Facial Recognition Technology Warrant Act of 2019

II 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 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 4 Technology Warrant Act of 2019’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) AGENCY.—The term ‘‘agency’’ has the 8 meaning given the term in section 551 of title 5, 9 United States Code. 10 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 2 •S 2878 IS (2) COVERED COURT ORDER.—The term ‘‘cov- 1 ered court order’’ means a court order obtained in 2 accordance with rule 41 of the Federal Rules of 3 Criminal Procedure and in connection with the in- 4 vestigation of an offense for which an order could be 5 sought under section 2516 of title 18, United States 6 Code. 7 (3) FACIAL RECOGNITION TECHNOLOGY.—The 8 term ‘‘facial recognition technology’’ means tech- 9 nology that analyzes facial features and is used for 10 the unique personal identification of individuals in 11 still or video images. 12 (4) ONGOING SURVEILLANCE.—The term ‘‘on- 13 going surveillance’’— 14 (A) means the utilization of facial recogni- 15 tion technology to engage in a sustained effort 16 to track the physical movements of an identified 17 individual through 1 or more public places 18 where such movements occur over a period of 19 time greater than 72 hours, whether in real 20 time or through application of such technology 21 to historical records; and 22 (B) does not include instances where facial 23 recognition technology is utilized for a single 24 identification or attempted identification of an 25 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 3 •S 2878 IS individual, if no subsequent attempt is made to 1 track that individual’s movement in real time or 2 through the use of historical records after the 3 individual has been identified. 4 SEC. 3. LIMITATION ON USE OF FACIAL RECOGNITION 5 TECHNOLOGY. 6 (a) IN GENERAL.—Subject to subsection (b), an offi- 7 cer or employee of an agency may not use facial recogni- 8 tion technology to engage in ongoing surveillance of an 9 individual or group of individuals in a public space, un- 10 less— 11 (1) the use of the facial recognition technology 12 is in support of a law enforcement activity; and 13 (2)(A) a covered court order has been obtained 14 to allow the use of facial recognition technology for 15 ongoing surveillance of the individual or group of in- 16 dividuals; or 17 (B) an investigative or law enforcement offi- 18 cer— 19 (i) reasonably determines that exigent cir- 20 cumstances and compelling law enforcement 21 needs make it impractical to obtain a covered 22 court order; 23 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 4 •S 2878 IS (ii) reasonably determines that there are 1 grounds for which a covered court order could 2 be obtained under subparagraph (A); and 3 (iii) causes an application for a covered 4 court order to be made in accordance with sub- 5 paragraph (A) not later than 48 hours after the 6 use of facial recognition technology to engage in 7 ongoing surveillance. 8 (b) REQUIREMENT.—If an application for a covered 9 court order made under subsection (a)(2)(B) is denied, the 10 use of facial recognition technology shall terminate at the 11 time of the denial. 12 (c) DURATION OF ORDERS.— 13 (1) IN GENERAL.—Subject to paragraph (2), a 14 covered court order may only authorize ongoing sur- 15 veillance until the date on which the objective of the 16 order is satisfied, except that such order may not 17 authorize ongoing surveillance for a period of longer 18 than 30 days. 19 (2) REQUIREMENT.—The 30-day period de- 20 scribed in paragraph (1) shall begin on the earlier 21 of— 22 (A) the date on which the agency begins to 23 use facial recognition technology; or 24 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 5 •S 2878 IS (B) the date that is 10 days after the 1 court order is issued. 2 (3) EXTENSION.—A court may grant an exten- 3 sion of the 30-day period described in paragraph (1) 4 if the extension satisfies the requirements of sub- 5 section (a)(2)(A) and such extension may last not 6 longer than 30 days. 7 (d) MINIMIZATION REQUIREMENT.—Any use of fa- 8 cial recognition technology pursuant to a covered court 9 order shall be conducted in such a way as to minimize 10 the acquisition, retention, and dissemination of informa- 11 tion about the individuals other than those for whom there 12 was probable cause to seek the covered court order ob- 13 tained under subsection (a)(2)(A). 14 (e) MOTION TO SUPPRESS.— 15 (1) IN GENERAL.—Except as provided in para- 16 graph (2), any aggrieved individual who has been 17 the subject of ongoing surveillance using facial rec- 18 ognition technology, in any trial, hearing, or pro- 19 ceeding in or before any court, department, officer, 20 agency, regulatory body, or other authority of the 21 United States, a State, or a political subdivision 22 thereof, may move to suppress information directly 23 obtained through the use of facial recognition tech- 24 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 6 •S 2878 IS nology, or evidence derived therefrom, in violation of 1 this section, on the grounds that— 2 (A) the information was unlawfully ob- 3 tained; 4 (B) the order of authorization or approval 5 under which the information was obtained is in- 6 sufficient on its face; or 7 (C) the use of facial recognition technology 8 was not used in conformity with the order of 9 authorization or approval. 10 (2) EXCEPTION.—Evidence obtained through 11 the use of facial recognition technology in violation 12 of this section shall not be suppressed under para- 13 graph (1) if the evidence was acquired by an officer 14 or an employee of an agency with an objectively rea- 15 sonable belief that the use of facial recognition tech- 16 nology was in compliance with this section. 17 (3) REQUIREMENT.—A motion described in 18 paragraph (1) shall be made before the trial, hear- 19 ing, or proceeding unless there was no opportunity 20 to make such motion or the individual was not aware 21 of the grounds of the motion. If the motion is grant- 22 ed, the information directly obtained through the use 23 of facial recognition technology, or evidence derived 24 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 7 •S 2878 IS therefrom, shall be treated as having been obtained 1 in violation of this section. 2 (4) INSPECTION OF INFORMATION.