[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9061 Introduced in House (IH)]

<DOC>






117th CONGRESS
  2d Session
                                H. R. 9061

 To regulate law enforcement use of facial recognition technology, and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 29, 2022

Mr. Lieu (for himself, Ms. Jackson Lee, Ms. Clarke of New York, and Mr. 
    Gomez) 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 regulate law enforcement use of facial recognition technology, 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 Act of 2022''.

SEC. 2. INELIGIBILITY FOR CERTAIN FUNDS.

    In the case of a State or unit of local government that received a 
grant award under subpart 1 of part E of title I of the Omnibus Crime 
Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), if the 
State or unit of local government fails to substantially to comply with 
the requirements under this Act for a fiscal year, the Attorney General 
shall reduce the amount that would otherwise be awarded to that State 
or unit of local government under such grant program in the following 
fiscal year by 15 percent.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Arrest photo database.--The term ``arrest photo 
        database'' means a database populated primarily by booking or 
        arrest photographs or photographs of persons encountered by an 
        investigative or law enforcement officer.
            (2) Candidate list.--The term ``candidate list'' means the 
        top images that a facial recognition system determines to most 
        closely match a probe image.
            (3) Derived.--The term ``derived'' means that a Federal or 
        State government would not have possessed the information or 
        evidence but for the use of facial recognition, regardless of 
        any claim that the information or evidence is attenuated from 
        such recognition, and would inevitably have been discovered or 
        obtained the information or evidence through other means.
            (4) Facial recognition.--The term ``facial recognition'' 
        means an automated or semi-automated process that assists in 
        identifying or verifying an individual or captures information 
        about an individual based on the physical characteristics of an 
        individual's face, head or body, or that uses characteristics 
        of an individual's face, head or body, to infer emotion, 
        associations, activities, or the location of an individual.
            (5) Face surveillance.--The term ``face surveillance'' 
        means the use of facial recognition with real-time or stored 
        video footage to track, observe, or analyze the movements, 
        behavior, data, or actions of an individual or groups of 
        individuals.
            (6) Illegitimately obtained information.--The term 
        ``illegitimately obtained information'' means personal data or 
        information that was obtained--
                    (A) in a manner that violates Federal, State, or 
                Tribal law;
                    (B) in a manner that violates a service agreement 
                between a provider of an electronic communication 
                service to the public or a provider of a remote 
                computing service and customers or subscribers of that 
                provider;
                    (C) in a manner that is inconsistent with the 
                privacy policy of a provider described in subparagraph 
                (B), if applicable;
                    (D) by deceiving a person whose information was 
                obtained;
                    (E) through the unauthorized access of an 
                electronic device or online account;
                    (F) in violation of a contract, court settlement, 
                or other binding legal agreement; or
                    (G) from unlawful or unconstitutional practices by 
                any government official or entity.
            (7) Investigative or law enforcement officer.--The term 
        ``investigative or law enforcement officer'' means--
                    (A) any officer of a State or a political 
                subdivision thereof, or of the United States, who is 
                empowered by law to conduct investigations of or to 
                make arrests for civil or criminal offenses or 
                violations of Federal or State law and any attorney 
                authorized by law to prosecute or participate in the 
                prosecution of such offenses; and
                    (B) does not include any officer, employee, or 
                contractor of a State department of motor vehicles.
            (8) Law enforcement agency.--The term ``law enforcement 
        agency'' means any agency of the United States authorized to 
        engage in or supervise the prevention, detection, 
        investigation, or prosecution of any violation of civil or 
        criminal law.
            (9) Probe image.--The term ``probe image'' means an image 
        of a person that is searched against a database of known, 
        identified persons or an unsolved photo file.
            (10) Prosecutor.--The term ``prosecutor'' means the 
        principal prosecuting attorney of a State or any political 
        subdivision thereof and any attorney for the Government (as 
        such term is defined for the purposes of the Federal Rules of 
        Criminal Procedure).
            (11) Operational testing.--The term ``operational testing'' 
        means testing that evaluates a complete facial recognition 
        system as it is used in the field, including measuring false 
        positive and false negative error rates for field uses of the 
        system on operational or operationally representative data and 
        under the environmental conditions and technical product 
        settings and configurations typically used, as well as 
        assessing the variability of system use by different users.
            (12) Reference photo database.--The term ``reference photo 
        database'' means a database populated with photos of 
        individuals that have been identified, including databases 
        composed of driver's licenses, passports, or other documents 
        made or issued by or under the authority of the United States 
        Government, a State, a political subdivision thereof, databases 
        operated by third parties, and arrest photo databases.
            (13) State.--The term ``State'' means each State of the 
        United States, the District of Columbia, the Commonwealth of 
        Puerto Rico, the Virgin Islands, American Samoa, Guam, and the 
        Northern Mariana Islands.

