Ethical Use of Facial Recognition Act

II 116TH CONGRESS 2D SESSION S. 3284 To create a moratorium on the government use of facial recognition tech- nology until a Commission recommends the appropriate guidelines and limitation for use of facial recognition technology. IN THE SENATE OF THE UNITED STATES FEBRUARY 12, 2020 Mr. MERKLEY (for himself and Mr. BOOKER) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL To create a moratorium on the government use of facial recognition technology until a Commission recommends the appropriate guidelines and limitation for use of facial recognition technology. 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 ‘‘Ethical Use of Facial 4 Recognition Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 2 •S 3284 IS (1) Facial recognition is a technology that is in- 1 creasingly being used and marketed to law enforce- 2 ment agencies across the United States without ap- 3 propriate debate or consideration of its impacts. 4 (2) Facial recognition has been shown to dis- 5 proportionately impact communities of color, activ- 6 ists, immigrants, and other groups that are often al- 7 ready unjustly targeted. 8 (3) Facial recognition has a history of being in- 9 accurate, particularly for women, young people, Afri- 10 can Americans, and other ethnic groups. 11 (4) There is evidence that facial recognition has 12 been used at protests and rallies, which could chill 13 speech. 14 (5) It is critical that facial recognition not be 15 used to suppress First Amendment related activities, 16 violate privacy, or otherwise adversely impact indi- 17 viduals’ civil rights and civil liberties. 18 SEC. 3. DEFINITIONS. 19 In this Act: 20 (1) COMMISSION.—The term ‘‘Commission’’ 21 means the congressional commission established 22 under section 6. 23 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 3 •S 3284 IS (2) COVERED GOVERNMENT OFFICIAL.—The 1 term ‘‘covered government official’’ means any offi- 2 cer, employee, or contractor of a Federal agency. 3 (3) FACIAL RECOGNITION TECHNOLOGY.—The 4 term ‘‘facial recognition technology’’ means the 5 automated or semi-automated process that assists in 6 identifying or verifying an individual based on the 7 characteristics of an individual’s face. 8 (4) FEDERAL AGENCY.—The term ‘‘Federal 9 agency’’ has the meaning given the term ‘‘agency’’ 10 in section 551 of title 5, United States Code. 11 (5) IMPLEMENTATION BILL.—The term ‘‘imple- 12 mentation bill’’ means a bill— 13 (A) consisting of the legislative language 14 prepared under section 6(e)(1)(A); and 15 (B) introduced under section 6(e)(1)(B). 16 SEC. 4. LIMITS ON USE OF FACIAL RECOGNITION TECH- 17 NOLOGY. 18 A covered government official may not set up any 19 camera to be used in connection with facial recognition 20 technology, access or use information obtained from facial 21 recognition technology, or import facial recognition tech- 22 nology to identify an individual in the United States with- 23 out a warrant until the date on which Congress enacts 24 legislation implementing the guidelines for use of facial 25 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 4 •S 3284 IS recognition technology established by the Commission 1 under section 6. 2 SEC. 5. ENFORCEMENT. 3 (a) CIVIL ACTION.—Any person aggrieved by a viola- 4 tion of section 4 by a covered government official may 5 bring a civil action for injunctive or declaratory relief in 6 the appropriate district court of the United States. 7 (b) LIMITATION ON FEDERAL GRANTS.—Notwith- 8 standing any other provision of law, no Federal funds may 9 be used by a State or unit of local government to invest 10 in facial recognition software, purchase facial recognition 11 technology services, or acquire images for use in facial rec- 12 ognition technology systems. 13 SEC. 6. COMMISSION. 14 (a) IN GENERAL.—There is established a congres- 15 sional commission to consider and create guidelines for the 16 use of facial recognition technology in the United States. 17 (b) MEMBERSHIP.— 18 (1) IN GENERAL.—The Commission shall be 19 composed of 13 members, of whom— 20 (A) 1 member shall be appointed by the 21 President, and such member shall serve as the 22 Chairperson of the Commission; 23 (B) 3 members shall be appointed by the 24 majority leader of the Senate; 25 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 5 •S 3284 IS (C) 3 members shall be appointed by the 1 minority leader of the Senate; 2 (D) 3 members shall be appointed by the 3 Speaker of the House of Representatives; and 4 (E) 3 members shall be appointed by the 5 minority leader of the House of Representa- 6 tives. 