[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2878 Introduced in Senate (IS)]
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116th CONGRESS
1st Session
S. 2878
To limit the use of facial recognition technology by Federal agencies,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 14, 2019
Mr. Coons (for himself and Mr. Lee) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To limit the use of facial recognition technology by Federal agencies,
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 ``Facial Recognition Technology
Warrant Act of 2019''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Agency.--The term ``agency'' has the meaning given the
term in section 551 of title 5, United States Code.
(2) Covered court order.--The term ``covered court order''
means a court order obtained in accordance with rule 41 of the
Federal Rules of Criminal Procedure and in connection with the
investigation of an offense for which an order could be sought
under section 2516 of title 18, United States Code.
(3) Facial recognition technology.--The term ``facial
recognition technology'' means technology that analyzes facial
features and is used for the unique personal identification of
individuals in still or video images.
(4) Ongoing surveillance.--The term ``ongoing
surveillance''--
(A) means the utilization of facial recognition
technology to engage in a sustained effort to track the
physical movements of an identified individual through
1 or more public places where such movements occur over
a period of time greater than 72 hours, whether in real
time or through application of such technology to
historical records; and
(B) does not include instances where facial
recognition technology is utilized for a single
identification or attempted identification of an
individual, if no subsequent attempt is made to track
that individual's movement in real time or through the
use of historical records after the individual has been
identified.
SEC. 3. LIMITATION ON USE OF FACIAL RECOGNITION TECHNOLOGY.
(a) In General.--Subject to subsection (b), an officer or employee
of an agency may not use facial recognition technology to engage in
ongoing surveillance of an individual or group of individuals in a
public space, unless--
(1) the use of the facial recognition technology is in
support of a law enforcement activity; and
(2)(A) a covered court order has been obtained to allow the
use of facial recognition technology for ongoing surveillance
of the individual or group of individuals; or
(B) an investigative or law enforcement officer--
(i) reasonably determines that exigent
circumstances and compelling law enforcement needs make
it impractical to obtain a covered court order;
(ii) reasonably determines that there are grounds
for which a covered court order could be obtained under
subparagraph (A); and
(iii) causes an application for a covered court
order to be made in accordance with subparagraph (A)
not later than 48 hours after the use of facial
recognition technology to engage in ongoing
surveillance.
(b) Requirement.--If an application for a covered court order made
under subsection (a)(2)(B) is denied, the use of facial recognition
technology shall terminate at the time of the denial.
(c) Duration of Orders.--
(1) In general.--Subject to paragraph (2), a covered court
order may only authorize ongoing surveillance until the date on
which the objective of the order is satisfied, except that such
order may not authorize ongoing surveillance for a period of
longer than 30 days.
(2) Requirement.--The 30-day period described in paragraph
(1) shall begin on the earlier of--
(A) the date on which the agency begins to use
facial recognition technology; or
(B) the date that is 10 days after the court order
is issued.
(3) Extension.--A court may grant an extension of the 30-
day period described in paragraph (1) if the extension
satisfies the requirements of subsection (a)(2)(A) and such
extension may last not longer than 30 days.
(d) Minimization Requirement.--Any use of facial recognition
technology pursuant to a covered court order shall be conducted in such
a way as to minimize the acquisition, retention, and dissemination of
information about the individuals other than those for whom there was
probable cause to seek the covered court order obtained under
subsection (a)(2)(A).
(e) Motion To Suppress.--
(1) In general.--Except as provided in paragraph (2), any
aggrieved individual who has been the subject of ongoing
surveillance using facial recognition technology, in any trial,
hearing, or proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of the
United States, a State, or a political subdivision thereof, may
move to suppress information directly obtained through the use
of facial recognition technology, or evidence derived
therefrom, in violation of this section, on the grounds that--
(A) the information was unlawfully obtained;
(B) the order of authorization or approval under
which the information was obtained is insufficient on
its face; or
(C) the use of facial recognition technology was
not used in conformity with the order of authorization
or approval.
(2) Exception.--Evidence obtained through the use of facial
recognition technology in violation of this section shall not
be suppressed under paragraph (1) if the evidence was acquired
by an officer or an employee of an agency with an objectively
reasonable belief that the use of facial recognition technology
was in compliance with this section.
(3) Requirement.--A motion described in paragraph (1) shall
be made before the trial, hearing, or proceeding unless there
was no opportunity to make such motion or the individual was
not aware of the grounds of the motion. If the motion is
granted, the information directly obtained through the use of
facial recognition technology, or evidence derived therefrom,
shall be treated as having been obtained in violation of this
section.
