II 

117TH CONGRESS 

2D SESSION S. 5334 

To establish best practices for the Federal use of facial recognition technology, 

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 Homeland Security and Governmental Affairs 

A BILL 

To establish best practices for the Federal use of facial 

recognition technology, 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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Facial, Accountability, Clarity, and Efficiency in Tech6 nology Act’’ or the ‘‘FACE IT Act’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Definitions. 

TITLE I—ESTABLISHING BEST PRACTICES FOR CURRENT 

FEDERAL USE OF FACIAL RECOGNITION TECHNOLOGY 


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Sec. 101. Disclosure of Federal uses of facial recognition technology. 

Sec. 102. Accuracy requirements for the procurement of facial recognition technology. 

Sec. 103. Requirement for procurement of facial recognition technology. 

Sec. 104. Disclosure of high risk use case. 

Sec. 105. Requirement of human involvement in facial recognition technology 

decisionmaking. 

Sec. 106. United States person notice and opt-out for non-investigative uses of 

facial recognition technology. 

Sec. 107. Guarantee of constitutional rights. 

Sec. 108. Database access restrictions for Federal use of facial recognition 

technology. 

Sec. 109. Notification for criminal defendants. 

Sec. 110. Rule of construction for facial recognition technology that is not high 

risk. 

Sec. 111. Limitation to civilian agencies. 

TITLE II—DEVELOPING BEST PRACTICES FOR FUTURE FEDERAL 

USE OF FACIAL RECOGNITION TECHNOLOGY 

Sec. 201. Establishment of a Federal Advisory Committee on Facial Recognition Technology. 

Sec. 202. Membership of the Federal Advisory Committee on Facial Recognition Technology. 

Sec. 203. Meetings of the Federal Advisory Committee on Face Recognition 

Technology. 

Sec. 204. Authorization of appropriations. 

TITLE III—FOIA 

Sec. 301. Applicability of FOIA. 

1 SEC. 2. DEFINITIONS. 

2 In this Act— 

3 (1) the term ‘‘Advisory Committee’’ means the 

4 Federal Advisory Committee on Facial Recognition 

5 Technology established under section 201(a); 

6 (2) the term ‘‘applicable congressional com7 mittee’’ means— 

8 (A) the Committee on Homeland Security 

9 and Governmental Affairs, the Committee on 

10 Commerce, Science, and Transportation, and 


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1 the Committee on the Judiciary of the Senate; 

2 and 

3 (B) the Committee on Homeland Security, 

4 the Committee on Energy and Commerce, the 

5 Committee on Oversight and Reform, the Com6 mittee on Science, Space, and Technology, and 

7 the Committee on the Judiciary of the House of 

8 Representatives; 

9 (3) the term ‘‘Director’’ means the Director of 

10 the Office of Management and Budget; 

11 (4) the term ‘‘facial recognition technology’’ 

12 means an automated or semi-automated process of— 

13 (A) generating a mathematical representa14 tion of an individual’s face, known as a probe 

15 face template; and 

16 (B)(i) querying a gallery populated with 

17 many face templates that may be linked to per18 sonally identifiable information and subse19 quently returning an identity if the similarity of 

20 the probe face template to any face template in 

21 the gallery is above a specified threshold; or 

22 (ii) comparing the probe face template to 

23 a specific face template of an existing image of 

24 the individual to verify their identity; 


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1 (5) the term ‘‘Federal agency’’ has the meaning 

2 given the term ‘‘agency’’ in section 3502 of title 44, 

3 United States Code; 

4 (6) the term ‘‘high risk’’, with respect to a use 

5 case, means one in which face recognition query out6 puts influence the decision to— 

7 (A) arrest or convict an individual, deny an 

8 individual access to government services to 

9 which the individual is legally entitled; or 

10 (B) take other action that directly impacts 

11 the fundamental rights or equal protection of 

12 that individual under the law; 

13 (7) the term ‘‘intelligence community’’ has the 

14 meaning given the term in section 3 of the National 

15 Security Act of 1947 (50 U.S.C. 3003); 

16 (8) the term ‘‘Secretary’’ means the Secretary 

17 of Homeland Security; 

18 (9) the term ‘‘use case’’— 

19 (A) means a description of the ways and 

20 circumstances in which a technology is operated 

21 to perform a specific function; and 

22 (B) does not include research programs 

23 that use Institutional Review Board informed 

24 consent; and 


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1 (10) the term ‘‘security use case’’ means the 

2 ways and circumstances in which a technology is op3 erated to perform a specific function related to— 

4 (A) conducting a criminal investigation; 

5 (B) protecting national security; 

6 (C) monitoring and preventing unauthor7 ized access to Federal buildings; or 

8 (D) detecting or combating fraud or other 

9 illegal activity. 

