Title: Facial Recognition Technology Warrant Act of 2019
Policy area: Crime and Law Enforcement

Summary:
Facial Recognition Technology Warrant Act of 2019
This bill prohibits, subject to certain exceptions, an officer or employee of a federal agency from using facial recognition technology to engage in ongoing surveillance of one or more individuals unless such efforts support a law enforcement activity for which an appropriate court order has been obtained. It also sets out requirements related to these court orders and testing procedures for facial recognition technology systems used by federal agencies.
An individual who has been the subject of ongoing surveillance in violation of this bill may move to suppress information obtained by the surveillance in court, administrative, or similar proceedings.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2878 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 2878

To limit the use of facial recognition technology by Federal agencies, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 14, 2019

  Mr. Coons (for himself and Mr. Lee) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To limit the use of facial recognition technology by Federal agencies, 
                        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 ``Facial Recognition Technology 
Warrant Act of 2019''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Agency.--The term ``agency'' has the meaning given the 
        term in section 551 of title 5, United States Code.
            (2) Covered court order.--The term ``covered court order'' 
        means a court order obtained in accordance with rule 41 of the 
        Federal Rules of Criminal Procedure and in connection with the 
        investigation of an offense for which an order could be sought 
        under section 2516 of title 18, United States Code.
            (3) Facial recognition technology.--The term ``facial 
        recognition technology'' means technology that analyzes facial 
        features and is used for the unique personal identification of 
        individuals in still or video images.
            (4) Ongoing surveillance.--The term ``ongoing 
        surveillance''--
                    (A) means the utilization of facial recognition 
                technology to engage in a sustained effort to track the 
                physical movements of an identified individual through 
                1 or more public places where such movements occur over 
                a period of time greater than 72 hours, whether in real 
                time or through application of such technology to 
                historical records; and
                    (B) does not include instances where facial 
                recognition technology is utilized for a single 
                identification or attempted identification of an 
                individual, if no subsequent attempt is made to track 
                that individual's movement in real time or through the 
                use of historical records after the individual has been 
                identified.

SEC. 3. LIMITATION ON USE OF FACIAL RECOGNITION TECHNOLOGY.

    (a) In General.--Subject to subsection (b), an officer or employee 
of an agency may not use facial recognition technology to engage in 
ongoing surveillance of an individual or group of individuals in a 
public space, unless--
            (1) the use of the facial recognition technology is in 
        support of a law enforcement activity; and
            (2)(A) a covered court order has been obtained to allow the 
        use of facial recognition technology for ongoing surveillance 
        of the individual or group of individuals; or
            (B) an investigative or law enforcement officer--
                    (i) reasonably determines that exigent 
                circumstances and compelling law enforcement needs make 
                it impractical to obtain a covered court order;
                    (ii) reasonably determines that there are grounds 
                for which a covered court order could be obtained under 
                subparagraph (A); and
                    (iii) causes an application for a covered court 
                order to be made in accordance with subparagraph (A) 
                not later than 48 hours after the use of facial 
                recognition technology to engage in ongoing 
                surveillance.
    (b) Requirement.--If an application for a covered court order made 
under subsection (a)(2)(B) is denied, the use of facial recognition 
technology shall terminate at the time of the denial.
    (c) Duration of Orders.--
            (1) In general.--Subject to paragraph (2), a covered court 
        order may only authorize ongoing surveillance until the date on 
        which the objective of the order is satisfied, except that such 
        order may not authorize ongoing surveillance for a period of 
        longer than 30 days.
            (2) Requirement.--The 30-day period described in paragraph 
        (1) shall begin on the earlier of--
                    (A) the date on which the agency begins to use 
                facial recognition technology; or
                    (B) the date that is 10 days after the court order 
                is issued.
            (3) Extension.--A court may grant an extension of the 30-
        day period described in paragraph (1) if the extension 
        satisfies the requirements of subsection (a)(2)(A) and such 
        extension may last not longer than 30 days.
    (d) Minimization Requirement.--Any use of facial recognition 
technology pursuant to a covered court order shall be conducted in such 
a way as to minimize the acquisition, retention, and dissemination of 
information about the individuals other than those for whom there was 
probable cause to seek the covered court order obtained under 
subsection (a)(2)(A).
    (e) Motion To Suppress.--
            (1) In general.--Except as provided in paragraph (2), any 
        aggrieved individual who has been the subject of ongoing 
        surveillance using facial recognition technology, in any trial, 
        hearing, or proceeding in or before any court, department, 
        officer, agency, regulatory body, or other authority of the 
        United States, a State, or a political subdivision thereof, may 
        move to suppress information directly obtained through the use 
        of facial recognition technology, or evidence derived 
        therefrom, in violation of this section, on the grounds that--
                    (A) the information was unlawfully obtained;
                    (B) the order of authorization or approval under 
                which the information was obtained is insufficient on 
                its face; or
                    (C) the use of facial recognition technology was 
                not used in conformity with the order of authorization 
                or approval.
            (2) Exception.--Evidence obtained through the use of facial 
        recognition technology in violation of this section shall not 
        be suppressed under paragraph (1) if the evidence was acquired 
        by an officer or an employee of an agency with an objectively 
        reasonable belief that the use of facial recognition technology 
        was in compliance with this section.
            (3) Requirement.--A motion described in paragraph (1) shall 
        be made before the trial, hearing, or proceeding unless there 
        was no opportunity to make such motion or the individual was 
        not aware of the grounds of the motion. If the motion is 
        granted, the information directly obtained through the use of 
        facial recognition technology, or evidence derived therefrom, 
        shall be treated as having been obtained in violation of this 
        section.
            (4) Inspection of information.--The judge, upon the filing 
        of a motion under this subsection by the aggrieved individual, 
        may in his or her discretion make available to the aggrieved 
        individual or counsel of the aggrieved individual for 
        inspection such portions of the information or evidence derived 
        therefrom as the judge determines to be in the interests of 
        justice.
            (5) Appeal.--In addition to any other right to appeal, the 
        United States shall have the right to appeal from an order 
        granting a motion to suppress made under this subsection, or 
        the denial of an application for an order of approval, if the 
        United States attorney shall certify to the judge or other 
        official granting such motion or denying such application that 
        the appeal is not taken for purposes of delay. Such appeal 
        shall be taken within 30 days after the date the order was 
        entered and shall be diligently prosecuted.
            (6) Limitation.--The remedies and sanctions described in 
        this subsection with respect to the use of facial recognition 
        technology are the only judicial remedies and sanctions for 
        nonconstitutional violations of this section involving such 
        technology.
    (f) Foreign Intelligence Information.--Nothing in this section 
shall be construed to affect the use of facial recognition technology 
to engage in ongoing surveillance connected with the acquisition of 
foreign intelligence information, as defined in section 101(e) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)).

