Title: Justice in Forensic Algorithms Act of 2019
Policy area: Crime and Law Enforcement

Summary:
Justice in Forensic Algorithms Act of 2019
This bill establishes federal standards and procedures for the use of computational forensic software. (Computational forensic software refers to software that relies on an automated or semiautomated computational process to process, analyze, or interpret evidence.) It also prohibits the use of trade secret protections to prevent criminal defendants from accessing evidence.
First, the National Institute of Standards and Technology (NIST) must establish the Computational Forensic Algorithm Standards for the development and use of computational forensic software. These standards must, among other things, address requirements related to software testing and reporting to criminal defendants on the use and results of software in their cases.
Further, NIST must establish the Computational Forensic Algorithm Testing Program. The testing program must, among other things, test individual software programs using NIST standards. Federal law enforcement agencies and related crime laboratories must comply with these NIST standards and testing requirements in their use of computational forensic software.
In addition, criminal defendants must receive information resulting from analysis by computational forensic software, including access to the software for testing purposes.
Evidence resulting from computational forensic software is only admissible in a criminal case if (1) the software was submitted to the NIST testing program, and (2) the software developers and users waive their legal claims against the defense for the purposes of the defense analyzing or testing such software.
The bill also prohibits the use of trade secret protections when a criminal defendant would otherwise be entitled to obtain evidence.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4368 Introduced in House (IH)]

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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.

    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 2019''.

SEC. 2. COMPUTATIONAL FORENSIC ALGORITHM 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 the development and use of computational 
forensic software, to be known as the Computational Forensic Algorithm 
Standards, consistent with the following:
            (1) Standards shall include an assessment for the potential 
        for disparate impact, on the basis of race, ethnicity, 
        socioeconomic status, gender, and other demographic features, 
        in the development and use of the computational forensic 
        software.
            (2) Standards shall address--
                    (A)(i) the underlying scientific principles and 
                methods implemented in computational forensic software; 
                and
                    (ii) if, in the case of a particular method, there 
                are insufficient studies supporting its use, what 
                studies the Director has conducted to do so, and the 
                results of such studies;
                    (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; and
                            (v) sensitivity;
                    (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 training data, 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 in individual cases.
            (3) 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.--The Federal Rules of Evidence are 
amended by adding at the end of article V the following:

``RULE 503. PROTECTION OF TRADE SECRETS IN A CRIMINAL PROCEEDING.

    ``In any criminal case, trade secrets protections do not apply when 
defendants would otherwise be entitled to obtain evidence.''.
    (c) Requirements for Federal Use of Forensic Algorithms.--Any 
Federal law enforcement agency or crime laboratory providing services 
to a Federal 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 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) Requirements for Testing.--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 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 Standards in performing such 
        testing.
            (5) Publishing the results of testing the software online 
        including results under conditions specified in the 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) Discovery in Criminal Cases.--Rule 16 of the Federal Rules of 
Criminal Procedure is amended--
            (1) in subdivision (a)(1), by adding at the end the 
        following:
                    ``(H) 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 an executable copy of 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--
                            ``(i) the name of the company that 
                        developed the software;
                            ``(ii) the name of the lab where test was 
                        run;
                            ``(iii) the version of the software that 
                        was used;
                            ``(iv) 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;
                            ``(v) documentation of procedures followed 
                        based on procedures outlined in internal 
                        validation;
                            ``(vi) documentation of conditions under 
                        which software was used relative to the 
                        conditions under which software was tested; and
                            ``(vii) any other information specified by 
                        the Director of the National Institute of 
                        Standards and Technology in the Computational 
                        Forensic Algorithm Standards.''.
    (g) Inadmissibility of Certain Evidence.--The Federal Rules of 
Evidence are amended by adding at the end of article I the following:

``RULE 107. INADMISSIBILITY OF CERTAIN EVIDENCE THAT IS THE RESULT OF 
              ANALYSIS BY COMPUTATIONAL FORENSIC SOFTWARE.

    ``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 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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