10 TITLE I—ESTABLISHING BEST 

11 PRACTICES FOR CURRENT 

12 FEDERAL USE OF FACIAL 

13 RECOGNITION TECHNOLOGY 

14 SEC. 101. DISCLOSURE OF FEDERAL USES OF FACIAL REC15 OGNITION TECHNOLOGY. 

16 (a) IN GENERAL.—Not later than 270 days after the 

17 date of enactment of this Act, and biannually thereafter, 

18 the Director shall submit to the applicable congressional 

19 committees a report on all Federal Government programs 

20 that use face recognition technology. 

21 (b) EXECUTION OF REPORT.—In order to facilitate 

22 the submission of the report under subsection (a), the 

23 head of each Federal agency shall provide necessary infor24 mation to the Director at the request of the Director. 


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1 (c) CONTENTS.—Each report submitted under sub2 section (a) shall include— 

3 (1) a description of each facial recognition tech4 nology use case deployed by a Federal agency; 

5 (2) an evaluation of how facial recognition tech6 nologies deployed by a Federal agency comply with 

7 the accuracy requirements under section 102; 

8 (3) a list of the private sector entities which 

9 provide facial recognition technologies to each Fed10 eral agency for each use case; 

11 (4) a list of the State, local, and Tribal govern12 ment agencies and entities that provide access to fa13 cial recognition technologies to each Federal agency 

14 for each use case; 

15 (5) the databases that facial recognition tech16 nology queries for each Federal agency for each use 

17 case and, if applicable, the authorization allowing ac18 cess to privately owned and maintained databases; 

19 (6) an explanation of the reasons, with quan20 titative rationales where possible, for using facial 

21 recognition technology for each use case; 

22 (7) for each use case described in paragraph 

23 (1), an enumeration of whether the use case is high 

24 risk; and 


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1 (8) any additional information the Director de2 termines appropriate. 

3 (d) FORM OF REPORT.—Each report required under 

4 subsection (a) shall be submitted in an unclassified form, 

5 but may contain a classified annex. 

6 SEC. 102. ACCURACY REQUIREMENTS FOR THE PROCURE7 MENT OF FACIAL RECOGNITION TECH8 NOLOGY. 

9 (a) DEVELOPMENT OF ACCURACY REQUIREMENTS.— 

10 Not later than 1 year after the first report is submitted 

11 under section 101(a), the Director of the National Insti12 tute for Standards and Technology and the Secretary, in 

13 consultation with the Director of the Office of Science and 

14 Technology Policy and other agencies and entities as ap15 propriate, shall develop minimum accuracy requirements, 

16 specific to each Federal agency, for use cases of facial rec17 ognition technology in the Federal Government as deter18 mined in the report. 

19 (b) DEVELOPMENT OF ACCURACY REQUIREMENTS

20 FOR HIGH RISK USE CASES.—In developing the require21 ments under subsection (a), the Director of the National 

22 Institute for Standards and Technology shall ensure that 

23 the requirements for the use cases identified as high risk 

24 shall be more strict than the requirements for the uses 

25 cases that are not high risk. 


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1 (c) CERTIFICATION FOR THE ACCURACY STAND2 ARDS.—The head of each Federal agency shall develop a 

3 process to ensure that, with the exception of research and 

4 testing, the facial recognition technology used by the Fed5 eral agency meets the relevant requirements established 

6 under subsection (a). 

7 (d) ACCURACY ACROSS DEMOGRAPHIC GROUPS.— 

8 The requirements under subsection (a) shall include min9 imum accuracy requirements for individuals regardless of 

10 different skin tone or race, disability status, age, or sex, 

11 alone and in combination, to ensure that facial recognition 

12 technology can accurately identify diverse individuals. 

13 (e) TRANSPARENCY REQUIREMENTS.—Not later 

14 than 30 days after the date on which the requirements 

15 are developed under subsection (a), the Director of the 

16 National Institute for Standards and Technology shall 

17 make such requirements available on a public website. 

