II 

116TH CONGRESS 

2D SESSION S. 4084 

To prohibit biometric surveillance by the Federal Government without explicit 

statutory authorization and to withhold certain Federal public safety 

grants from State and local governments that engage in biometric surveillance. 

IN THE SENATE OF THE UNITED STATES 

JUNE 25, 2020 

Mr. MARKEY (for himself and Mr. MERKLEY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To prohibit biometric surveillance by the Federal Government 

without explicit statutory authorization and to withhold 

certain Federal public safety grants from State and local 

governments that engage in biometric surveillance. 

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 ‘‘Facial Recognition and 

5 Biometric Technology Moratorium Act of 2020’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) BIOMETRIC SURVEILLANCE SYSTEM.—The 

2 term ‘‘biometric surveillance system’’ means any 

3 computer software that performs facial recognition 

4 or other remote biometric recognition in real time or 

5 on a recording or photograph. 

6 (2) BYRNE GRANT PROGRAM.—The term 

7 ‘‘Byrne grant program’’ means the grant program 

8 authorized under subpart 1 of part E of title I of 

9 the Omnibus Crime Control and Safe Streets Act of 

10 1968 (34 U.S.C. 10151 et seq.), whether character11 ized as the Edward Byrne Memorial State and Local 

12 Law Enforcement Assistance Programs, the Local 

13 Government Law Enforcement Block Grants Pro14 gram, the Edward Byrne Memorial Justice Assist15 ance Grant Program, or otherwise. 

16 (3) FACIAL RECOGNITION.—The term ‘‘facial 

17 recognition’’ means an automated or semi-automated 

18 process that— 

19 (A) assists in identifying an individual, 

20 capturing information about an individual, or 

21 otherwise generating or assisting in generating 

22 surveillance information about an individual 

23 based on the physical characteristics of the indi24 vidual’s face; or 


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1 (B) logs characteristics of an individual’s 

2 face, head, or body to infer emotion, associa3 tions, activities, or the location of an individual. 

4 (4) FEDERAL OFFICIAL.—The term ‘‘Federal 

5 official’’ means any officer, employee, agent, con6 tractor, or subcontractor of the Federal Government. 

7 (5) IN THE UNITED STATES.—The term ‘‘in the 

8 United States’’ means all areas within the external 

9 boundary of the United States, its territories and 

10 possessions, including airports, ports of entry, and 

11 border zones. 

12 (6) OTHER REMOTE BIOMETRIC RECOGNI13 TION.—The term ‘‘other remote biometric recogni14 tion’’— 

15 (A) means an automated or semi-auto16 mated process that— 

17 (i) assists in identifying an individual, 

18 capturing information about an individual, 

19 or otherwise generating or assisting in gen20 erating surveillance information about an 

21 individual based on the characteristics of 

22 the individual’s gait or other immutable 

23 characteristic ascertained from a distance; 

24 (ii) uses voice recognition technology; 

25 or 


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1 (iii) logs such characteristics to infer 

2 emotion, associations, activities, or the lo3 cation of an individual; and 

4 (B) does not include identification based 

5 on fingerprints or palm prints. 

6 (7) VOICE RECOGNITION TECHNOLOGY.—The 

7 term ‘‘voice recognition technology’’ means the auto8 mated or semi-automated process that assists in 

9 identifying or verifying an individual based on the 

10 characteristics of an individual’s voice. 

11 SEC. 3. PROHIBITION ON FEDERAL GOVERNMENT USE OF 

12 BIOMETRIC SURVEILLANCE. 

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

14 (b), it shall be unlawful for any Federal agency or Federal 

15 official, in an official capacity, to acquire, possess, access, 

16 or use in the United States— 

17 (1) any biometric surveillance system; or 

18 (2) information derived from a biometric sur19 veillance system operated by another entity. 