         TITLE I--USE OF FACIAL RECOGNITION BY LAW ENFORCEMENT

SEC. 101. FACIAL RECOGNITION.

    (a) Reference Photo Databases.--
            (1) In general.--An investigative or law enforcement 
        officer may only use or request facial recognition in 
        conjunction with a reference photo database pursuant to an 
        order issued under subsection (b) and the emergencies and 
        exceptions under subsection (c).
            (2) Maintenance.--
                    (A) In general.--Beginning on 180 days after the 
                date of the enactment of this Act, and every six months 
                thereafter, with respect to an arrest photo database 
                used in conjunction with facial recognition, the 
                custodian of such arrest photo database shall remove 
                from such database all photos of each person who--
                            (i) has not attained 18 years of age;
                            (ii) has been released without a charge;
                            (iii) has been released after charges are 
                        dropped or dismissed; or
                            (iv) was acquitted of the charged offense.
                    (B) Rule of construction.--Nothing in this 
                paragraph shall be construed to prohibit an 
                investigative or law enforcement officer from using a 
                database for other investigative procedures, such as 
                finger printing, and shall only apply to the use of a 
                reference photo database for the use of facial 
                recognition.
            (3) Procedures.--Any agency responsible for maintaining and 
        operating an arrest photo database shall establish procedures 
        to ensure compliance with paragraph (3).
    (b) Orders.--
            (1) Approval.--An application for a warrant to use a 
        reference photo database may not be submitted for consideration 
        by a court unless the head of a law enforcement agency (or a 
        designee) approves such an application.
            (2) Authority.--Except as provided by subsection (d), the 
        principal prosecutor of a State or any political subdivision 
        thereof and any attorney for the Government (as such term is 
        defined for the purposes of the Federal Rules of Criminal 
        Procedure), may make an application to a court of competent 
        jurisdiction for, in conformity with paragraph (3), an order 
        authorizing the use of facial recognition in conjunction with a 
        reference photo database within the jurisdiction of that judge.
            (3) Application.--Except as provided in subsection (c), a 
        court of competent jurisdiction may issue an order authorizing 
        the use of facial recognition in conjunction with a reference 
        photo database if a prosecutor submits an application to that 
        court that establishes the following:
                    (A) The identity of the investigative or law 
                enforcement officer making the application, and the 
                officer authorizing the application.
                    (B) As full and complete a description as possible 
                of the person that the officer seeks to identify.
                    (C) The photos or video portraying the person that 
                will be used to search the reference photo database.
                    (D) Any details regarding other investigative 
                measures taken to identify such person and an 
                explanation for why such measures failed or are 
                reasonably unlikely to succeed.
                    (E) Any other investigative procedures to identify 
                such person have been tried and failed or are 
                reasonably unlikely to succeed.
                    (F) Probable cause to believe that such person has 
                committed or is committing a particular offense or 
                offenses enumerated in section 3559(c)(2)(F) of title 
                18, United States Code.
            (4) Contents of order.--The order described in this 
        paragraph shall include the following:
                    (A) All information required to be included in the 
                application pursuant to such paragraph (3).
                    (B) A prohibition on the use, for purposes of a 
                search of a reference photo database, other than 
                pursuant to another order under this Act, of any photo 
                or video not specifically listed in the order.
                    (C) A time period within which the search shall be 
                made not more than 7 days, and after which no such 
                search may be made, except pursuant to another order 
                under this Act.
                    (D) The authority under which the search is to be 
                made.
            (5) Notice to the public.--
                    (A) In general.--Each State department of motor 
                vehicles shall post notices in conspicuous locations at 
                each department office, make written information 
                available to all applicants at each office, and provide 
                information on the department website regarding State 
                investigative or law enforcement officers' searches of 
                driver's license and ID photos through facial 
                recognition. The notices, written information, and 
                online information must describe how officers use and 
                access facial recognition in criminal investigations.
                    (B) Language requirement.--Notices required under 
                subparagraph (A) shall be posted, as necessary and 
