Justice in Forensic Algorithms Act of 2019

I 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 Com- mittee 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, pro- vide for the establishment of Computational Forensic Algorithm Standards, and for other purposes. 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 ‘‘Justice in Forensic 4 Algorithms Act of 2019’’. 5 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 2 •HR 4368 IH SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM STAND- 1 ARDS. 2 (a) IN GENERAL.—Not later than 1 year after the 3 date of enactment of this Act, the Director of the National 4 Institute of Standards and Technology shall establish a 5 program to provide for creation and maintenance of stand- 6 ards for the development and use of computational foren- 7 sic software, to be known as the Computational Forensic 8 Algorithm Standards, consistent with the following: 9 (1) Standards shall include an assessment for 10 the potential for disparate impact, on the basis of 11 race, ethnicity, socioeconomic status, gender, and 12 other demographic features, in the development and 13 use of the computational forensic software. 14 (2) Standards shall address— 15 (A)(i) the underlying scientific principles 16 and methods implemented in computational fo- 17 rensic software; and 18 (ii) if, in the case of a particular method, 19 there are insufficient studies supporting its use, 20 what studies the Director has conducted to do 21 so, and the results of such studies; 22 (B) requirements for testing the software 23 including the conditions under which it needs to 24 be tested, types of testing data to be used, test- 25 ing environments, testing methodologies, and 26 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 3 •HR 4368 IH system performance statistics required to be re- 1 ported including— 2 (i) accuracy, including false positive 3 and false negative error rates; 4 (ii) precision; 5 (iii) reproducibility; 6 (iv) robustness; and 7 (v) sensitivity; 8 (C) requirements for publicly available doc- 9 umentation by developers of computational fo- 10 rensic software of the purpose and function of 11 the software, the development process, including 12 source and description of training data, and in- 13 ternal testing methodology and results, includ- 14 ing source and description of testing data; 15 (D) requirements for laboratories and any 16 other entities using computational forensic soft- 17 ware to validate it for use, including to specify 18 the conditions under which the lab has vali- 19 dated it for their use, requirements for what in- 20 formation needs to be included in a public re- 21 port on the lab or other entity’s validation, and 22 requirements for internal validation updates 23 when there are material changes to the soft- 24 ware; and 25 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 4 •HR 4368 IH (E) requirements for reports provided to 1 defendants by prosecution produced docu- 2 menting the use and results of computational 3 forensic software in individual cases. 4 (3) Standards shall be issued as a rulemaking 5 under section 553 of title 5, United States Code. 6 (4) The Director shall consult with outside ex- 7 perts in forensic science, bioethics, algorithmic dis- 8 crimination, data privacy, racial justice, criminal jus- 9 tice reform, exonerations, and other relevant areas 10 of expertise identified through public input. 11 (b) PROTECTION OF TRADE SECRETS.—The Federal 12 Rules of Evidence are amended by adding at the end of 13 article V the following: 14 ‘‘Rule 503. PROTECTION OF TRADE SECRETS IN A CRIMINAL 15 PROCEEDING. 16 ‘‘In any criminal case, trade secrets protections do 17 not apply when defendants would otherwise be entitled to 18 obtain evidence.’’. 19 (c) REQUIREMENTS FOR FEDERAL USE OF FOREN- 20 SIC ALGORITHMS.—Any Federal law enforcement agency 21 or crime laboratory providing services to a Federal agency 22 using computational forensic software may use only soft- 23 ware that has been tested under the National Institute of 24 Standards and Technology’s Computational Forensic Al- 25 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 5 •HR 4368 IH gorithm Testing Program and shall conduct an internal 1 validation according to the requirements outlined in the 2 Computational Forensic Algorithm Standards and make 3 the results publicly available. The internal validation shall 4 be updated when there is a material change in the soft- 5 ware that triggers a retesting by the Computational Fo- 6 rensic Algorithm Testing Program. 7 (d) REQUIREMENTS FOR TESTING.—The Director of 8 the National Institute of Standards and Technology shall 9 establish a Computational Forensic Algorithm Testing 10 Program, whose activities include the following: 11 (1) Testing individual software programs using 12 the testing requirements established in the Computa- 13 tional Forensic Algorithm Standards. 