7 (2) EXPERTISE OF MEMBERS.— 8 (A) IN GENERAL.—Members appointed 9 under paragraph (1) shall represent each of the 10 following groups: 11 (i) Law enforcement and immigration 12 enforcement officials. 13 (ii) Privacy and technology experts. 14 (iii) Communities most impacted neg- 15 atively by the use of facial recognition 16 technology. 17 (B) REQUIREMENT.—Not fewer than 7 18 members of the Commission shall be represent- 19 atives of the group described in subparagraph 20 (A)(iii). 21 (c) DUTIES.—The Commission shall— 22 (1) consider and create guidelines and limita- 23 tions for the use of facial recognition technology in 24 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 6 •S 3284 IS the United States to ensure that the use of such 1 technology does not— 2 (A) create a constant state of surveillance 3 of individuals in the United States that does 4 not allow for a level of reasonable anonymity; 5 (B) produce biased or inaccurate results; 6 (C) disproportionately impact a racial, eth- 7 nic, national origin group, or other protected 8 class of individuals; 9 (D) impinge on the privacy, free speech, or 10 due process rights of individuals in the United 11 States; or 12 (E) limit the ability of law enforcement of- 13 ficers to track down missing and exploited chil- 14 dren and trafficked individuals; and 15 (2) consider and recommend the appropriate 16 rules for governing the use and limitations on both 17 government and commercial use of facial recognition 18 technology, including— 19 (A) whether there are appropriate uses for 20 facial recognition technology without a warrant 21 by government officials in a private or public 22 space; 23 (B) what are the appropriate uses and lim- 24 itations for commercial use, including what 25 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 7 •S 3284 IS rights individuals should have relating to the 1 data produced and the use of their likeness in 2 facial recognition technology; 3 (C) in what circumstances, if any, govern- 4 ment officials should be permitted to use facial 5 recognition without a warrant; 6 (D) what rules should govern how and 7 where images may be acquired through facial 8 recognition technology, taking into account indi- 9 viduals’ reasonable expectations of privacy or 10 anonymity; 11 (E) in what situations individuals should 12 be able to opt out or required to opt in to the 13 use of facial recognition technology; 14 (F) what safeguards need to be put in 15 place to prevent abuse of facial recognition 16 technology; 17 (G) what are appropriate remedies when 18 facial recognition technology is misused; and 19 (H) what rights individuals have relating 20 to the data produced and the use of their like- 21 ness in facial recognition technology. 22 (d) REPORT.—Not later than 18 months after the 23 date of enactment of this Act, the Commission shall sub- 24 mit a report to Congress that contains— 25 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 8 •S 3284 IS (1) the guidelines required to be created under 1 subsection (c); 2 (2) recommendations for implementation of 3 such guidelines; and 4 (3) any minority views or recommendations of 5 the Commission. 6 (e) IMPLEMENTATION.— 7 (1) INTRODUCTION.—Not later than 90 days 8 after the date on which the report required under 9 subsection (d) is submitted to Congress— 10 (A) Congress shall prepare legislative lan- 11 guage to implement the recommendations in- 12 cluded in such report; and 13 (B) the legislative language prepared 14 under subparagraph (A)— 15 (i) shall be introduced in the Senate 16 (by request) not later than the third day 17 on which the Senate is in session after the 18 date on which the Commission approves 19 the legislative language by the majority 20 leader of the Senate or by a Member of the 21 Senate designated by the majority leader 22 of the Senate; and 23 (ii) shall be introduced in the House 24 of Representatives (by request) not later 25 VerDate Sep 11 2014 00:04 Feb 15, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 9 •S 3284 IS than the third day on which the House of 1 Representatives is in session after the date 2 on which the Commission approves the leg- 3 islative language by the majority leader of 4 the House of Representatives or by a 5 Member of the House of Representatives 6 designated by the majority leader of the 7 House of Representatives. 8 (2) CONSIDERATION IN THE HOUSE OF REP- 9 RESENTATIVES.— 10 (A) REFERRAL AND REPORTING.