                reasonable, in Spanish or any language common to a 
                significant portion of the department's customers, if 
                they are not fluent in English. The department shall 
                provide translations of the poster and an electronic 
                link that leads to the department's website upon 
                request.
            (6) Conforming amendments.--Section 2721 of title 18, 
        United States Code, is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1), by striking the 
                        ``or'' at the end;
                            (ii) in paragraph (2), by striking the 
                        period at the end and inserting ``; or''; and
                            (iii) by inserting after paragraph (2) the 
                        following:
            ``(3) a department operated facial recognition system, 
        except as provided in subsection (e) of this section.'';
                    (B) in subsection (b)(1), by inserting before the 
                period at the end the following: ``but if the personal 
                information or highly restricted personal information 
                to be disclosed is a person's photograph to be used or 
                enrolled in a law enforcement facial recognition 
                system, only on a case-by-case basis that does not 
                involve the bulk transfer of persons' photographs to a 
                State or Federal law enforcement agency or a qualified 
                third party entity that will allow law enforcement to 
                access those photographs for the purposes of facial 
                recognition''; and
                    (C) by adding at the end the following:
    ``(e) Law Enforcement Access to Facial Recognition Systems.--A 
State department of motor vehicles, and any officer, employee, or 
contractor thereof, may make available a department-operated facial 
recognition system to a State or Federal law enforcement agency, or 
perform searches of such a system on behalf of the agency, only 
pursuant to an order issued under section 101 of the `facial 
recognition Act of 2022'.''.
    (c) Emergencies and Exceptions.--
            (1) Initial use.--Notwithstanding subsections (a) and (b), 
        an investigative or law enforcement officer may use or request 
        facial recognition in conjunction with a reference photo 
        database--
                    (A) to assist in identifying any person who is 
                deceased, incapacitated or otherwise physically unable 
                of identifying himself, or the victim of a crime, whom 
                the officer determines, in good faith, cannot be 
                identified through other means;
                    (B) to assist in identifying a person whom the 
                officer believes, in good faith, is the subject of an 
                alert through an AMBER Alert communications network, as 
                that term is used in section 301 of the Prosecutorial 
                Remedies and Other Tools to end the Exploitation of 
                Children Today Act of 2003 (34 U.S.C. 20501);
                    (C) to assist in identifying any person who has 
                been lawfully arrested, during the process of booking 
                that person after an arrest or during that person's 
                custodial detention; or
                    (D) to assist in identifying any person--
                            (i) if the appropriate prosecutor 
                        determines that an emergency situation exists--
                                    (I) that involves immediate danger 
                                of death or serious physical injury to 
                                any person; or
                                    (II) that requires the use of 
                                facial recognition in conjunction with 
                                a reference photo database to occur 
                                before an order authorizing such use 
                                can, with due diligence, be obtained; 
                                and
                            (ii) there are grounds upon which an order 
                        could be entered under this section to 
                        authorize such use.
            (2) Subsequent authorization.--If an investigative or law 
        enforcement officer uses facial recognition pursuant to 
        paragraph (1)(D), the prosecutor shall apply for an order 
        approving the use under subsection (b) within 12 hours after 
        the use occurred. The use shall immediately terminate when the 
        application for approval is denied, or in the absence of an 
        application, within 12 hours. In cases where an order is not 
        obtained or denied, the officer shall destroy all information 
        obtained as a result of the search.
            (3) Affidavit required.--With respect to use of facial 
        recognition pursuant to paragraph (1)(D), an appropriate 
        prosecutor shall submit an affidavit to the court identifying 
        specific details on why they believe that an emergency 
        situation under clause (i) exists.
    (d) State Law Preserved.--The authorities provided by subsections 
(b) and (c) do not authorize access reference photo databases 
maintained by a State, or a political subdivision of a State, unless 
State law expressly and unambiguously authorizes an investigative or 
law enforcement officer to--
            (1) access driver's license and identification document 
        photos; and
            (2) use facial recognition to conduct searches of those 
        photos.

SEC. 102. CIVIL RIGHTS AND CIVIL LIBERTIES.

