Portland police and other city agencies are now banned from using facial recognition technology, but a proposal going before city voters would add teeth to that ordinance by making any violation grounds for a lawsuit and possible termination of employees.

City councilors voted in August to ban the use of facial surveillance technology by city employees, but they did not include any enforcement provisions. The council cited potential collective bargaining impacts and other concerns when deciding not to include enforcement details.

Glen Gallik, a volunteer with the People First Portland campaign working to pass the measure, said the enforcement provisions are needed to strengthen the ordinance and protect people’s civil rights.

The provisions that are proposed to city voters would allow people to sue the city for illegal surveillance, require the city to suppress evidence illegally obtained through facial surveillance and make violations of the ordinance by city employees grounds for suspension or termination.

The ordinance – one of five referenda placed on the Nov. 3 ballot by the Southern Maine Democratic Socialists of America – would allow a private citizen to receive $100 per violation, or $1,000, whichever is greater, plus attorney’s fees. Such penalties would also encourage more training, Gallik said.

“What the city has done is ban facial surveillance with no repercussions,” he said. “This is a much stronger ban. Setting out penalties for violating the law and setting out ways for individuals to redress these grievances makes violating the law and performing illegal surveillance much more costly and much less likely.”

Facial recognition works by using a digital image to map a person’s dominant facial features, such as eye shape and spacing, as well as jaw and nose lines. Software measures the distances between dozens of reference points, creating a unique profile similar to a fingerprint. The profile is then compared to the faces in existing databases, such as those that contain driver’s license, state ID and passport photos or police mugshots.

Its use has spread among law enforcements agencies, which have argued it can be a powerful tool to protect public safety and investigate crimes. But there has been little public notice about its use or policies that could protect privacy or prevent abuses and surveillance of innocent citizens.

People First Portland PAC, the organization leading the referenda campaigns, had raised more than $23,000 in support of its campaign to pass all five of its initiatives. About two-thirds of that support, $15,000, has come from unions, while the bulk of individual donations came from people donating under $50. The campaign had a little more than $9,700 remaining for the final month of the campaign.

There doesn’t appear to be any organized opposition to Question B.

The use of facial recognition technology has alarmed civil liberties advocates here and nationally, who worry about expansive police surveillance. The technology has been shown to misidentify people of color, especially women of color, at much higher rates than whites.

Banning facial recognition was one of the demands issued by Black POWER, the group formerly called Black Lives Matter Portland, in response to nationwide protests against police brutality in the wake of the May killing of George Floyd, who died after a white police officer in Minneapolis knelt on his neck for several minutes.

Portland’s police chief and other city officials have said they do not use the technology, but urged the city not to ban its use because it could be useful to protect public safety in the future.

The Portland Press Herald/Maine Sunday Telegram revealed that the Maine Information and Analysis Center – a secretive Maine State Police unit known as a fusion center where federal, state and local authorities collect and share information – had been testing facial recognition software and tried to conceal it from the public by using a little-known provision in Maine law. Legislators are now trying to eliminate that provision, although the pandemic has delayed the bill. A whistleblower later claimed the center was illegally spying on peace activists and building a de facto gun registry, prompting more scrutiny from state lawmakers.

The city’s ban doesn’t apply to the Maine State Police, but would prevent the technology’s use by the city police department and by agencies that oversee the airport and port facilities.

Although there’s no formal opposition, the city’s top attorney, Danielle West-Chuhta, outlined several concerns with the enforcement provisions of the referendum in a memo ahead of the council’s Aug. 3 vote.

West-Chuhta said the language making an ordinance violation grounds for suspension or termination would require union negotiations, because it’s a change in working conditions. It also removes the discretion from supervisors to impose lesser discipline, she said, adding that such a provision is not needed, because violations of law, rules or orders are already grounds for discipline.

West-Chuhta said case law is unclear about whether a resident can sue the city over ordinance violations. She said case law has established that no such action can be taken with regard to land use ordinances and state law “strongly suggests” that municipalities alone are responsible for enforcing ordinances.

“The case for a private right of action in this context might be strengthened if the City was simply expanding an existing right provided for in state law, such as in the case of the minimum wage ordinance that was passed previously by the City Council,” she wrote. “Here, however, the City is creating an entirely new right – the right to pursue a claim for violations of the proposed facial recognition ordinance – which does not currently exist in the state or federal law.”

West-Chuhta said the proposal before voters requires the city to suppress all evidence collected in violation of the ordinance, but only a judge can order evidence to be suppressed.

That analysis was contested by the ACLU of Maine.

“Facial recognition technology threatens civil liberties, especially the civil liberties of Black women and femmes,” ACLU of Maine policy counsel Michael Kebede said in an Aug. 3 memo to the city. “Because of this danger, it is important for the City of Portland to not only ban the use of facial recognition technology, but to also provide enforcement mechanisms should the law be broken.”

Kebede pushed back against West-Chuhta’s legal conclusions. He said the evidence suppression clause is “entirely legal and appropriate,” because it only applies to city employees, not state or federal authorities. And he said the Maine Supreme Judicial Court “has been permissive of municipal ordinances creating private rights of action and attorney’s fees provisions.”

Kebede also argued that the city was making too much out of the potential collective bargaining impacts of the provision making an ordinance violation grounds for suspension or termination, saying that ordinance changes supersede any contracts. He also noted that the ordinance does not change the grievance process, or take away one’s ability to appeal disciplinary actions. And it does not require the city to suspend or terminate any employee who violates the law, he said.

“Authorizing such discipline incentivizes appropriate training so that City employees know what the law is and how to appropriately comply with it,” he said.

The full ordinance can be read on the city’s website.

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