14 (2) Using realistic sample testing data similar 15 to what would be used by law enforcement in crimi- 16 nal investigations in performing such testing, includ- 17 ing incomplete and contaminated samples. 18 (3) Using testing data that represents diversity 19 of racial, ethnic, and gender identities and intersec- 20 tions of these identities in performing such testing. 21 (4) Using testing data that tests the limits of 22 the software and demonstrates the boundaries of re- 23 liability described in the performance measures de- 24 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 6 •HR 4368 IH fined in the Computational Forensic Algorithm 1 Standards in performing such testing. 2 (5) Publishing the results of testing the soft- 3 ware online including results under conditions speci- 4 fied in the standards and across diversity of racial, 5 ethnic, and gender identities and intersections of 6 these identities in a publicly available format. 7 (e) TESTING FREQUENCY.—Retesting shall be con- 8 ducted when a material change is made to the software 9 that impacts its performance and may affect its outputs. 10 The Director shall establish requirements for determining 11 whether changes are material or nonmaterial. 12 (f) DISCOVERY IN CRIMINAL CASES.—Rule 16 of the 13 Federal Rules of Criminal Procedure is amended— 14 (1) in subdivision (a)(1), by adding at the end 15 the following: 16 ‘‘(H) Use of Computational Forensic Soft- 17 ware. Any results or reports resulting from 18 analysis by computational forensic software 19 shall be provided to the defendant, and the de- 20 fendant shall be accorded access to an execut- 21 able copy of the version of the computational 22 forensic software, as well as earlier versions of 23 the software, necessary instructions for use and 24 interpretation of the results, and relevant files 25 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 7 •HR 4368 IH and data, used for analysis in the case and suit- 1 able for testing purposes. Such a report on the 2 results shall include— 3 ‘‘(i) the name of the company that de- 4 veloped the software; 5 ‘‘(ii) the name of the lab where test 6 was run; 7 ‘‘(iii) the version of the software that 8 was used; 9 ‘‘(iv) the dates of the most recent 10 changes to the software and record of 11 changes made, including any bugs found in 12 the software and what was done to address 13 those bugs; 14 ‘‘(v) documentation of procedures fol- 15 lowed based on procedures outlined in in- 16 ternal validation; 17 ‘‘(vi) documentation of conditions 18 under which software was used relative to 19 the conditions under which software was 20 tested; and 21 ‘‘(vii) any other information specified 22 by the Director of the National Institute of 23 Standards and Technology in the Com- 24 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 8 •HR 4368 IH putational Forensic Algorithm Stand- 1 ards.’’. 2 (g) INADMISSIBILITY OF CERTAIN EVIDENCE.—The 3 Federal Rules of Evidence are amended by adding at the 4 end of article I the following: 5 ‘‘Rule 107. INADMISSIBILITY OF CERTAIN EVIDENCE THAT 6 IS THE RESULT OF ANALYSIS BY COMPUTA- 7 TIONAL FORENSIC SOFTWARE. 8 ‘‘In any criminal case, evidence that is the result of 9 analysis by computational forensic software is admissible 10 only if— 11 ‘‘(1) the computational forensic software used 12 has been submitted to the Computational Forensic 13 Algorithm Testing Program of the Director of the 14 National Institute of Standards and Technology and 15 there have been no material changes to that software 16 since it was last tested; and 17 ‘‘(2) the developers and users of the computa- 18 tional forensic software agree to waive any and all 19 legal claims against the defense or any member of 20 its team for the purposes of the defense analyzing or 21 testing the computational forensic software.’’. 22 (h) DEFINITIONS.—In this Act: 23 (1) COMPUTATIONAL FORENSIC SOFTWARE.— 24 The term ‘‘computational forensic software’’ means 25 VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS 9 •HR 4368 IH software that relies on an automated or semiauto- 1 mated computational process, including one derived 2 from machine learning, statistics, or other data proc- 3 essing or artificial intelligence techniques, to process, 4 analyze, or interpret evidence. 5 (2) MATERIAL CHANGE.—The term ‘‘material 6 change’’ means an update to computational forensic 7 software that may affect the performance measures 8 defined in the Computational Forensic Algorithm 9 Standards or the use or output of the software. 10 (3) NONMATERIAL CHANGE.—The term ‘‘non- 11 material change’’ means an update to computational 12 forensic software that does not affect the perform- 13 ance measures, use, or output of the software. 14 Æ VerDate Sep 11 2014 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H4368.IH H4368 kjohnson on DSK79L0C42 with BILLS