Portland ban using facial recognition software in public

City lawmakers are taking action over recognition as the push for federal laws continue to lag.

The ban will take effect in January 2021 and will levy $1,000-per-day fines against people who violate it. The rules were passed unanimously by the city council, which received hundreds of messages and testimonies criticizing stores for starting to use facial recognition tools against alleged shoplifters.

San Francisco, Boston, and Oakland have all passed their own bans restricting government entities from using facial recognition software but Portland's ban became the first in the country to prohibit corporations from using facial recognition in “places of public accommodation.”

“All Portlanders are entitled to a city government that will not use technology with demonstrated racial and gender biases that endanger personal privacy,” Portland Mayor Ted Wheeler said during last Wednesday's City Council meeting.

“This is the first of its kind legislation in the nation, and I believe in the world. This is truly a historic day for the city of Portland.”

Debate over facial recognition software continues to rage after a summer of high-profile news related to the technology. Amazon, IBM, and other major tech companies decided in June to put a moratorium on all police department use of facial recognition software after years of studies showing almost all of the available tools have high error rates and specifically cannot identify the faces of people with darker skin.

Later that same month, the ACLU revealed that it was representing a man from Detroit who was arrested in front of his wife and kids based on a mistake by the Detroit Police Department's facial recognition software.

Just a day later, US Senators Ed Markey and Jeff Merkley announced the Facial Recognition and Biometric Technology Moratorium Act, which they said resulted from a growing body of research that “points to systematic inaccuracy and bias issues in biometric technologies which pose disproportionate risks to non-white individuals.”

As with the other recent developments related to facial recognition, experts both praised and criticized the Portland ban. While many highlighted the extensive number of scientific studies proving that facial recognition is not ready for widespread use, others said the ban related to private companies went too far.

Lou Morentin, vice president of compliance and risk management with cybersecurity firm Cerberus Sentinel, said the technology is still in its infancy and no matter what the companies behind them say, there still is not a reliable methodology for identification purposes.

While the tech was initially marketed toward security organizations and police forces, multiple companies are now pushing facial recognition software to department stores and retail outlets as a way to deal with shoplifters.

Jacksons Food Store, with dozens of outlets across Portland, recently began using a facial recognition system and other major stores like Macy's have begun to implement them, raising questions about who would be in charge of photo databases, what happens in the event of a misidentification and how long photos are kept.

“As highlighted over the last several months in different scenarios, the software has severe limitations when it comes to gender and ethnic identification factors. To rely on such an application at this time is foolhardy at best and can lead to not just misidentification but also litigation from false ‘positives,'” Morentin said.

“While the city of Portland is taking a hard line on prohibiting these applications, ultimately, we will need legislation at the federal level. Until a cohesive national policy can be formulated, state and local agencies may create a challenging hodgepodge of regulations that will make challenges for businesses and consumers.”

A cybersecurity expert and former special counsel to the Secretary of the Navy, Robert Cattanach, criticized the ban and said the city was not taking into account the potential benefits of facial recognition software.

He acknowledged that the indiscriminate use and misuse of the technology was well-known but said that it should not be dwarfed by the upsides of facial recognition.

“What about the potential benefits, especially those predicated upon voluntary and informed consent? Significant efficiencies and convenience with consensual screening at airports; improved security in public settings to identify known terrorists; and invaluable assistance to law enforcement in appropriate emergency settings,” Cattanach said.

“By making the ban absolute and eliminating any opportunity for balance, Portland's approach preempts any possible dialogue among stakeholders and may be imposing a one-size-fits all solution in a highly pressurized and politicized setting, for a problem arguably deserving of more thoughtful assessment as the technology improves and its beneficial uses continue to emerge.”

Others said that while the technology may have positive uses in theory, the people and companies behind most facial recognition softwares did not have an awareness of how potential inaccuracies with it could affect someone's life.

Chloé Messdaghi, vice president of strategy at Point3 Security, noted that even in the earliest days of its use, the technology has already led to dozens of misidentifications and wrongful detentions, highlighting the deeper social and legal issues with it.

“Many if not all facial recognition technologies have been developed by teams with a striking lack of diversity, and as a result, unconscious biases are deeply ingrained in the code. This has led to wrongful arrests on flimsy heresy evidence corroborated solely by flawed facial recognition technology, and the infringement of the civil liberties of people, including their most personal freedoms and their right to privacy,” Messdaghi said.

“It may violate the individual's right to privacy even if they are not subjected to arrest or other actions, because it denies people of the opportunity to give or withhold consent, and in doing so, infringes on the right to freedom of association, assembly, and expression.”

Lia Holland, a Portland resident and activist with advocacy group Fight for the Future, spoke at a hearing on the city's facial recognition ban and told TechRepublic that the ordinances “were prompted by the need to address the aggressive marketing of experimental facial recognition technology to businesses and governments as a Band-Aid for systemic social ills.”

She also criticized Amazon for reportedly spending $24,000 to lobby against the ordinances, saying that it showed their moratorium in June rang hollow.

“Amazon is hiding behind pretty words while quietly spending money to ensure they can resume business as usual once the public eye turns to the next crisis. Imagine being misidentified as a shoplifter at Rite Aid and when you go to pick up your prescription, the doors won't open. No court, no recourse. Just an algorithm purposely made too complex to scrutinize,” Holland said.

“Now, cities across the country must look to Portland and pass bans of their own. And, Congress should act to pass bans at the federal level. We have the momentum, and we have the will to beat back this dangerous and discriminatory technology.”

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