    (a) In General.--An investigative or law enforcement officer may 
not--
            (1) use facial recognition to create a record describing 
        how any individual exercises rights guaranteed by the 
        Constitution, including free assembly, association, and speech;
            (2) rely on actual or perceived race, ethnicity, national 
        origin, religion, disability, gender, gender identity, or 
        sexual orientation in selecting which person to subject to 
        facial recognition, except when there is trustworthy 
        information, relevant to the locality and time frame, in the 
        context of a particular area and for a particular period of 
        time, that links a person with a particular characteristic 
        described in this subsection to an identified criminal incident 
        or scheme; or
            (3) use facial recognition to enforce the immigration laws 
        of the United States or share facial recognition data with 
        other agencies for the purposes of enforcing the immigration 
        laws of the United States.
    (b) Prohibition on Use With Body Cameras.--Any investigative or law 
enforcement officer may not use or request facial recognition in 
conjunction with any image obtained from a body camera worn by that or 
any other officer, dashboard camera, or any aircraft camera, including 
a drone.
    (c) Prohibition on Certain Facial Recognition.--Any investigative 
or law enforcement officer may not use or request facial recognition 
for the purpose of face surveillance.
    (d) Ensuring Corroboration and Preventing Over Reliance on 
Matches.--A facial recognition match may not be the sole basis upon 
which probable cause is established for a search, arrest, or other law 
enforcement action. Any investigative and law enforcement officers 
using information obtained from the use of facial recognition shall 
examine results with care and consider the possibility that matches 
could be inaccurate.
    (e) Prohibition on Illegitimately Obtained Information.--An 
investigative or law enforcement office may not use facial recognition 
in conjunction with a database that contains illegitimately obtained 
information.

SEC. 103. LOGGING OF SEARCHES.

    A law enforcement agency whose investigative or law enforcement 
officers use facial recognition shall log its use of the facial 
recognition to the extent necessary to comply with the public reporting 
and audit requirements of sections 104 and 105 of this Act.

SEC. 104. REPORTING.

    (a) State Reporting Required.--
            (1) State judiciary.--Not later than the last day of the 
        first January after the date of the enactment of this Act, and 
        each January thereafter, each State judge who has issued a 
        court order authorizing or approving facial recognition in 
        conjunction with a reference photo database shall report to a 
        State agency (as determined by the chief executive of the 
        State) the following information:
                    (A) The number of orders or extensions was applied 
                for.
                    (B) Whether the order or extension was issued 
                pursuant to section 101(b) or section 102(c).
                    (C) Whether the order or extension was granted as 
                applied for, was modified, or was denied.
                    (D) The offense specified in the order or 
                application, or extension of an order.
                    (E) The identity of the applying investigative or 
                law enforcement officer and agency making the 
                application and the person authorizing the application.
                    (F) For orders issued pursuant to section 101(c), 
                the reference photo database that was searched.
            (2) Prosecutors.--Not later than the last day of the first 
        January after the date of the enactment of this Act, and each 
        January thereafter, each State prosecutor, or a prosecutor of a 
        political subdivision thereof, who has requested a court order 
        authorizing or approving facial recognition in conjunction with 
        a reference photo database shall report to a State agency (as 
        determined by the chief executive of the State) the following 
        information with respect to the use of facial recognition in 
        conjunction with an reference photo database:
                    (A) The number of such searches run.
                    (B) The offenses that those searches were used to 
                investigate, and for each offense, the number of 
                searches run.
                    (C) The arrests that such searches contributed to, 
                and the offenses for which the arrests were made, 
                disaggregated by race, ethnicity, gender, and age.
                    (D) The number of convictions that such searches 
                contributed to and the offenses for which the 
                convictions were obtained, disaggregated by race, 
                ethnicity, gender, and age.
                    (E) The number of motions to suppress made with 
                respect to those searches, and the number granted or 
                denied.
                    (F) The types and names of databases that were used 
                and the number of photos removed with respect to arrest 
                photo databases that were confirmed to have been 
                removed in accordance with this section.
            (3) Report to bureau of justice assistance.--Not later than 
        90 days after such report is submitted under paragraph (1), and 
        annually thereafter, the State agency shall report the 
        information collected under paragraph (1) to the Director of 
        the Bureau of Justice Assistance.
            (4) Report to administrative office of the united states 
        courts.--Not later than 90 days after such report is submitted 
        under paragraph (2), and annually thereafter, the State agency 
        shall report the information collected under paragraph (2) to 
        the Director of the Administrative Office of the United States 
        Courts.
    (b) Federal Reporting Required.--Not later than the last day of the 
first January after the date of the enactment of this Act, and each 
January thereafter--
            (1) each Federal judge who has issued a court order 
        authorizing or approving facial recognition in conjunction with 
        a reference photo database shall submit to the Director of the 
        Administrative Office of the United States Courts a report 
        including the information under subparagraphs (A) through (F) 
        of subsection (a)(1); and
            (2) and a Federal prosecutor who requested such order, 
        shall submit to the Director of the Administrative Office of 
        the United States Courts a report including the information 
        under subparagraphs (A) through (G) of subsection (a)(2).
    (c) Public Reporting.--In June of each year the Director of the 
Administrative Office of the United States Courts shall release to the 
public, post online, and transmit to the Congress a full and complete 
report concerning the use of facial recognition in conjunction with 
reference photo databases, including the information reported to the 
Director pursuant to subsections (a) and (b).
    (d) Rules.--The Director of the Bureau of Justice Assistance and 
the Director of the Administrative Office of the United States Courts 
shall issue rules with respect to the content and form of the reports 
required to be filed under subsections (a) through (c) of this section 
and sections 105 and 106 of this Act.

