[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4368 Introduced in House (IH)]
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116th CONGRESS
1st Session
H. R. 4368
To prohibit the use of trade secrets privileges to prevent defense
access to evidence in criminal proceedings, provide for the
establishment of Computational Forensic Algorithm Standards, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 17, 2019
Mr. Takano introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on
Science, Space, and Technology, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To prohibit the use of trade secrets privileges to prevent defense
access to evidence in criminal proceedings, provide for the
establishment of Computational Forensic Algorithm Standards, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Justice in Forensic Algorithms Act
of 2019''.
SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM STANDARDS.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Director of the National Institute of Standards and
Technology shall establish a program to provide for creation and
maintenance of standards for the development and use of computational
forensic software, to be known as the Computational Forensic Algorithm
Standards, consistent with the following:
(1) Standards shall include an assessment for the potential
for disparate impact, on the basis of race, ethnicity,
socioeconomic status, gender, and other demographic features,
in the development and use of the computational forensic
software.
(2) Standards shall address--
(A)(i) the underlying scientific principles and
methods implemented in computational forensic software;
and
(ii) if, in the case of a particular method, there
are insufficient studies supporting its use, what
studies the Director has conducted to do so, and the
results of such studies;
(B) requirements for testing the software including
the conditions under which it needs to be tested, types
of testing data to be used, testing environments,
testing methodologies, and system performance
statistics required to be reported including--
(i) accuracy, including false positive and
false negative error rates;
(ii) precision;
(iii) reproducibility;
(iv) robustness; and
(v) sensitivity;
(C) requirements for publicly available
documentation by developers of computational forensic
software of the purpose and function of the software,
the development process, including source and
description of training data, and internal testing
methodology and results, including source and
description of testing data;
(D) requirements for laboratories and any other
entities using computational forensic software to
validate it for use, including to specify the
conditions under which the lab has validated it for
their use, requirements for what information needs to
be included in a public report on the lab or other
entity's validation, and requirements for internal
validation updates when there are material changes to
the software; and
(E) requirements for reports provided to defendants
by prosecution produced documenting the use and results
of computational forensic software in individual cases.
(3) Standards shall be issued as a rulemaking under section
553 of title 5, United States Code.
(4) The Director shall consult with outside experts in
forensic science, bioethics, algorithmic discrimination, data
privacy, racial justice, criminal justice reform, exonerations,
and other relevant areas of expertise identified through public
input.
(b) Protection of Trade Secrets.--The Federal Rules of Evidence are
amended by adding at the end of article V the following:
``RULE 503. PROTECTION OF TRADE SECRETS IN A CRIMINAL PROCEEDING.
``In any criminal case, trade secrets protections do not apply when
defendants would otherwise be entitled to obtain evidence.''.
(c) Requirements for Federal Use of Forensic Algorithms.--Any
Federal law enforcement agency or crime laboratory providing services
to a Federal agency using computational forensic software may use only
software that has been tested under the National Institute of Standards
and Technology's Computational Forensic Algorithm Testing Program and
shall conduct an internal validation according to the requirements
outlined in the Computational Forensic Algorithm Standards and make the
results publicly available. The internal validation shall be updated
when there is a material change in the software that triggers a
retesting by the Computational Forensic Algorithm Testing Program.
(d) Requirements for Testing.--The Director of the National
Institute of Standards and Technology shall establish a Computational
Forensic Algorithm Testing Program, whose activities include the
following:
(1) Testing individual software programs using the testing
requirements established in the Computational Forensic
Algorithm Standards.
(2) Using realistic sample testing data similar to what
would be used by law enforcement in criminal investigations in
performing such testing, including incomplete and contaminated
samples.
(3) Using testing data that represents diversity of racial,
ethnic, and gender identities and intersections of these
identities in performing such testing.
(4) Using testing data that tests the limits of the
software and demonstrates the boundaries of reliability
described in the performance measures defined in the
Computational Forensic Algorithm Standards in performing such
testing.
(5) Publishing the results of testing the software online
including results under conditions specified in the standards
and across diversity of racial, ethnic, and gender identities
and intersections of these identities in a publicly available
format.
(e) Testing Frequency.--Retesting shall be conducted when a
material change is made to the software that impacts its performance
and may affect its outputs. The Director shall establish requirements
for determining whether changes are material or nonmaterial.
(f) Discovery in Criminal Cases.--Rule 16 of the Federal Rules of
Criminal Procedure is amended--
(1) in subdivision (a)(1), by adding at the end the
following:
``(H) Use of Computational Forensic Software. Any
results or reports resulting from analysis by
computational forensic software shall be provided to
the defendant, and the defendant shall be accorded
access to an executable copy of the version of the
computational forensic software, as well as earlier
versions of the software, necessary instructions for
use and interpretation of the results, and relevant
files and data, used for analysis in the case and
suitable for testing purposes. Such a report on the
results shall include--
``(i) the name of the company that
developed the software;
``(ii) the name of the lab where test was
run;
``(iii) the version of the software that
was used;
``(iv) the dates of the most recent changes
to the software and record of changes made,
including any bugs found in the software and
what was done to address those bugs;
``(v) documentation of procedures followed
based on procedures outlined in internal
validation;
``(vi) documentation of conditions under
which software was used relative to the
conditions under which software was tested; and
``(vii) any other information specified by
the Director of the National Institute of
Standards and Technology in the Computational
Forensic Algorithm Standards.''.
(g) Inadmissibility of Certain Evidence.--The Federal Rules of
Evidence are amended by adding at the end of article I the following:
``RULE 107. INADMISSIBILITY OF CERTAIN EVIDENCE THAT IS THE RESULT OF
ANALYSIS BY COMPUTATIONAL FORENSIC SOFTWARE.
``In any criminal case, evidence that is the result of analysis by
computational forensic software is admissible only if--
``(1) the computational forensic software used has been
submitted to the Computational Forensic Algorithm Testing
Program of the Director of the National Institute of Standards
and Technology and there have been no material changes to that
software since it was last tested; and
``(2) the developers and users of the computational
forensic software agree to waive any and all legal claims
against the defense or any member of its team for the purposes
of the defense analyzing or testing the computational forensic
software.''.
(h) Definitions.--In this Act:
(1) Computational forensic software.--The term
``computational forensic software'' means software that relies
on an automated or semiautomated computational process,
including one derived from machine learning, statistics, or
other data processing or artificial intelligence techniques, to
process, analyze, or interpret evidence.
(2) Material change.--The term ``material change'' means an
update to computational forensic software that may affect the
performance measures defined in the Computational Forensic
Algorithm Standards or the use or output of the software.
(3) Nonmaterial change.--The term ``nonmaterial change''
means an update to computational forensic software that does
not affect the performance measures, use, or output of the
software.
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