18 SEC. 103. REQUIREMENT FOR PROCUREMENT OF FACIAL 

19 RECOGNITION TECHNOLOGY. 

20 (a) IN GENERAL.—Except as provided in subsection 

21 (c), before a Federal agency procures or acquires a facial 

22 recognition technology, the Federal agency shall— 

23 (1) publicly report testing and performance re24 sults from the Face Recognition Vendor Testing 

25 Program of the National Institute of Standards and 


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1 Technology or other reputable testing authority in a 

2 manner that is compatible with Global Reporting 

3 Initiative 102 requirements for the facial recognition 

4 systems that the Federal agency aims to procure or 

5 acquire; 

6 (2) certify to the Director that the technology 

7 shall meet the accuracy requirements developed 

8 under section 102; and 

9 (3) include the certification described in para10 graph (1) in the next report required under section 

11 101. 

12 (b) LIMITATION ON PROCUREMENT OF FACIAL REC13 OGNITION.— 

14 (1) IN GENERAL.—On and after the date on 

15 which the accuracy requirements are developed 

16 under section 102(a), the head of a Federal agency 

17 shall not procure or acquire facial recognition tech18 nology that does not meet the requirements under 

19 subsection (a). 

20 (2) ACQUISITIONS BEFORE DEVELOPMENT OF

21 ACCURACY REQUIREMENTS.—The head of a Federal 

22 agency— 

23 (A) may procure or acquire facial recogni24 tion technology before the date described in 

25 paragraph (1); and 


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1 (B) if the head of the Federal agency pro2 cures or acquires technology described in sub3 paragraph (A), shall ensure that the technology 

4 meets the requirements under subsection (a) 

5 not later than 1 year after the date on which 

6 the accuracy requirements are developed under 

7 section 102(a). 

8 (c) EXCEPTIONS.—The requirements under sub9 section (a) shall not apply to a facial recognition algorithm 

10 software update, enhancement, derivative, correction, de11 fect, or fix, or research program exempted under section 

12 102. 

13 SEC. 104. DISCLOSURE OF HIGH RISK USE CASE. 

14 (a) TESTING AND TRANSPARENCY FOR HIGH RISK

15 USE CASES.—Not later than 30 days after a report re16 quired under section 101 is submitted, each Federal agen17 cy shall report on a publicly available and easily accessible 

18 Federal website the testing and performance results of the 

19 relevant facial recognition algorithm from the Face Rec20 ognition Vendor Testing Program of the National Insti21 tute of Standards and Technology or other reputable test22 ing authority for high risk use cases. 

23 (b) UPDATES.—Each Federal agency shall update 

24 the results published under subsection (a) following the 


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1 identification of new high risk use cases in subsequent re2 ports submitted under section 101. 

3 SEC. 105. REQUIREMENT OF HUMAN INVOLVEMENT IN FA4 CIAL RECOGNITION TECHNOLOGY DECISION5 MAKING. 

6 (a) IN GENERAL.—A Federal agency shall not take 

7 any adverse final action to an identified or verified indi8 vidual that was based on a query output from facial rec9 ognition technology deployed by that Federal agency un10 less a human person has reviewed the facial recognition 

11 technology query output and documented the human in12 volvement in the process. 

13 (b) QUALIFICATIONS FOR HIGH RISK USE CASES.— 

14 With respect to a high risk use case, the individual de15 scribed in subsection (a) shall be qualified in accordance 

16 with the relevant training standards developed by the Face 

17 Identification Scientific Working Group for particular use 

18 cases. 

19 SEC. 106. UNITED STATES PERSON NOTICE AND OPT-OUT 

20 FOR NON-INVESTIGATIVE USES OF FACIAL 

21 RECOGNITION TECHNOLOGY. 

22 (a) IN GENERAL.—A Federal agency that uses facial 

23 recognition technology for a purpose other than a criminal 

24 investigation or other security use case, such as identity 

25 verification, shall— 


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1 (1) notify the United States person that they 

2 are or were subject to identity verification by facial 

3 recognition technology; and 

4 (2) provide the United States person an alter5 native method of identity verification that does not 

6 involve the use of facial recognition technology. 

7 (b) PUBLICATION OF OPT-OUT AVAILABILITY.—Fed8 eral agencies using facial recognition technology in a man9 ner described in subsection (a) shall communicate to a 

10 United States person subject to the use of facial recogni11 tion technology that the United States person can elect 

12 to verify their identity using an alternative method that 

13 does not involve the use of facial recognition technology. 

14 (c) SIMPLICITY OF THE OPT-OUT.—For United 

15 States persons that exercise the rights under subsection 

16 (b), Federal agencies shall not impose a burden for opting 

17 out that is substantially greater than the person would ex18 perience by using facial recognition technology. 