SEC. 105. AUDITS.

    (a) Federal Level Audit.--
            (1) In general.--Any Federal law enforcement agency whose 
        investigative or law enforcement officers use facial 
        recognition, regardless of whether they use a system operated 
        by that agency or another agency, shall annually submit data 
        with respect to their use of facial recognition for audit by 
        the Government Accountability Office to prevent and identify 
        misuse and to ensure compliance with sections 101, 102, and 103 
        of this Act, including--
                    (A) a summary of the findings of the audit, 
                including the number and nature of violations 
                identified; and
                    (B) information about the procedures used by the 
                law enforcement agency to remove arrest photos from 
                databases in accordance with this Act.
            (2) Suspension.--
                    (A) In general.--If a violation is uncovered by the 
                audit conducted under paragraph (1), the Federal law 
                enforcement agency shall cease using facial recognition 
                until such time that all violations have been 
                corrected.
                    (B) Public notice.--If use of facial recognition is 
                suspended pursuant to subparagraph (A), the Federal law 
                enforcement agency shall notify the public of such 
                suspension.
    (b) State Level Audit.--
            (1) In general.--Any State or local law enforcement agency 
        whose investigative or law enforcement officers use facial 
        recognition, regardless of whether they use a system operated 
        by that agency or another agency, shall annually submit data 
        with respect to their use of facial recognition to an 
        independent State agency (as determined by the chief executive 
        of the State) to prevent and identify misuse and to ensure 
        compliance with sections 101, 102, and 103 of this Act. Such 
        independent State agency shall report--
                    (A) a summary of the findings of the audit, 
                including the number and nature of violations 
                identified, to Director of the Administrative Office of 
                the United States Courts, and subsequently release that 
                information to the public and post it online;
                    (B) information about the procedures used by the 
                law enforcement agency to remove arrest photos from 
                databases in accordance with this section; and
                    (C) any violations identified by the independent 
                State agency.
            (2) Suspension.--
                    (A) In general.--If a violation is uncovered by the 
                audit conducted under paragraph (1), the State or local 
                law enforcement agency shall cease using facial 
                recognition until such time that all violations have 
                been corrected.
                    (B) Public notice.--If use of facial recognition is 
                suspended pursuant to subparagraph (A), the State or 
                local law enforcement agency shall notify the public of 
                such suspension.
    (c) Disaggregated Data.--Data collected pursuant to subsection (a) 
or (b) shall, when feasible, be collected in a manner that allows such 
data to be disaggregated by race, ethnicity, gender, and age.

SEC. 106. ACCURACY AND BIAS TESTING.

