only take away a potential tool that is helping increase efficiencies and provide assistance for crime victims and people in crisis in other jurisdictions,” Police Chief Frank Clark told councilors.
He listed positive uses of the technology, such as identifying people who are unconscious or deceased, and wandering elderly people with possible dementia, or aiding in exonerating people who have been misidentified by eyewitnesses.
Clark noted that no enforcement action can be taken based solely on the technology. Computers can come up with a list of potential matches, but a match can only be determined by a trained human examiner, which is the same way fingerprint identification is handled, he said.
Speaking to the Phoenix after the Jan. 6 council meeting, Clark said the Police Department has several evidence technicians who are trained to evaluate and assess any potential matches that the automated fingerprint identification system, called AFIS, provides.
“(They) actually go through it point by point and see whether or not there is an actual match or just a possible match,” he said, adding that the same would be done for potential matches identified by facial recognition software if it were deployed by the department.
Airport Director Paul Bradbury told councilors facial recognition technology is being rapidly deployed at airports across the country for processing international flights. Delta and JetBlue airlines, which serve Portland, use it at other airports, he said, and Delta plans to use it at all its hubs by the end of the year.
Further, the language of the ban prohibiting staff from obtaining the technology might hinder plans to develop a Federal Inspection Service at the jetport. While facial recognition would only be used by airline and U.S. Customs and Border Protection staff, it would be in part obtained through construction contracts signed by the jetport, Bradbury said.
While most councilors agreed Monday night that the issue is an important one, some noted that it had not been identified as a council priority and that if it were referred to a committee it may take up much of the committee’s time, or be placed late on its schedule. Councilors debated postponing discussion of any potential ban indefinitely, until a time when city staff request using the technology and identify a particular software system that could be evaluated.
But Councilor Justin Costa urged the council to be proactive on the issue, and supported the workshop and June discussion.
“If we wait for something specific to come along I think it’s already going to be too late,” Costa said. “The issue is going to arise with interactions of much larger entities: federal government agencies, private entities, people that have access to much larger systems.”
Mayor Kate Snyder agreed.
“I do think this is an important matter,” Snyder said. “I support postponement to June 15 and I see no harm in asking staff for communication between now and then to state intent with regard to bringing any issues that might come up in the meanwhile to council.”
The five-month delay might also yield more examples of how other municipalities and the state respond to the technology, councilors suggested.
The state ended its ban on collecting biometric data for driver’s licences when it enacted its Real ID law in 2017. A bill before the Transportation Committee, LD 1899, would allow the secretary of state to share that data, including facial recognition, with law enforcement.