Justice in Forensic Algorithms Act of 2021
Bill: H.R.2438 | Sponsor: Rep. Takano, Mark (D-CA)
Policy area: Crime and Law Enforcement

Summary:
Justice in Forensic Algorithms Act of 2021
This bill establishes a federal framework to govern the use of computational forensic software. The term computational forensic software means software that relies on an automated computational process to assess evidence in a criminal investigation (e.g., facial recognition technology).
The framework contains various elements, including the following:

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Justice in Forensic Algorithms Act 
of 2021''.

SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM TESTING STANDARDS.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Director of the National Institute of Standards and 
Technology shall establish a program to provide for creation and 
maintenance of standards for testing computational forensic software, 
to be known as the Computational Forensic Algorithm Testing Standards, 
consistent with the following:
            (1) Testing standards shall include an assessment for the 
        potential for disparate impact, on the basis of race, 
        ethnicity, socioeconomic status, gender, and other demographic 
        features.
            (2) Testing standards shall address--
                    (A) the underlying scientific principles and 
                methods implemented in computational forensic software; 
                and
                    (B) requirements for testing the software including 
                the conditions under which it needs to be tested, types 
                of testing data to be used, testing environments, 
                testing methodologies, and system performance 
                statistics required to be reported including--
                            (i) accuracy, including false positive and 
                        false negative error rates;
                            (ii) precision;
                            (iii) reproducibility;
                            (iv) robustness;
                            (v) sensitivity; and
                            (vi) system failure rates;
                    (C) requirements for publicly available 
                documentation by developers of computational forensic 
                software of the purpose and function of the software, 
                the development process, including source and 
                description of data used to develop the tool, and 
                internal testing methodology and results, including 
                source and description of testing data;
                    (D) requirements for laboratories and any other 
                entities using computational forensic software to 
                validate it for use, including to specify the 
                conditions under which the lab has validated it for 
                their use, requirements for what information needs to 
                be included in a public report on the lab or other 
                entity's validation, and requirements for internal 
                validation updates when there are material changes to 
                the software; and
                    (E) requirements for reports provided to defendants 
                by prosecution produced documenting the use and results 
                of computational forensic software used in individual 
                cases.
            (3) Testing standards shall be issued as a rulemaking under 
        section 553 of title 5, United States Code.
            (4) The Director shall consult with outside experts in 
        forensic science, bioethics, algorithmic discrimination, data 
        privacy, racial justice, criminal justice reform, exonerations, 
        and other relevant areas of expertise identified through public 
        input.
    (b) Protection of Trade Secrets.--
            (1) There shall be no trade secret evidentiary privilege to 
        withhold relevant evidence in criminal proceedings in the 
        United States courts.
            (2) Nothing in this section may be construed to alter the 
        standard operation of the Federal Rules of Criminal Procedure, 
        or the Federal Rules of Evidence, as such rules would function 
        in the absence of an evidentiary privilege.
    (c) Requirements for Federal Use of Forensic Algorithms.--Any 
Federal law enforcement agency or crime laboratory providing services 
to a Federal law enforcement agency using computational forensic 
software may use only software that has been tested under the National 
Institute of Standards and Technology's Computational Forensic 
Algorithm Testing Program and shall conduct an internal validation 
according to the requirements outlined in the Computational Forensic 
Algorithm Testing Standards and make the results publicly available. 
The internal validation shall be updated when there is a material 
change in the software that triggers a retesting by the Computational 
Forensic Algorithm Testing Program.
    (d) Testing Program.--The Director of the National Institute of 
Standards and Technology shall establish a Computational Forensic 
Algorithm Testing Program, whose activities include the following:
            (1) Testing individual software programs using the testing 
        requirements established in the Computational Forensic 
        Algorithm Testing Standards.
            (2) Using realistic sample testing data similar to what 
        would be used by law enforcement in criminal investigations in 
        performing such testing, including incomplete and contaminated 
        samples.
            (3) Using testing data that represents diversity of racial, 
        ethnic, and gender identities and intersections of these 
        identities in performing such testing.
            (4) Using testing data that tests the limits of the 
        software and demonstrates the boundaries of reliability 
        described in the performance measures defined in the 
        Computational Forensic Algorithm Testing Standards in 
        performing such testing.
            (5) Publishing the results of testing the software online 
        including results under conditions specified in the testing 
        standards and across diversity of racial, ethnic, and gender 
        identities and intersections of these identities in a publicly 
        available format.
    (e) Testing Frequency.--Retesting shall be conducted when a 
material change is made to the software that impacts its performance 
and may affect its outputs. The Director shall establish requirements 
for determining whether changes are material or nonmaterial.
    (f) Use of Computational Forensic Software.--Any results or reports 
resulting from analysis by computational forensic software shall be 
provided to the defendant, and the defendant shall be accorded access 
to both an executable copy of and the source code for the version of 
the computational forensic software--as well as earlier versions of the 
software, necessary instructions for use and interpretation of the 
results, and relevant files and data--used for analysis in the case and 
suitable for testing purposes. Such a report on the results shall 
include--
            (1) the name of the company that developed the software;
            (2) the name of the lab where test was run;
            (3) the version of the software that was used;
            (4) the dates of the most recent changes to the software 
        and record of changes made, including any bugs found in the 
        software and what was done to address those bugs;
            (5) documentation of procedures followed based on 
        procedures outlined in internal validation;
            (6) documentation of conditions under which software was 
        used relative to the conditions under which software was 
        tested; and
            (7) any other information specified by the Director of the 
        National Institute of Standards and Technology in the 
        Computational Forensic Algorithm Testing Standards.
    (g) Inadmissibility of Certain Evidence.--In any criminal case, 
evidence that is the result of analysis by computational forensic 
software is admissible only if--
            (1) the computational forensic software used has been 
        submitted to the Computational Forensic Algorithm Testing 
        Program of the Director of the National Institute of Standards 
        and Technology and there have been no material changes to that 
        software since it was last tested; and
            (2) the developers and users of the computational forensic 
        software agree to waive any and all legal claims against the 
        defense or any member of its team for the purposes of the 
        defense analyzing or testing the computational forensic 
        software.
    (h) Definitions.--In this Act:
            (1) Computational forensic software.--The term 
        ``computational forensic software'' means software that relies 
        on an automated or semiautomated computational process, 
        including one derived from machine learning, statistics, or 
        other data processing or artificial intelligence techniques, to 
        process, analyze, or interpret evidence.
            (2) Material change.--The term ``material change'' means an 
        update to computational forensic software that may affect the 
        performance measures defined in the Computational Forensic 
        Algorithm Testing Standards or the use or output of the 
        software.
            (3) Nonmaterial change.--The term ``nonmaterial change'' 
        means an update to computational forensic software that does 
        not affect the performance measures, use, or output of the 
        software.
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