19 SEC. 107. GUARANTEE OF CONSTITUTIONAL RIGHTS. 

20 A Federal agency shall not use facial recognition 

21 technology to violate any rights guaranteed by the Con22 stitution of the United States. 


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1 SEC. 108. DATABASE ACCESS RESTRICTIONS FOR FEDERAL 

2 USE OF FACIAL RECOGNITION TECHNOLOGY. 

3 No component, official, or personnel of a Federal 

4 agency shall use facial recognition technology to access a 

5 privately owned and maintained database without prior 

6 authorization from the head of the Federal agency, with 

7 the exception of a database used for a research and testing 

8 program. 

9 SEC. 109. NOTIFICATION FOR CRIMINAL DEFENDANTS. 

10 Any criminal defendant, or a counsel thereof, identi11 fied through an investigative process that used facial rec12 ognition technology in the course of the investigation that 

13 led to identifying the defendant by the Federal agency 

14 conducting the investigative process shall receive notice 

15 that facial recognition technology was used in the inves16 tigative process. 

17 SEC. 110. RULE OF CONSTRUCTION FOR FACIAL RECOGNI18 TION TECHNOLOGY THAT IS NOT HIGH RISK. 

19 Nothing in this title shall be construed to diminish 

20 any Federal requirements with respect to face recognition 

21 technology that is not classified as high risk. 

22 SEC. 111. LIMITATION TO CIVILIAN AGENCIES. 

23 Nothing in this title shall apply to the Department 

24 of Defense or any element of the intelligence community. 


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1 TITLE II—DEVELOPING BEST 

2 PRACTICES FOR FUTURE 

3 FEDERAL USE OF FACIAL 

4 RECOGNITION TECHNOLOGY 

5 SEC. 201. ESTABLISHMENT OF A FEDERAL ADVISORY COM6 MITTEE ON FACIAL RECOGNITION TECH7 NOLOGY. 

8 (a) ESTABLISHMENT.—The Director, in consultation 

9 with the Secretary, the Director of the National Institute 

10 for Standards and Technology, and the head of any other 

11 Federal agency that the Director determines appropriate, 

12 shall establish a Federal advisory committee on the use 

13 of facial recognition technology to be known as the ‘‘Fed14 eral Advisory Committee on Facial Recognition Tech15 nology’’ to advise Federal agencies on matters related to 

16 the use of facial recognition technology. 

17 (b) PURPOSES OF THE ADVISORY COMMITTEE.—The 

18 Advisory Committee shall advise the Federal agencies 

19 on— 

20 (1) opportunities to deploy facial recognition 

21 technology to improve the effectiveness of the Fed22 eral Government; 

23 (2) the risks associated with the use of facial 

24 recognition technology in different use cases; 


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1 (3) the ways that Federal agencies can improve 

2 the safety and reliability of facial recognition tech3 nology, including through research and development 

4 funding to support face recognition technology inno5 vation; 

6 (4) the ethics of facial recognition technology 

7 and its use, including mitigating potential bias asso8 ciated with the use of facial recognition; 

9 (5) protections for privacy, civil liberties, civil 

10 rights, and information security when using facial 

11 recognition; 

12 (6) the ways that Federal agencies can manage, 

13 track, and resolve facial recognition failure rates re14 lating to skin complexion or color; 

15 (7) trends in the use of facial recognition tech16 nology; 

17 (8) any necessary updates to the list of high 

18 risk use cases that should be enumerated in the bi19 annual reports required under section 101(a); 

20 (9) requirements for monitoring and docu21 menting any Federal agency use of facial recognition 

22 technology that the Federal Government does not 

23 own for a high risk use case; and 

24 (10) any other safeguards necessary, including 

25 audit and compliance procedures, standards, and 


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1 training programs, to ensure the safe and reliable 

2 deployment of new facial recognition systems not 

3 currently used by the Federal Government. 

4 (c) ANNUAL REPORT.—Not later than 1 year after 

5 the date of enactment of this Act and every year there6 after, the Director shall submit a report on the activities 

7 of the of the Advisory Committee and any guidance pro8 vided to Federal agencies on matters related to the use 

9 of facial recognition technology to— 

10 (1) the Committee on Homeland Security and 

11 Governmental Affairs of the Senate; 

12 (2) the Committee on Commerce, Science, and 

13 Transportation of the Senate; 

14 (3) the Committee on Homeland Security of the 

15 House of Representatives; 

16 (4) the Committee on Oversight and Reform of 

17 the House of Representatives; and 

18 (5) the Committee on Science, Space, and 

19 Technology of the House of Representatives. 

20 SEC. 202. MEMBERSHIP OF THE FEDERAL ADVISORY COM21 MITTEE ON FACIAL RECOGNITION TECH22 NOLOGY. 

23 (a) IN GENERAL.—The Advisory Committee shall be 

24 composed of 17 members who shall be appointed by the 


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1 Secretary in addition to the representatives listed in sub2 section (c). 