    (a) Benchmark Testing.--No investigative or law enforcement 
officers may use a facial recognition system or information derived 
from it unless that system is annually submitted to the National 
Institute of Standards and Technology's benchmark facial recognition 
test for law enforcement to determine--
            (1) the accuracy of the system; and
            (2) whether the accuracy of the system varies significantly 
        on the basis of race, ethnicity, gender or age.
    (b) Benchmark Testing for New Systems.--No investigative or law 
enforcement officers may begin using a new facial recognition system or 
information derived from it unless that system is first submitted to 
independent testing to determine--
            (1) the accuracy of the system; and
            (2) whether the accuracy of the system varies significantly 
        on the basis of race, ethnicity, gender, or age.
    (c) Prohibition.--Any investigative or law enforcement officer may 
not use facial recognition that has not achieved a sufficiently high 
level of accuracy, including in terms of overall accuracy and variance 
on the basis of race, ethnicity, gender, or age, as determined by the 
National Institute of Standards and Technology, on its annual benchmark 
test for law enforcement use.
    (d) Operational Testing.--No investigative or law enforcement 
agencies may use a facial recognition system or information derived 
from it unless that system is annually submitted to operational testing 
conducted by an independent entity, in accordance with National 
Institute of Standards and Technology's training protocol for 
operational testing, to determine--
            (1) the accuracy of the system;
            (2) the impact of human reviewers on system accuracy; and
            (3) whether the accuracy of the system varies significantly 
        on the basis of race, ethnicity, gender, or age.
    (e) Reporting.--A summary of the findings of the tests required by 
subsection (a) or (d) shall be submitted to the Director of the 
Administrative Office of the United States Courts and posted on the 
internet website of the Administrative Office of the United States 
Courts.
    (f) Rulemaking Required.--The Assistant Attorney General of the 
Department of Justice Civil Rights Division shall issue a rule that 
establishes what is a sufficiently high level of accuracy for a facial 
recognition system used by law enforcement, including in terms of 
overall accuracy and variance on the basis of race, ethnicity, gender, 
and age. The Assistant Attorney General of the Department of Justice 
Civil Rights Division shall consult with outside experts in civil 
rights, civil liberties, racial justice, data privacy, bioethics, law 
enforcement, public defense, and forensic science and other relevant 
areas of expertise in drafting the proposed rule.
    (g) Effective Date.--This section shall take effect 18 months after 
the date of enactment of this Act.

SEC. 107. ENFORCEMENT.

    (a) Suppression.--In the case that the use of facial recognition 
has occurred, no results from the use and no evidence derived therefrom 
may be received in evidence in any trial, hearing, or other proceeding 
in or before any court, grand jury, department, officer, agency, 
regulatory body, legislative committee, or other authority of the 
United States, a State, or a political subdivision thereof if the use 
of facial recognition violated this Act or if the use was conducted in 
an emergency under section 101 and the officer or agency did not 
subsequently obtain an order for that use as required under such 
section.
    (b) Administrative Discipline.--If a court or law enforcement 
agency determines that an investigative or law enforcement officer has 
violated any provision of this Act, and the court or agency finds that 
the circumstances surrounding the violation raise serious questions 
about whether or not the officer acted intentionally with respect to 
the violation, the agency shall promptly initiate a proceeding to 
determine whether disciplinary action against the officer is warranted.
    (c) Civil Action.--
            (1) In general.--Any person who is subject to 
        identification or attempted identification through facial 
        recognition in violation of this Act may bring a civil action 
        in the appropriate court to recover such relief as may be 
        appropriate from the investigative or law enforcement officer 
        or the State or Federal law enforcement agency which engaged in 
        that violation.
            (2) Relief.--In an action under this subsection, 
        appropriate relief includes--
                    (A) such preliminary and other equitable or 
                declaratory relief as may be appropriate;
                    (B) damages under paragraph (3) and punitive 
                damages in appropriate cases; and
                    (C) a reasonable attorney's fee and other 
                litigation costs reasonably incurred.
            (3) Computation of damages.--The court may assess as 
        damages whichever is the greater of--
                    (A) any profits made with respect to the violation 
                suffered by the plaintiff; or
                    (B) $50,000 for each violation.
            (4) Defense.--A good faith reliance on--
                    (A) a court warrant or order, a grand jury 
                subpoena, a legislative authorization, or a statutory 
                authorization; or
                    (B) a good faith determination that section 101 
                permitted the conduct complained of,
        is a complete defense against any civil action brought under 
        this Act.
            (5) Limitation.--A civil action under this section may not 
        be commenced later than two years after the date upon which the 
        claimant first has a reasonable opportunity to discover the 
        violation.
    (d) Civil Action for Disparate Impact.--An individual may bring a 
civil action when use of facial recognition or face surveillance by a 
law enforcement agency, or any technological element, criteria, method, 
or design feature thereof acting individually or in concert, results in 
disparate treatment or adverse impact against an individual or class of 
individuals on the basis of race, ethnicity, gender, or age.

