II 

117TH CONGRESS 

2D SESSION S. 5351 

To clarify the applicability of civil rights law to algorithmic decisions, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 21, 2022 

Mr. PORTMAN introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To clarify the applicability of civil rights law to algorithmic 

decisions, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Stopping Unlawful 

5 Negative Machine Impacts through National Evaluation 

6 Act’’. 

7 SEC. 2. DEFINITIONS. 

8 In this Act: 

9 (1) ARTIFICIAL INTELLIGENCE.—The term ‘‘ar10 tificial intelligence’’ has the meaning given the term 


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1 in section 238(g) of the John S. McCain National 

2 Defense Authorization Act for Fiscal Year 2019 (10 

3 U.S.C. 2358 note). 

4 (2) ARTIFICIAL INTELLIGENCE SYSTEM.—The 

5 term ‘‘artificial intelligence system’’ means any data 

6 system, software, application, tool, or utility that op7 erates in whole or in part using dynamic or static 

8 machine learning algorithms or other forms of artifi9 cial intelligence, including a data system, software, 

10 application, tool, or utility— 

11 (A) that is established primarily for the 

12 purpose of researching, developing, or imple13 menting artificial intelligence technology; and 

14 (B) for which the artificial intelligence ca15 pability is integrated into another system or 

16 business process, operational activity, or tech17 nology system. 

18 (3) COVERED CIVIL RIGHTS LAW.—The term 

19 ‘‘covered civil rights law’’ means— 

20 (A) the Civil Rights Act of 1964 (42 

21 U.S.C. 2000a et seq.), the Age Discrimination 

22 in Employment Act of 1967 (29 U.S.C. 621 et 

23 seq.), the Americans with Disabilities Act of 

24 1990 (42 U.S.C. 12101 et seq.), title V of the 

25 Rehabilitation Act of 1973 (29 U.S.C. 791 et 


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1 seq.), section 6(d) of the Fair Labor Standards 

2 Act of 1938 (29 U.S.C. 206(d)), title II of the 

3 Genetic Information Nondiscrimination Act of 

4 2008 (42 U.S.C. 2000ff et seq.), subchapter II 

5 of chapter 43 of title 38, United States Code, 

6 title IX of the Education Amendments of 1972 

7 (20 U.S.C. 1681 et seq.), the Age Discrimina8 tion Act of 1975 (42 U.S.C. 6101 et seq.), and 

9 any provision of Federal, State, or local law, in10 cluding the Constitution of the United States, 

11 that prohibits discrimination in public or pri12 vate employment (including contracting), or in 

13 the provision of a program or activity or accom14 modation, on the basis of a protected class; and 

15 (B) the Immigration and Nationality Act 

16 (8 U.S.C. 1101 et seq.), the Voting Rights Act 

17 of 1965 (52 U.S.C. 10301 et seq.), and any 

18 provision of Federal, State, or local law, includ19 ing the Constitution of the United States, that 

20 prohibits discrimination concerning legal status 

21 or a legal right on the basis of a protected 

22 class. 

23 (4) COVERED ENTITY.—The term ‘‘covered en24 tity’’ means any person (including a partnership, 


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1 corporation, Federal, State, or local agency, or enti2 ty) that is subject to a covered civil rights law. 

3 (5) DIRECTOR.—The term ‘‘Director’’ means 

4 the Director of the National Institute for Standards 

5 and Technology. 

6 SEC. 3. APPLICABILITY OF CIVIL RIGHTS LAWS TO DECI7 SIONS MADE BY OR AUGMENTED BY ALGO8 RITHMS. 

9 (a) PURPOSE.—The purpose of this section to remove 

10 any doubt about the liability described in subsection (b) 

11 of a covered entity described in subsection (b). 

12 (b) LIABILITY.—A covered entity that uses artificial 

13 intelligence to make or inform a decision that has an im14 pact on a person that is addressed by a covered civil rights 

15 law, including whether to provide a program or activity 

16 or accommodation to a person, shall be liable for a claim 

17 of discrimination under the corresponding covered civil 

18 rights law in the same manner and to the same extent 

19 (including being liable pursuant to that law’s standard of 

20 culpability) as if the covered entity had made such decision 

21 without the use of artificial intelligence. 


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1 SEC. 4. REQUIREMENT FOR NATIONAL INSTITUTE OF 

2 STANDARDS AND TECHNOLOGY PROGRAM OF 

3 TECHNOLOGY EVALUATIONS OF BIAS AND 

4 DISCRIMINATION IN ARTIFICIAL INTEL5 LIGENCE SYSTEMS. 

6 (a) ESTABLISHMENT OF TECHNOLOGY EVALUATION

7 PROGRAM.—Not later than 1 year after the date of the 

8 enactment of this Act, the Director shall establish a pro9 gram for conducting technology evaluations to assess and 

10 assist in mitigating bias and discrimination in artificial in11 telligence systems of covered entities with respect to race, 

12 sex, age, disability, and other classes or characteristics 

13 protected by covered civil rights laws. In establishing such 

14 program, the Director shall ensure that such evaluations 

15 effectively approximate real-world applications of artificial 

16 intelligence systems. 

17 (b) PRIORITY EVALUATION AREAS.—In carrying out 

18 the program required under subsection (a), the Director 

19 shall prioritize the conduct of technology evaluations to 

20 mitigate bias in— 

21 (1) the applications identified as high risk by 

22 previous technology evaluations and strategy docu23 ments; 

24 (2) speech recognition and synthesis; 

25 (3) recommendation systems, including for fi26 nancial and criminal justice applications; 


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1 (4) sensitive image recognition technology, in2 cluding facial and gait recognition systems; and 

3 (5) any other artificial intelligence use case that 

4 poses a high risk for discrimination based on classes 

5 or characteristics protected by covered civil rights 

6 laws, such as image and video synthesis, text genera7 tion, and conversation and information systems. 

8 (c) PARTICIPATION.—In designing technology evalua9 tions under subsection (a), the Director shall ensure the 

10 participation of any industry and nongovernmental experts 

11 and entities in the fields of artificial intelligence, machine 

12 learning, computer science, social sciences, civil rights, and 

13 civil liberties seeking to participate in such evaluations. 

14 (d) AUTHORIZATION OF APPROPRIATIONS.—There is 

15 authorized to be appropriated to the Director such sums 

16 as may be necessary to carry out this section for each of 

17 the fiscal years 2023 through 2028. 

18 (e) SUNSET.—The program required under sub19 section (a) shall terminate on December 31, 2028. 

Æ 


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