I 

117TH CONGRESS 

1ST SESSION H. R. 2438 

To prohibit the use of trade secrets privileges to prevent defense access 

to evidence in criminal proceedings, provide for the establishment of 

Computational Forensic Algorithm Testing Standards and a Computational Forensic Algorithm Testing Program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 8, 2021 

Mr. TAKANO (for himself and Mr. EVANS) introduced the following bill; which 

was referred to the Committee on the Judiciary, and in addition to the 

Committee on Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To prohibit the use of trade secrets privileges to prevent 

defense access to evidence in criminal proceedings, provide for the establishment of Computational Forensic 

Algorithm Testing Standards and a Computational Forensic Algorithm Testing Program, 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 ‘‘Justice in Forensic 

5 Algorithms Act of 2021’’. 


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1 SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM TESTING 

2 STANDARDS. 

3 (a) IN GENERAL.—Not later than 1 year after the 

4 date of enactment of this Act, the Director of the National 

5 Institute of Standards and Technology shall establish a 

6 program to provide for creation and maintenance of stand7 ards for testing computational forensic software, to be 

8 known as the Computational Forensic Algorithm Testing 

9 Standards, consistent with the following: 

10 (1) Testing standards shall include an assess11 ment for the potential for disparate impact, on the 

12 basis of race, ethnicity, socioeconomic status, gender, 

13 and other demographic features. 

14 (2) Testing standards shall address— 

15 (A) the underlying scientific principles and 

16 methods implemented in computational forensic 

17 software; and 

18 (B) requirements for testing the software 

19 including the conditions under which it needs to 

20 be tested, types of testing data to be used, test21 ing environments, testing methodologies, and 

22 system performance statistics required to be re23 ported including— 

24 (i) accuracy, including false positive 

25 and false negative error rates; 

26 (ii) precision; 


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1 (iii) reproducibility; 

2 (iv) robustness; 

3 (v) sensitivity; and 

4 (vi) system failure rates; 

5 (C) requirements for publicly available doc6 umentation by developers of computational fo7 rensic software of the purpose and function of 

8 the software, the development process, including 

9 source and description of data used to develop 

10 the tool, and internal testing methodology and 

11 results, including source and description of test12 ing data; 

13 (D) requirements for laboratories and any 

14 other entities using computational forensic soft15 ware to validate it for use, including to specify 

16 the conditions under which the lab has vali17 dated it for their use, requirements for what in18 formation needs to be included in a public re19 port on the lab or other entity’s validation, and 

20 requirements for internal validation updates 

21 when there are material changes to the soft22 ware; and 

23 (E) requirements for reports provided to 

24 defendants by prosecution produced docuVerDate Sep 11 2014 19:46 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2438.IH H2438

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1 menting the use and results of computational 

2 forensic software used in individual cases. 

3 (3) Testing standards shall be issued as a rule4 making under section 553 of title 5, United States 

5 Code. 

6 (4) The Director shall consult with outside ex7 perts in forensic science, bioethics, algorithmic dis8 crimination, data privacy, racial justice, criminal jus9 tice reform, exonerations, and other relevant areas 

10 of expertise identified through public input. 

11 (b) PROTECTION OF TRADE SECRETS.— 

12 (1) There shall be no trade secret evidentiary 

13 privilege to withhold relevant evidence in criminal 

14 proceedings in the United States courts. 

15 (2) Nothing in this section may be construed to 

16 alter the standard operation of the Federal Rules of 

17 Criminal Procedure, or the Federal Rules of Evi18 dence, as such rules would function in the absence 

19 of an evidentiary privilege. 

20 (c) REQUIREMENTS FOR FEDERAL USE OF FOREN21 SIC ALGORITHMS.—Any Federal law enforcement agency 

22 or crime laboratory providing services to a Federal law 

23 enforcement agency using computational forensic software 

24 may use only software that has been tested under the Na25 tional Institute of Standards and Technology’s ComputaVerDate Sep 11 2014 19:46 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2438.IH H2438

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1 tional Forensic Algorithm Testing Program and shall con2 duct an internal validation according to the requirements 

3 outlined in the Computational Forensic Algorithm Testing 

4 Standards and make the results publicly available. The in5 ternal validation shall be updated when there is a material 

6 change in the software that triggers a retesting by the 

7 Computational Forensic Algorithm Testing Program. 

8 (d) TESTING PROGRAM.—The Director of the Na9 tional Institute of Standards and Technology shall estab10 lish a Computational Forensic Algorithm Testing Pro11 gram, whose activities include the following: 

12 (1) Testing individual software programs using 

13 the testing requirements established in the Computa14 tional Forensic Algorithm Testing Standards. 