SEC. 108. NOTICE REQUIREMENT.

    (a) Notice Requirement.--A law enforcement agency that uses facial 
recognition to attempt to identify an individual who is arrested shall, 
at minimum, provide to the individual--
            (1) a notice of--
                    (A) the name the law enforcement agency that 
                operated the facial recognition system used; and
                    (B) the name of the database, if any, that was used 
                to identify the individual; and
            (2) a copy of--
                    (A) the order that authorized the use of facial 
                recognition;
                    (B) accuracy or bias reports required under this 
                Act;
                    (C) each probe image that was used by the agency;
                    (D) any modifications made to the probe image;
                    (E) the candidate list, in rank order, produced by 
                the facial recognition system; and
                    (F) any other police documentation related to the 
                use of facial recognition in the law enforcement 
                investigation.
    (b) Language Requirement.--The information required under 
subsection (a) shall be provided to such individual in an appropriate 
language for such individual if the individual is not fluent or 
literate in English.

 TITLE II--CERTAIN REQUIREMENTS AND LIMITATIONS ON FACIAL RECOGNITION 
                          SYSTEMS AND RESEARCH

SEC. 201. NATIONAL INSTITUTE FOR STANDARDS AND TECHNOLOGY ASSISTANCE.

    (a) In General.--The National Institute of Standards and Technology 
(hereinafter in this section referred to as ``NIST'') shall--
            (1) develop best practices for law enforcement agencies to 
        evaluate the accuracy and fairness of their facial recognition 
        systems;
            (2) develop and offer an ongoing benchmark facial 
        recognition test for law enforcement that--
                    (A) conducts evaluations of actual algorithms used 
                by law enforcement agencies;
                    (B) uses the types of probe images, including in 
                terms of quality, actually used by law enforcement 
                agencies in its testing;
                    (C) evaluates algorithms on larger databases that 
                reflect the size of databases actually used by law 
                enforcement; and
                    (D) evaluates whether the accuracy of a facial 
                recognition algorithm varies on the basis of race, 
                ethnicity, gender, or age and assessments of bias in 
                facial recognition systems;
            (3) develop an operational testing protocol that 
        independent testers and law enforcement agencies may implement 
        for annual operational testing to determine--
                    (A) the accuracy of the facial recognition system;
                    (B) the impact of human reviewers on facial 
                recognition system accuracy; and
                    (C) whether the accuracy of the facial recognition 
                system varies significantly on the basis of race, 
                ethnicity, gender, or age; and
            (4) study and develop training standards for human 
        operators reviewing the results of facial recognition searches 
        to ensure accuracy and prevent bias.
    (b) Authorization of Appropriations.--There is authorized to be 
appropriated to the National Institute of Standards and Technology to 
carry out subsection (a) $5,000,000 for each of the fiscal years 2023 
through 2026.

SEC. 202. RULE OF CONSTRUCTION WITH RESPECT TO STATE AND LOCAL PRIVACY 
              PROTECTIONS.

    (a) Rule of Construction.--Nothing in this Act shall be construed 
to preempt concurrent or more stringent limitations on the use of 
facial recognition, or any other privacy, civil rights, and civil 
liberties laws and rules, by the Federal Government, a State, or a 
political subdivision of a State.
    (b) Use of Facial Recognition.--Nothing in this Act shall be 
construed to authorize the use of facial recognition by a State, or a 
political subdivision of a State, unless the laws of that State or 
political subdivision expressly and unambiguously authorizes such use.

SEC. 203. POLICY ON USE OF FACIAL RECOGNITION SYSTEMS REQUIRED.

    Not later than 90 days after the date of the enactment of this Act, 
each agency covered by this statute shall establish and make publicly 
available on the internet website of such agency a policy governing the 
agency's use of facial recognition systems to ensure investigative or 
law enforcement officer compliance with the requirements of this Act.

SEC. 204. LIMITATION ON LIABILITY.

    A State shall not be immune under the eleventh amendment to the 
Constitution of the United States from an action in Federal or State 
court of competent jurisdiction for a violation of this Act. In any 
action against a State for a violation of the requirements of this Act, 
remedies (including remedies both at law and in equity) are available 
for such a violation to the same extent as such remedies are available 
for such a violation in an action against any public or private entity 
other than a State.
                                 <all>