On September 9, 2020, Portland, Oregon, became the first U.S. city to ban the private sector use of facial recognition technology (“FRT”).  The new ordinance takes effect on January 1, 2021.  At the same time, the city passed another ordinance, effective immediately, banning the use of FRT by city bureaus.  This is similar to ordinances already on the books in Boston, San Francisco, and Oakland.

In passing the private sector ban, the Portland City Council stated that Portland residents and visitors should be able to enjoy access to public spaces with a reasonable assumption of anonymity and personal privacy.  The City Council also stated that in certain cases FRT has been shown to be less accurate in identifying women and minorities and that the city needs to take precautionary actions until FRT is safe to use and civil liberties issues have been resolved.

The private sector ban is limited to places of public accommodation, including lodgings, amusements, and transportation, but excluding places of accommodation that are in their nature distinctly private, such as private residences and clubs.  In addition, the ban does not apply (1) when the use of FRT is necessary to comply with federal, state or local laws; (2) when an individual uses FRT for verification purposes to access a personal or employer-issued device; or (3) when FRT is used in automatic face detection services in social media applications.

A person injured by a material violation of the ordinance will have a private right of action for actual damages or $1,000 per day for each day of violation, whichever is greater, and such other remedies as may be appropriate.  The ordinance also permits recovery of reasonable attorney fees, provided that the plaintiff makes a written demand for damages no less than 30 days before filing suit and the defendant does not make a settlement offer prior to the plaintiff’s filing suit equal to or greater than the amount of damages ultimately awarded.

For further information, please contact: 

Seth D. Rothman | Partner 
Hughes Hubbard & Reed LLP
One Battery Park Plaza | New York, NY 10004-1482
Office +1 (212) 837-6872 | Cell +1 (917) 697-8093
seth.rothman@hugheshubbard.com | bio

Paul Marston | Counsel
Hughes Hubbard & Reed LLP
Kojimachi Place, 9th Floor, 2-3 Kojimachi | Chiyoda-ku, Tokyo 102-0083, Japan
Office +81-3-6272-5831 | Cell +81-80-8432-3497
paul.marston@hugheshubbard.com | bio