I 

116TH CONGRESS 

1ST SESSION H. R. 4368 

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 Standards, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 17, 2019 

Mr. TAKANO 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 Standards, 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 2019’’. 


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1 SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM STAND2 ARDS. 

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 the development and use of computational foren8 sic software, to be known as the Computational Forensic 

9 Algorithm Standards, consistent with the following: 

10 (1) Standards shall include an assessment for 

11 the potential for disparate impact, on the basis of 

12 race, ethnicity, socioeconomic status, gender, and 

13 other demographic features, in the development and 

14 use of the computational forensic software. 

15 (2) Standards shall address— 

16 (A)(i) the underlying scientific principles 

17 and methods implemented in computational fo18 rensic software; and 

19 (ii) if, in the case of a particular method, 

20 there are insufficient studies supporting its use, 

21 what studies the Director has conducted to do 

22 so, and the results of such studies; 

23 (B) requirements for testing the software 

24 including the conditions under which it needs to 

25 be tested, types of testing data to be used, test26 ing environments, testing methodologies, and 


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1 system performance statistics required to be re2 ported including— 

3 (i) accuracy, including false positive 

4 and false negative error rates; 

5 (ii) precision; 

6 (iii) reproducibility; 

7 (iv) robustness; and 

8 (v) sensitivity; 

9 (C) requirements for publicly available doc10 umentation by developers of computational fo11 rensic software of the purpose and function of 

12 the software, the development process, including 

13 source and description of training data, and in14 ternal testing methodology and results, includ15 ing source and description of testing data; 

16 (D) requirements for laboratories and any 

17 other entities using computational forensic soft18 ware to validate it for use, including to specify 

19 the conditions under which the lab has vali20 dated it for their use, requirements for what in21 formation needs to be included in a public re22 port on the lab or other entity’s validation, and 

23 requirements for internal validation updates 

24 when there are material changes to the soft25 ware; and 


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1 (E) requirements for reports provided to 

2 defendants by prosecution produced docu3 menting the use and results of computational 

4 forensic software in individual cases. 

5 (3) Standards shall be issued as a rulemaking 

6 under section 553 of title 5, United States Code. 

7 (4) The Director shall consult with outside ex8 perts in forensic science, bioethics, algorithmic dis9 crimination, data privacy, racial justice, criminal jus10 tice reform, exonerations, and other relevant areas 

11 of expertise identified through public input. 

12 (b) PROTECTION OF TRADE SECRETS.—The Federal 

13 Rules of Evidence are amended by adding at the end of 

14 article V the following: 

15 ‘‘Rule 503. PROTECTION OF TRADE SECRETS IN A CRIMINAL 

16 PROCEEDING. 

17 ‘‘In any criminal case, trade secrets protections do 

18 not apply when defendants would otherwise be entitled to 

19 obtain evidence.’’. 

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

22 or crime laboratory providing services to a Federal agency 

23 using computational forensic software may use only soft24 ware that has been tested under the National Institute of 

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1 gorithm Testing Program and shall conduct an internal 

2 validation according to the requirements outlined in the 

3 Computational Forensic Algorithm Standards and make 

4 the results publicly available. The internal validation shall 

5 be updated when there is a material change in the soft6 ware that triggers a retesting by the Computational Fo7 rensic Algorithm Testing Program. 

8 (d) REQUIREMENTS FOR TESTING.—The Director of 

9 the National Institute of Standards and Technology shall 

10 establish a Computational Forensic Algorithm Testing 

11 Program, whose activities include the following: 

12 (1) Testing individual software programs using 

13 the testing requirements established in the Computa14 tional Forensic Algorithm 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 04:16 Sep 19, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4368.IH H4368

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1 fined in the Computational Forensic Algorithm 

2 Standards in performing such testing. 

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

6 ethnic, and gender identities and intersections of 

7 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) DISCOVERY IN CRIMINAL CASES.—Rule 16 of the 

14 Federal Rules of Criminal Procedure is amended— 

15 (1) in subdivision (a)(1), by adding at the end 

16 the following: 

17 ‘‘(H) Use of Computational Forensic Soft18 ware. Any results or reports resulting from 

19 analysis by computational forensic software 

20 shall be provided to the defendant, and the de21 fendant shall be accorded access to an execut22 able copy of the version of the computational 

23 forensic software, as well as earlier versions of 

24 the software, necessary instructions for use and 

25 interpretation of the results, and relevant files 


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1 and data, used for analysis in the case and suit2 able for testing purposes. Such a report on the 

3 results shall include— 

4 ‘‘(i) the name of the company that de5 veloped the software; 

6 ‘‘(ii) the name of the lab where test 

7 was run; 

8 ‘‘(iii) the version of the software that 

9 was used; 

10 ‘‘(iv) the dates of the most recent 

11 changes to the software and record of 

12 changes made, including any bugs found in 

13 the software and what was done to address 

14 those bugs; 

15 ‘‘(v) documentation of procedures fol16 lowed based on procedures outlined in in17 ternal validation; 

18 ‘‘(vi) documentation of conditions 

19 under which software was used relative to 

20 the conditions under which software was 

21 tested; and 

22 ‘‘(vii) any other information specified 

23 by the Director of the National Institute of 

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1 putational Forensic Algorithm Stand2 ards.’’. 

3 (g) INADMISSIBILITY OF CERTAIN EVIDENCE.—The 

4 Federal Rules of Evidence are amended by adding at the 

5 end of article I the following: 

6 ‘‘Rule 107. INADMISSIBILITY OF CERTAIN EVIDENCE THAT 

7 IS THE RESULT OF ANALYSIS BY COMPUTA8 TIONAL FORENSIC SOFTWARE. 

9 ‘‘In any criminal case, evidence that is the result of 

10 analysis by computational forensic software is admissible 

11 only if— 

12 ‘‘(1) the computational forensic software used 

13 has been submitted to the Computational Forensic 

14 Algorithm Testing Program of the Director of the 

15 National Institute of Standards and Technology and 

16 there have been no material changes to that software 

17 since it was last tested; and 

18 ‘‘(2) the developers and users of the computa19 tional forensic software agree to waive any and all 

20 legal claims against the defense or any member of 

21 its team for the purposes of the defense analyzing or 

22 testing the computational forensic software.’’. 

23 (h) DEFINITIONS.—In this Act: 

24 (1) COMPUTATIONAL FORENSIC SOFTWARE.— 

25 The term ‘‘computational forensic software’’ means 


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1 software that relies on an automated or semiauto2 mated computational process, including one derived 

3 from machine learning, statistics, or other data proc4 essing or artificial intelligence techniques, to process, 

5 analyze, or interpret evidence. 

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

7 change’’ means an update to computational forensic 

8 software that may affect the performance measures 

9 defined in the Computational Forensic Algorithm 

10 Standards or the use or output of the software. 

11 (3) NONMATERIAL CHANGE.—The term ‘‘non12 material change’’ means an update to computational 

13 forensic software that does not affect the perform14 ance measures, use, or output of the software. 

Æ 


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