Facial Recognition and Biometric Technology Moratorium Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 3907 To prohibit biometric surveillance by the Federal Government without explicit statutory authorization and to withhold certain Federal public safety grants from State and local governments that engage in biometric surveil- lance. IN THE HOUSE OF REPRESENTATIVES JUNE 15, 2021 Ms. JAYAPAL (for herself, Ms. PRESSLEY, Ms. TLAIB, Ms. ESHOO, Mr. ESPAILLAT, Ms. NORTON, Ms. OMAR, and Mr. RUSH) introduced the fol- lowing bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Oversight and Reform, for a period to be subsequently determined by the Speaker, in each case for consider- ation of such provisions as fall within the jurisdiction of the committee concerned A BILL To prohibit biometric surveillance by the Federal Government without explicit statutory authorization and to withhold certain Federal public safety grants from State and local governments that engage in biometric surveillance. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Facial Recognition and 4 Biometric Technology Moratorium Act of 2021’’. 5 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3907 IH SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) BIOMETRIC SURVEILLANCE SYSTEM.—The 3 term ‘‘biometric surveillance system’’ means any 4 computer software that performs facial recognition 5 or other remote biometric recognition in real time or 6 on a recording or photograph. 7 (2) BYRNE GRANT PROGRAM.—The term 8 ‘‘Byrne grant program’’ means the grant program 9 authorized under subpart 1 of part E of title I of 10 the Omnibus Crime Control and Safe Streets Act of 11 1968 (34 U.S.C. 10151 et seq.), whether character- 12 ized as the Edward Byrne Memorial State and Local 13 Law Enforcement Assistance Programs, the Local 14 Government Law Enforcement Block Grants Pro- 15 gram, the Edward Byrne Memorial Justice Assist- 16 ance Grant Program, or otherwise. 17 (3) FACIAL RECOGNITION.—The term ‘‘facial 18 recognition’’ means an automated or semi-automated 19 process that— 20 (A) assists in identifying an individual, 21 capturing information about an individual, or 22 otherwise generating or assisting in generating 23 surveillance information about an individual 24 based on the physical characteristics of the indi- 25 vidual’s face; or 26 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3907 IH (B) logs characteristics of an individual’s 1 face, head, or body to infer emotion, associa- 2 tions, activities, or the location of an individual. 3 (4) FEDERAL OFFICIAL.—The term ‘‘Federal 4 official’’ means any officer, employee, agent, con- 5 tractor, or subcontractor of the Federal Government. 6 (5) IN THE UNITED STATES.—The term ‘‘in the 7 United States’’ means all areas within the external 8 boundary of the United States, its territories and 9 possessions, including airports, ports of entry, and 10 border zones. 11 (6) OTHER REMOTE BIOMETRIC RECOGNI- 12 TION.—The term ‘‘other remote biometric recogni- 13 tion’’— 14 (A) means an automated or semi-auto- 15 mated process that— 16 (i) assists in identifying an individual, 17 capturing information about an individual, 18 or otherwise generating or assisting in gen- 19 erating surveillance information about an 20 individual based on the characteristics of 21 the individual’s gait or other immutable 22 characteristic ascertained from a distance; 23 (ii) uses voice recognition technology; 24 or 25 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3907 IH (iii) logs such characteristics to infer 1 emotion, associations, activities, or the lo- 2 cation of an individual; and 3 (B) does not include identification based 4 on fingerprints or palm prints. 5 (7) VOICE RECOGNITION TECHNOLOGY.—The 6 term ‘‘voice recognition technology’’ means the auto- 7 mated or semi-automated process that assists in 8 identifying or verifying an individual based on the 9 characteristics of an individual’s voice. 10 SEC. 3. PROHIBITION ON FEDERAL GOVERNMENT USE OF 11 BIOMETRIC SURVEILLANCE. 12 (a) IN GENERAL.—Except as provided in subsection 13 (b), it shall be unlawful for any Federal agency or Federal 14 official, in an official capacity, to acquire, possess, access, 15 or use in the United States— 16 (1) any biometric surveillance system; or 17 (2) information derived from a biometric sur- 18 veillance system operated by another entity. 19 (b) EXCEPTION.