—The judge, 3 upon the filing of a motion under this subsection by 4 the aggrieved individual, may in his or her discretion 5 make available to the aggrieved individual or counsel 6 of the aggrieved individual for inspection such por- 7 tions of the information or evidence derived there- 8 from as the judge determines to be in the interests 9 of justice. 10 (5) APPEAL.—In addition to any other right to 11 appeal, the United States shall have the right to ap- 12 peal from an order granting a motion to suppress 13 made under this subsection, or the denial of an ap- 14 plication for an order of approval, if the United 15 States attorney shall certify to the judge or other of- 16 ficial granting such motion or denying such applica- 17 tion that the appeal is not taken for purposes of 18 delay. Such appeal shall be taken within 30 days 19 after the date the order was entered and shall be 20 diligently prosecuted. 21 (6) LIMITATION.—The remedies and sanctions 22 described in this subsection with respect to the use 23 of facial recognition technology are the only judicial 24 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 8 •S 2878 IS remedies and sanctions for nonconstitutional viola- 1 tions of this section involving such technology. 2 (f) FOREIGN INTELLIGENCE INFORMATION.—Noth- 3 ing in this section shall be construed to affect the use of 4 facial recognition technology to engage in ongoing surveil- 5 lance connected with the acquisition of foreign intelligence 6 information, as defined in section 101(e) of the Foreign 7 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)). 8 SEC. 4. REPORTS ON GOVERNMENT USE OF FACIAL REC- 9 OGNITION TECHNOLOGY. 10 (a) REPORT BY JUDGE.—Not later than 30 days 11 after issuance of a covered court order under section 12 3(a)(2)(A) or an extension thereof under section 3(c)(3), 13 or the denial of such a warrant or extension, the issuing 14 or denying judge shall report to the Administrative Office 15 of the United States Courts— 16 (1) the fact that a warrant or extension was ap- 17 plied for; 18 (2) the fact that the warrant or extension was 19 granted as applied for, was modified, or was denied; 20 (3) the period of time for which the warrant ap- 21 proves the use of facial recognition technology, and 22 the number and duration of any extensions; and 23 (4) the offense specified in the warrant or ap- 24 plication. 25 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 9 •S 2878 IS (b) REPORTS.—Beginning 1 year after the date of 1 enactment of this Act, and not later than September 30 2 of each year thereafter, the Director of the Administrative 3 Office of the United States Courts shall transmit to the 4 Committee on the Judiciary of the Senate and the Com- 5 mittee on the Judiciary of the House of Representatives, 6 and make available to the public, a full and complete re- 7 port summarizing the data required to be filed with the 8 Administrative Office under subsection (a), including— 9 (1) the number of applications for covered court 10 orders and extensions authorizing delayed notice; 11 (2) the number of covered court orders and ex- 12 tensions granted or denied during the preceding fis- 13 cal year; 14 (3) for each covered court order or extension 15 granted— 16 (A) the period of time for which the war- 17 rant approves the use of facial recognition tech- 18 nology, and the number and duration of any ex- 19 tensions; 20 (B) the offense specified in the covered 21 court order or application, or extension of an 22 order; 23 (C) the identity of the applying investiga- 24 tive or law enforcement officer and agency mak- 25 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 10 •S 2878 IS ing the application and the person authorizing 1 the application; and 2 (D) the nature of the facilities or cameras 3 from which the data analyzed by facial recogni- 4 tion technology came from; 5 (4) a general description of the identifications 6 made under a covered court order or extension, in- 7 cluding— 8 (A) the approximate nature and frequency 9 of use of the facial recognition technology; 10 (B) the approximate number of persons 11 who were subjected to analysis using the facial 12 recognition technology; and 13 (C) the approximate nature, amount, and 14 cost of the manpower and other resources dur- 15 ing the use of the facial recognition technology; 16 and 17 (5) the number of misidentifications, including 18 any arrest of an individual that does not result in 19 charges being entered against the individual, made 20 based upon information directly obtained through 21 the use of facial recognition technology, or evidence 22 derived therefrom. 23 (c) REGULATIONS.—The Director of the Administra- 24 tive Office of the United States Courts, in consultation 25 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 11 •S 2878 IS with the Attorney General, may issue guidance regarding 1 the content and form of the reports required to be filed 2 under subsection (a). 3 SEC. 5. HUMAN REVIEW AND TESTING. 4 (a) HUMAN REVIEW OF FACIAL RECOGNITION TECH- 5 NOLOGY.—An agency shall require a trained officer to ex- 6 amine the output or recommendation of any facial recogni- 7 tion system before the agency investigates or otherwise 8 interacts with an individual identified by the system in 9 connection with a covered court order issued under section 10 3(a)(2)(A) or in connection with an emergency under sec- 11 tion 3(a)(2)(B). 12 (b) TESTING.—The head of each agency, in consulta- 13 tion with the Director of the National Institute of Stand- 14 ards and Technology, shall establish testing procedures re- 15 garding all facial recognition technology systems used by 16 the agency, including a process to— 17 (1) periodically undertake independent tests of 18 the performance of the system in typical operational 19 conditions; 20 (2) identify relative performance across dif- 21 ferent subpopulations, including error rates when 22 the system is tested across subpopulations, alone 23 and in combination with, different skin tones, ages, 24 and genders; and 25 VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS 12 •S 2878 IS (3) review such tests and take action to improve 1 the accuracy of the system across subpopulations 2 upon a finding indicating there are disparate error 3 rates when the system is tested across subpopula- 4 tions. 5 Æ VerDate Sep 11 2014 03:39 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S2878.IS S2878 kjohnson on DSK79L0C42 with BILLS