3 (b) REPRESENTATION.—In carrying out subsection 

4 (a), the Secretary shall ensure that members are ap5 pointed as follows: 

6 (1) 4 members from private industry, including 

7 small businesses. 

8 (2) 4 members from the academic or research 

9 community who are computer scientists or otherwise 

10 primarily technical experts in the science and engi11 neering behind facial recognition technology. 

12 (3) 4 members from civil society, including indi13 viduals that advocates for privacy, civil liberties, or 

14 civil rights. 

15 (4) 1 member from the Biometric and Identity 

16 Technology Center of the Department of Homeland 

17 Security. 

18 (5) 1 member from the Face Identification Sci19 entific Working Group. 

20 (6) 1 member from the Face Identification Sub21 committee of the Organization of Scientific Area 

22 Committees for Forensic Science of the National In23 stitute of Standards and Technology. 

24 (c) EX-OFFICIO REPRESENTATION.—The Advisory 

25 Committee shall be composed of 1 ex-officio representative 


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1 knowledgeable in biometric risks, benefits, programs, poli2 cies, operations, and applications from— 

3 (1) the National Institute of Standards and 

4 Technology; 

5 (2) the Department of Commerce; 

6 (3) the General Services Administration; 

7 (4) the Department of Justice; 

8 (5) the Department of Homeland Security; 

9 (6) the Department of State; 

10 (7) the Department of Education; 

11 (8) the Department of Energy; 

12 (9) the Transportation Security Administration; 

13 (10) the Department of Veterans Affairs; 

14 (11) U.S. Customs and Border Protection; 

15 (12) U.S. Immigration and Customs Enforce16 ment; 

17 (13) the Federal Emergency Management 

18 Agency; 

19 (14) the Office of Biometric Identity Manage20 ment; 

21 (15) the National Science Foundation; 

22 (16) the National Science and Technology 

23 Council; 

24 (17) the Office of Science and Technology Pol25 icy; and 


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1 (18) such other Federal agencies as the Sec2 retary considers appropriate. 

3 (d) CHAIRPERSON.—The Secretary shall appoint a 

4 chairperson for the Advisory Committee from among the 

5 members appointed under subsection (a). 

6 SEC. 203. MEETINGS OF THE FEDERAL ADVISORY COM7 MITTEE ON FACE RECOGNITION TECH8 NOLOGY. 

9 (a) MEETINGS.—The Advisory Committee shall meet 

10 in person, or by telepresence, not less frequently than 

11 twice per year. 

12 (b) POWERS.—In order to carry out its duties under 

13 section 201, the Advisory Committee shall— 

14 (1) hold such hearings, sit and act at such 

15 times and places, take such testimony, and receive 

16 such evidence as the Advisory Committee considers 

17 appropriate; 

18 (2) submit to Federal agencies such rec19 ommendations as the Advisory Committee considers 

20 appropriate; 

21 (3) issue reports, guidelines, and memoranda; 

22 (4) hold or host conferences and symposia; 

23 (5) establish subcommittees; and 

24 (6) establish rules of procedure. 


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1 (c) TRAVEL EXPENSES.—The members of the Advi2 sory Committee shall be allowed travel expenses, including 

3 per diem in lieu of subsistence, at rates authorized for em4 ployees of Federal agencies under subchapter I of chapter 

5 57 of title 5, United States Code, while away from their 

6 homes or regular places of business in the performance 

7 of services for the Advisory Committee. 

8 SEC. 204. AUTHORIZATION OF APPROPRIATIONS. 

9 There is authorized to be appropriated such sums as 

10 may be necessary to carry out the requirements of this 

11 title. 

12 TITLE III—FOIA 

13 SEC. 301. APPLICABILITY OF FOIA. 

14 Nothing in this Act, or in a report produced under 

15 section 101, shall be construed to allow the disclosure of 

16 information or a record that is exempt from public disclo17 sure under section 552 of title 5, United States Code 

18 (commonly known as the ‘‘Freedom of Information Act’’). 

Æ 


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