[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7394 Introduced in House (IH)]
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118th CONGRESS
2d Session
H. R. 7394
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 15, 2024
Mr. Takano (for himself and Mr. Evans) 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 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 2024''.
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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