15 (2) Using realistic sample testing data similar 

16 to what would be used by law enforcement in crimi17 nal investigations in performing such testing, includ18 ing incomplete and contaminated samples. 

19 (3) Using testing data that represents diversity 

20 of racial, ethnic, and gender identities and intersec21 tions of these identities in performing such testing. 

22 (4) Using testing data that tests the limits of 

23 the software and demonstrates the boundaries of re24 liability described in the performance measures deVerDate Sep 11 2014 19:46 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2438.IH H2438

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1 fined in the Computational Forensic Algorithm Test2 ing Standards in performing such testing. 

3 (5) Publishing the results of testing the soft4 ware online including results under conditions speci5 fied in the testing standards and across diversity of 

6 racial, ethnic, and gender identities and intersections 

7 of these identities in a publicly available format. 

8 (e) TESTING FREQUENCY.—Retesting shall be con9 ducted when a material change is made to the software 

10 that impacts its performance and may affect its outputs. 

11 The Director shall establish requirements for determining 

12 whether changes are material or nonmaterial. 

13 (f) USE OF COMPUTATIONAL FORENSIC SOFT14 WARE.—Any results or reports resulting from analysis by 

15 computational forensic software shall be provided to the 

16 defendant, and the defendant shall be accorded access to 

17 both an executable copy of and the source code for the 

18 version of the computational forensic software—as well as 

19 earlier versions of the software, necessary instructions for 

20 use and interpretation of the results, and relevant files and 

21 data—used for analysis in the case and suitable for testing 

22 purposes. Such a report on the results shall include— 

23 (1) the name of the company that developed the 

24 software; 

25 (2) the name of the lab where test was run; 


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1 (3) the version of the software that was used; 

2 (4) the dates of the most recent changes to the 

3 software and record of changes made, including any 

4 bugs found in the software and what was done to 

5 address those bugs; 

6 (5) documentation of procedures followed based 

7 on procedures outlined in internal validation; 

8 (6) documentation of conditions under which 

9 software was used relative to the conditions under 

10 which software was tested; and 

11 (7) any other information specified by the Di12 rector of the National Institute of Standards and 

13 Technology in the Computational Forensic Algo14 rithm Testing Standards. 

15 (g) INADMISSIBILITY OF CERTAIN EVIDENCE.—In 

16 any criminal case, evidence that is the result of analysis 

17 by computational forensic software is admissible only if— 

18 (1) the computational forensic software used 

19 has been submitted to the Computational Forensic 

20 Algorithm Testing Program of the Director of the 

21 National Institute of Standards and Technology and 

22 there have been no material changes to that software 

23 since it was last tested; and 

24 (2) the developers and users of the computa25 tional forensic software agree to waive any and all 


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1 legal claims against the defense or any member of 

2 its team for the purposes of the defense analyzing or 

3 testing the computational forensic software. 

4 (h) DEFINITIONS.—In this Act: 

5 (1) COMPUTATIONAL FORENSIC SOFTWARE.— 

6 The term ‘‘computational forensic software’’ means 

7 software that relies on an automated or semiauto8 mated computational process, including one derived 

9 from machine learning, statistics, or other data proc10 essing or artificial intelligence techniques, to process, 

11 analyze, or interpret evidence. 

12 (2) MATERIAL CHANGE.—The term ‘‘material 

13 change’’ means an update to computational forensic 

14 software that may affect the performance measures 

15 defined in the Computational Forensic Algorithm 

16 Testing Standards or the use or output of the soft17 ware. 

18 (3) NONMATERIAL CHANGE.—The term ‘‘non19 material change’’ means an update to computational 

20 forensic software that does not affect the perform21 ance measures, use, or output of the software. 

Æ 


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