—Any 11 committee of the House of Representatives to 12 which an implementation bill is referred shall 13 report it to the House not later than 3 days 14 after the date on which the implementation bill 15 is introduced in the House of Representatives. 16 If a committee fails to report an implementa- 17 tion bill within that period, it shall be in order 18 to move that the House of Representatives dis- 19 charge the committee from further consider- 20 ation of the bill. Such a motion shall not be in 21 order after the last committee authorized to 22 consider the bill reports it to the House of Rep- 23 resentatives or after the House of Representa- 24 tives has disposed of a motion to discharge the 25 VerDate Sep 11 2014 20:16 Feb 18, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 10 •S 3284 IS bill. The previous question shall be considered 1 as ordered on the motion to its adoption with- 2 out intervening motion except 20 minutes of de- 3 bate equally divided and controlled by the pro- 4 ponent and an opponent. If such a motion is 5 adopted, the House of Representatives shall 6 proceed immediately to consider the implemen- 7 tation bill in accordance with subparagraphs 8 (B) and (C). A motion to reconsider the vote by 9 which the motion is disposed of shall not be in 10 order. 11 (B) PROCEEDING TO CONSIDERATION.— 12 After the last committee authorized to consider 13 an implementation bill reports it to the House 14 of Representatives or has been discharged from 15 its consideration, it shall be in order to move to 16 proceed to consider the implementation bill in 17 the House of Representatives. Such a motion 18 shall not be in order after the House of Rep- 19 resentatives has disposed of a motion to proceed 20 with respect to the implementation bill. The 21 previous question shall be considered as ordered 22 on the motion to its adoption without inter- 23 vening motion. A motion to reconsider the vote 24 VerDate Sep 11 2014 20:16 Feb 18, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 11 •S 3284 IS by which the motion is disposed of shall not be 1 in order. 2 (C) CONSIDERATION.—An implementation 3 bill shall be considered as read. All points of 4 order against an implementation bill and 5 against its consideration are waived. The pre- 6 vious question shall be considered as ordered on 7 an implementation bill to its passage without 8 intervening motion except 2 hours of debate 9 equally divided and controlled by the proponent 10 and an opponent and one motion to limit debate 11 on an implementation bill. A motion to recon- 12 sider the vote on passage of an implementation 13 bill shall not be in order. 14 (3) EXPEDITED PROCEDURE IN THE SENATE.— 15 (A) COMMITTEE CONSIDERATION.—An im- 16 plementation bill introduced in the Senate 17 under paragraph (1) shall be jointly referred to 18 the committee or committees of jurisdiction, 19 which committees shall report the bill and with 20 a favorable recommendation, an unfavorable 21 recommendation, or without recommendation 22 not later than 3 days after the date on which 23 the implementation bill is introduced. If any 24 committee fails to report an implementation bill 25 VerDate Sep 11 2014 20:16 Feb 18, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3284.IS S3284 kjohnson on DSK79L0C42PROD with BILLS 12 •S 3284 IS within that period, that committee shall be 1 automatically discharged from consideration of 2 the bill, and the implementation bill shall be 3 placed on the appropriate calendar. 4 (B) MOTION TO PROCEED.—Notwith- 5 standing rule XXII of the Standing Rules of 6 the Senate, it is in order, not later than 3 days 7 of session after the date on which an implemen- 8 tation bill is reported or discharged from all 9 committees to which it was referred, for the 10 majority leader of the Senate or the majority 11 leader’s designee to move to proceed to the con- 12 sideration of the implementation bill. It shall 13 also be in order for any Member of the Senate 14 to move to proceed to the consideration of the 15 implementation bill at any time after the con- 16 clusion of such 3-day period. A motion to pro- 17 ceed is in order even though a previous motion 18 to the same effect has been disagreed to. All 19 points of order against the motion to proceed to 20 an implementation bill are waived. The motion 21 to proceed is not debatable. The motion is not 22 subject to a motion to postpone. A motion to 23 reconsider the vote by which the motion is 24 agreed to or disagreed to shall not be in [Text truncated for display. Full text available on Congress.gov.]