—The prohibition set forth in sub- 20 section (a) does not apply to activities explicitly authorized 21 by an Act of Congress that describes, with particularity— 22 (1) the entities permitted to use the biometric 23 surveillance system, the specific type of biometric 24 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3907 IH authorized, the purposes for such use, and any pro- 1 hibited uses; 2 (2) standards for use and management of infor- 3 mation derived from the biometric surveillance sys- 4 tem, including data retention, sharing, access, and 5 audit trails; 6 (3) auditing requirements to ensure the accu- 7 racy of biometric surveillance system technologies, 8 standards for minimum accuracy rates, and accuracy 9 rates by gender, skin color, and age; 10 (4) rigorous protections for due process, pri- 11 vacy, free speech and association, and racial, gender, 12 and religious equity; and 13 (5) mechanisms to ensure compliance with the 14 provisions of the Act. 15 (c) JUDICIAL INVESTIGATIONS AND PROCEEDINGS.— 16 (1) ADMISSIBILITY.—Except in a judicial inves- 17 tigation or proceeding alleging a violation of this sec- 18 tion, information obtained in violation of this section 19 is not admissible by the Federal Government in any 20 criminal, civil, administrative, or other investigation 21 or proceeding. 22 (2) CAUSE OF ACTION.— 23 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3907 IH (A) IN GENERAL.—A violation of this sec- 1 tion constitutes an injury to any individual ag- 2 grieved by a violation of this Act. 3 (B) RIGHT TO SUE.—An individual de- 4 scribed in subparagraph (A) may institute pro- 5 ceedings against the Federal Government whose 6 official is alleged to have violated this section 7 for the relief described in subparagraph (D) in 8 any court of competent jurisdiction. 9 (C) ENFORCEMENT BY STATE ATTORNEYS 10 GENERAL.—The chief law enforcement officer 11 of a State, or any other State officer authorized 12 by law to bring actions on behalf of the resi- 13 dents of a State, may bring a civil action, as 14 parens patriae, on behalf of the residents of 15 that State in an appropriate district court of 16 the United States to enforce this Act, whenever 17 the chief law enforcement officer or other State 18 officer has reason to believe that the interests 19 of the residents of the State have been or are 20 being threatened or adversely affected by a vio- 21 lation of this Act. 22 (D) RELIEF.—In a civil action brought 23 under subparagraph (B) in which the plaintiff 24 prevails, the court may award— 25 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3907 IH (i) actual damages; 1 (ii) punitive damages; 2 (iii) reasonable attorneys’ fees and 3 costs; and 4 (iv) any other relief, including injunc- 5 tive relief, that the court determines to be 6 appropriate. 7 (d) CIVIL PENALTIES.—Any Federal official who is 8 found to have violated this section may be subject to re- 9 training, suspension, termination, or any other penalty, as 10 determined in an appropriate tribunal, subject to applica- 11 ble due process requirements. 12 (e) FEDERAL FUNDING.— 13 (1) IN GENERAL.—No Federal funds may be 14 obligated or expended by a Federal law enforcement 15 agency for the purchase or use of a biometric sur- 16 veillance system. 17 (2) UNALLOCATED FUNDS.—No Federal agency 18 may use any unallocated funds appropriated to the 19 agency for the purchase or use of a biometric sur- 20 veillance system. 21 (f) RULES OF CONSTRUCTION.—Nothing in this sec- 22 tion may be construed— 23 (1) to prohibit the National Institute of Stand- 24 ards and Technology (NIST) from testing or re- 25 VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3907 IH searching biometric surveillance systems or other re- 1 mote biometric recognition technologies in commer- 2 cial use; or 3 (2) to preempt or supersede any Federal, State, 4 or local law that imposes a more stringent limitation 5 than the limitations described in this section. 6 SEC. 4. MORATORIUM ON STATE AND LOCAL GOVERNMENT 7 USE OF BIOMETRIC SURVEILLANCE SYSTEMS. 8 (a) FEDERAL FINANCIAL ASSISTANCE.—Beginning 9 on the first day of the first fiscal year beginning after the 10 date of the enactment of this Act, a State or unit of local 11 government is ineligible to receive Federal financial assist- 12 ance under the Byrne grant program unless the State or 13 unit of local government is complying with a law or policy 14 that is substantially similar to the prohibition set forth 15 in section 3(a). 16 (b) RULE OF CONSTRUCTION.—Nothing in this sec- 17 tion may be construed to preempt or supersede any Fed- 18 eral, State, or local law that imposes a more stringent lim- 19 itation than the prohibition set forth in section 3(a). 20 Æ VerDate Sep 11 2014 00:50 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\H3907.IH H3907 kjohnson on DSK79L0C42PROD with BILLS