20 (b) EXCEPTION.—The prohibition set forth in sub21 section (a) does not apply to activities explicitly authorized 

22 by an Act of Congress that describes, with particularity— 

23 (1) the entities permitted to use the biometric 

24 surveillance system, the specific type of biometric 


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1 authorized, the purposes for such use, and any pro2 hibited uses; 

3 (2) standards for use and management of infor4 mation derived from the biometric surveillance sys5 tem, including data retention, sharing, access, and 

6 audit trails; 

7 (3) auditing requirements to ensure the accu8 racy of biometric surveillance system technologies, 

9 standards for minimum accuracy rates, and accuracy 

10 rates by gender, skin color, and age; 

11 (4) rigorous protections for due process, pri12 vacy, free speech and association, and racial, gender, 

13 and religious equity; and 

14 (5) mechanisms to ensure compliance with the 

15 provisions of the Act. 

16 (c) JUDICIAL INVESTIGATIONS AND PROCEEDINGS.— 

17 (1) ADMISSIBILITY.—Except in a judicial inves18 tigation or proceeding alleging a violation of this sec19 tion, information obtained in violation of this section 

20 is not admissible by the Federal Government in any 

21 criminal, civil, administrative, or other investigation 

22 or proceeding. 

23 (2) CAUSE OF ACTION.— 


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1 (A) IN GENERAL.—A violation of this sec2 tion constitutes an injury to any individual ag3 grieved by a violation of this Act. 

4 (B) RIGHT TO SUE.—An individual de5 scribed in subparagraph (A) may institute pro6 ceedings against the Federal Government whose 

7 official is alleged to have violated this section 

8 for the relief described in subparagraph (D) in 

9 any court of competent jurisdiction. 

10 (C) ENFORCEMENT BY STATE ATTORNEYS

11 GENERAL.—The chief law enforcement officer 

12 of a State, or any other State officer authorized 

13 by law to bring actions on behalf of the resi14 dents of a State, may bring a civil action, as 

15 parens patriae, on behalf of the residents of 

16 that State in an appropriate district court of 

17 the United States to enforce this Act, whenever 

18 the chief law enforcement officer or other State 

19 officer has reason to believe that the interests 

20 of the residents of the State have been or are 

21 being threatened or adversely affected by a vio22 lation of this Act. 

23 (D) RELIEF.—In a civil action brought 

24 under subparagraph (B) in which the plaintiff 

25 prevails, the court may award— 


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1 (i) actual damages; 

2 (ii) punitive damages; 

3 (iii) reasonable attorneys’ fees and 

4 costs; and 

5 (iv) any other relief, including injunc6 tive relief, that the court determines to be 

7 appropriate. 

8 (d) CIVIL PENALTIES.—Any Federal official who is 

9 found to have violated this section may be subject to re10 training, suspension, termination, or any other penalty, as 

11 determined in an appropriate tribunal, subject to applica12 ble due process requirements. 

13 (e) FEDERAL FUNDING.— 

14 (1) IN GENERAL.—No Federal funds may be 

15 obligated or expended by a Federal law enforcement 

16 agency for the purchase or use of a biometric sur17 veillance system. 

18 (2) UNALLOCATED FUNDS.—No Federal agency 

19 may use any unallocated funds appropriated to the 

20 agency for the purchase or use of a biometric sur21 veillance system. 

22 (f) RULES OF CONSTRUCTION.—Nothing in this sec23 tion may be construed— 

24 (1) to prohibit the National Institute of Stand25 ards and Technology (NIST) from testing or reVerDate Sep 11 2014 07:31 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4084.IS S4084

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1 searching biometric surveillance systems or other re2 mote biometric recognition technologies in commer3 cial use; or 

4 (2) to preempt or supersede any Federal, State, 

5 or local law that imposes a more stringent limitation 

6 than the limitations described in this section. 

7 SEC. 4. MORATORIUM ON STATE AND LOCAL GOVERNMENT 

8 USE OF BIOMETRIC SURVEILLANCE SYSTEMS. 

9 (a) FEDERAL FINANCIAL ASSISTANCE.—Beginning 

10 on the first day of the first fiscal year beginning after the 

11 date of the enactment of this Act, a State or unit of local 

12 government is ineligible to receive Federal financial assist13 ance under the Byrne grant program unless the State or 

14 unit of local government is complying with a law or policy 

15 that is substantially similar to the prohibition set forth 

16 in section 3(a). 

17 (b) RULE OF CONSTRUCTION.—Nothing in this sec18 tion may be construed to preempt or supersede any Fed19 eral, State, or local law that imposes a more stringent lim20 itation than the prohibition set forth in section 3(a). 

Æ 


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