SEC. 4. REPORTS ON GOVERNMENT USE OF FACIAL RECOGNITION TECHNOLOGY.

    (a) Report by Judge.--Not later than 30 days after issuance of a 
covered court order under section 3(a)(2)(A) or an extension thereof 
under section 3(c)(3), or the denial of such a warrant or extension, 
the issuing or denying judge shall report to the Administrative Office 
of the United States Courts--
            (1) the fact that a warrant or extension was applied for;
            (2) the fact that the warrant or extension was granted as 
        applied for, was modified, or was denied;
            (3) the period of time for which the warrant approves the 
        use of facial recognition technology, and the number and 
        duration of any extensions; and
            (4) the offense specified in the warrant or application.
    (b) Reports.--Beginning 1 year after the date of enactment of this 
Act, and not later than September 30 of each year thereafter, the 
Director of the Administrative Office of the United States Courts shall 
transmit to the Committee on the Judiciary of the Senate and the 
Committee on the Judiciary of the House of Representatives, and make 
available to the public, a full and complete report summarizing the 
data required to be filed with the Administrative Office under 
subsection (a), including--
            (1) the number of applications for covered court orders and 
        extensions authorizing delayed notice;
            (2) the number of covered court orders and extensions 
        granted or denied during the preceding fiscal year;
            (3) for each covered court order or extension granted--
                    (A) the period of time for which the warrant 
                approves the use of facial recognition technology, and 
                the number and duration of any extensions;
                    (B) the offense specified in the covered court 
                order or application, or extension of an order;
                    (C) the identity of the applying investigative or 
                law enforcement officer and agency making the 
                application and the person authorizing the application; 
                and
                    (D) the nature of the facilities or cameras from 
                which the data analyzed by facial recognition 
                technology came from;
            (4) a general description of the identifications made under 
        a covered court order or extension, including--
                    (A) the approximate nature and frequency of use of 
                the facial recognition technology;
                    (B) the approximate number of persons who were 
                subjected to analysis using the facial recognition 
                technology; and
                    (C) the approximate nature, amount, and cost of the 
                manpower and other resources during the use of the 
                facial recognition technology; and
            (5) the number of misidentifications, including any arrest 
        of an individual that does not result in charges being entered 
        against the individual, made based upon information directly 
        obtained through the use of facial recognition technology, or 
        evidence derived therefrom.
    (c) Regulations.--The Director of the Administrative Office of the 
United States Courts, in consultation with the Attorney General, may 
issue guidance regarding the content and form of the reports required 
to be filed under subsection (a).

SEC. 5. HUMAN REVIEW AND TESTING.

    (a) Human Review of Facial Recognition Technology.--An agency shall 
require a trained officer to examine the output or recommendation of 
any facial recognition system before the agency investigates or 
otherwise interacts with an individual identified by the system in 
connection with a covered court order issued under section 3(a)(2)(A) 
or in connection with an emergency under section 3(a)(2)(B).
    (b) Testing.--The head of each agency, in consultation with the 
Director of the National Institute of Standards and Technology, shall 
establish testing procedures regarding all facial recognition 
technology systems used by the agency, including a process to--
            (1) periodically undertake independent tests of the 
        performance of the system in typical operational conditions;
            (2) identify relative performance across different 
        subpopulations, including error rates when the system is tested 
        across subpopulations, alone and in combination with, different 
        skin tones, ages, and genders; and
            (3) review such tests and take action to improve the 
        accuracy of the system across subpopulations upon a finding 
        indicating there are disparate error rates when the system is 
        tested across subpopulations.
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