II 117th CONGRESS 2d Session S. 5351 IN THE SENATE OF THE UNITED STATES December 21, 2022 Mr. Portman introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To clarify the applicability of civil rights law to algorithmic decisions, and for other purposes.

1. Short title This Act may be cited as the Stopping Unlawful Negative Machine Impacts through National Evaluation Act . 2. Definitions In this Act: (1) Artificial intelligence The term artificial intelligence has the meaning given the term in section 238(g) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 ( 10 U.S.C. 2358 note). (2) Artificial intelligence system The term artificial intelligence system means any data system, software, application, tool, or utility that operates in whole or in part using dynamic or static machine learning algorithms or other forms of artificial intelligence, including a data system, software, application, tool, or utility— (A) that is established primarily for the purpose of researching, developing, or implementing artificial intelligence technology; and (B) for which the artificial intelligence capability is integrated into another system or business process, operational activity, or technology system. (3) Covered civil rights law The term covered civil rights law means— (A) the Civil Rights Act of 1964 ( 42 U.S.C. 2000a et seq. ), the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 621 et seq. ), the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq. ), title V of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 et seq. ), section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d) ), title II of the Genetic Information Nondiscrimination Act of 2008 ( 42 U.S.C. 2000ff et seq. ), subchapter II of chapter 43 of title 38, United States Code, title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. ), the Age Discrimination Act of 1975 ( 42 U.S.C. 6101 et seq. ), and any provision of Federal, State, or local law, including the Constitution of the United States, that prohibits discrimination in public or private employment (including contracting), or in the provision of a program or activity or accommodation, on the basis of a protected class; and (B) the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ), the Voting Rights Act of 1965 ( 52 U.S.C. 10301 et seq. ), and any provision of Federal, State, or local law, including the Constitution of the United States, that prohibits discrimination concerning legal status or a legal right on the basis of a protected class. (4) Covered entity The term covered entity means any person (including a partnership, corporation, Federal, State, or local agency, or entity) that is subject to a covered civil rights law. (5) Director The term Director means the Director of the National Institute for Standards and Technology. 3. Applicability of civil rights laws to decisions made by or augmented by algorithms (a) Purpose The purpose of this section to remove any doubt about the liability described in subsection (b) of a covered entity described in subsection (b). (b) Liability A covered entity that uses artificial intelligence to make or inform a decision that has an impact on a person that is addressed by a covered civil rights law, including whether to provide a program or activity or accommodation to a person, shall be liable for a claim of discrimination under the corresponding covered civil rights law in the same manner and to the same extent (including being liable pursuant to that law’s standard of culpability) as if the covered entity had made such decision without the use of artificial intelligence. 4. Requirement for National Institute of Standards and Technology program of technology evaluations of bias and discrimination in artificial intelligence systems (a) Establishment of technology evaluation program Not later than 1 year after the date of the enactment of this Act, the Director shall establish a program for conducting technology evaluations to assess and assist in mitigating bias and discrimination in artificial intelligence systems of covered entities with respect to race, sex, age, disability, and other classes or characteristics protected by covered civil rights laws. In establishing such program, the Director shall ensure that such evaluations effectively approximate real-world applications of artificial intelligence systems. (b) Priority evaluation areas In carrying out the program required under subsection (a), the Director shall prioritize the conduct of technology evaluations to mitigate bias in— (1) the applications identified as high risk by previous technology evaluations and strategy documents; (2) speech recognition and synthesis; (3) recommendation systems, including for financial and criminal justice applications; (4) sensitive image recognition technology, including facial and gait recognition systems; and (5) any other artificial intelligence use case that poses a high risk for discrimination based on classes or characteristics protected by covered civil rights laws, such as image and video synthesis, text generation, and conversation and information systems. (c) Participation In designing technology evaluations under subsection (a), the Director shall ensure the participation of any industry and nongovernmental experts and entities in the fields of artificial intelligence, machine learning, computer science, social sciences, civil rights, and civil liberties seeking to participate in such evaluations. (d) Authorization of appropriations There is authorized to be appropriated to the Director such sums as may be necessary to carry out this section for each of the fiscal years 2023 through 2028. (e) Sunset The program required under subsection (a) shall terminate on December 31, 2028.