Cities have taken the lead when it comes to regulating facial recognition technology. Currently, there is no federal regulation on this kind of technology, nor any policy in place to govern the use of the data obtained through facial recognition. Three cities in California (San Francisco, Oakland and Berkeley) and Boston have banned the use of facial recognition altogether for their local law enforcement agencies. The state of Oregon has a law on the books banning police use of body cameras with facial recognition technology.

The city of Portland has drawn significant attention recently due to the city’s protests and civil unrest. The U.S. Marshals Service confirmed that it used surveillance technology near the heart of the protest at the Multnomah County Justice Center in downtown Portland.

A National Institute of Standards and Technology report released at the end of 2019 provided that the majority of facial recognition technologies have systemic issues that present varied levels of accuracy based on a person’s age, gender or race. For example, the study showed Asian and African American people being up to 100 times more likely to be misidentified than white men, depending on the particular algorithm and type of search. Native Americans had the highest false-positive rate of all ethnicities. These demographic differences extend to gender, as well. African American women were falsely identified more often when compared to large groups of others while conducting a police investigation and women generally were more likely to be falsely identified than men, and the elderly and children were more likely to be misidentified than those in other age groups. Meanwhile, middle-aged white men generally received the highest accuracy rates.

In an effort to curb some of the disparities, the Portland City Council unanimously passed what they purport to be the toughest facial recognition ban in the nation. In one of the two ordinances, the legislation is introduced by saying that “Portland residents and visitors should enjoy access to public spaces with a reasonable assumption of anonymity and personal privacy. This is true for particularly those who have been historically over surveilled and experience surveillance technologies differently.” The bills define facial recognition to mean “automated searching for a reference image in an image repository by comparing the facial features of a probe image with the features of images contained in an image repository.”

The Portland ban is distinct because it prohibits, with some exceptions, both public and private use of facial recognition technology. The three California cities and Boston prevent public institutions from using facial recognition. Portland’s legislation bans the use of facial recognition technology by private entities in public accommodations. While both the public and private prohibition are considered part of the same agenda, they did get passed through separate ordinances. Both will take effect in January 2021. This prohibition would not extend to the use of technology to unlock personal devices.

The city council passed these two bills to serve as a model for other cities in the nation. Lawmakers introduced Congressional legislation this June to ban federal government use of facial recognition software. The bills have not moved substantially. Without federal action, we may face piecemeal and varied responses to grand technology and privacy issues.