(4) Inspection of information.--The judge, upon the filing
of a motion under this subsection by the aggrieved individual,
may in his or her discretion make available to the aggrieved
individual or counsel of the aggrieved individual for
inspection such portions of the information or evidence derived
therefrom as the judge determines to be in the interests of
justice.
(5) Appeal.--In addition to any other right to appeal, the
United States shall have the right to appeal from an order
granting a motion to suppress made under this subsection, or
the denial of an application for an order of approval, if the
United States attorney shall certify to the judge or other
official granting such motion or denying such application that
the appeal is not taken for purposes of delay. Such appeal
shall be taken within 30 days after the date the order was
entered and shall be diligently prosecuted.
(6) Limitation.--The remedies and sanctions described in
this subsection with respect to the use of facial recognition
technology are the only judicial remedies and sanctions for
nonconstitutional violations of this section involving such
technology.
(f) Foreign Intelligence Information.--Nothing in this section
shall be construed to affect the use of facial recognition technology
to engage in ongoing surveillance connected with the acquisition of
foreign intelligence information, as defined in section 101(e) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)).
SEC. 4. REPORTS ON GOVERNMENT USE OF FACIAL RECOGNITION TECHNOLOGY.
(a) Report by Judge.--Not later than 30 days after issuance of a
covered court order under section 3(a)(2)(A) or an extension thereof
under section 3(c)(3), or the denial of such a warrant or extension,
the issuing or denying judge shall report to the Administrative Office
of the United States Courts--
(1) the fact that a warrant or extension was applied for;
(2) the fact that the warrant or extension was granted as
applied for, was modified, or was denied;
(3) the period of time for which the warrant approves the
use of facial recognition technology, and the number and
duration of any extensions; and
(4) the offense specified in the warrant or application.
(b) Reports.--Beginning 1 year after the date of enactment of this
Act, and not later than September 30 of each year thereafter, the
Director of the Administrative Office of the United States Courts shall
transmit to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives, and make
available to the public, a full and complete report summarizing the
data required to be filed with the Administrative Office under
subsection (a), including--
(1) the number of applications for covered court orders and
extensions authorizing delayed notice;
(2) the number of covered court orders and extensions
granted or denied during the preceding fiscal year;
(3) for each covered court order or extension granted--
(A) the period of time for which the warrant
approves the use of facial recognition technology, and
the number and duration of any extensions;
(B) the offense specified in the covered court
order or application, or extension of an order;
(C) the identity of the applying investigative or
law enforcement officer and agency making the
application and the person authorizing the application;
and
(D) the nature of the facilities or cameras from
which the data analyzed by facial recognition
technology came from;
(4) a general description of the identifications made under
a covered court order or extension, including--
(A) the approximate nature and frequency of use of
the facial recognition technology;
(B) the approximate number of persons who were
subjected to analysis using the facial recognition
technology; and
(C) the approximate nature, amount, and cost of the
manpower and other resources during the use of the
facial recognition technology; and
(5) the number of misidentifications, including any arrest
of an individual that does not result in charges being entered
against the individual, made based upon information directly
obtained through the use of facial recognition technology, or
evidence derived therefrom.
(c) Regulations.--The Director of the Administrative Office of the
United States Courts, in consultation with the Attorney General, may
issue guidance regarding the content and form of the reports required
to be filed under subsection (a).
SEC. 5. HUMAN REVIEW AND TESTING.
(a) Human Review of Facial Recognition Technology.--An agency shall
require a trained officer to examine the output or recommendation of
any facial recognition system before the agency investigates or
otherwise interacts with an individual identified by the system in
connection with a covered court order issued under section 3(a)(2)(A)
or in connection with an emergency under section 3(a)(2)(B).
(b) Testing.--The head of each agency, in consultation with the
Director of the National Institute of Standards and Technology, shall
establish testing procedures regarding all facial recognition
technology systems used by the agency, including a process to--
(1) periodically undertake independent tests of the
performance of the system in typical operational conditions;
(2) identify relative performance across different
subpopulations, including error rates when the system is tested
across subpopulations, alone and in combination with, different
skin tones, ages, and genders; and
(3) review such tests and take action to improve the
accuracy of the system across subpopulations upon a finding
indicating there are disparate error rates when the system is
tested across subpopulations.
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