ALB20131 S.L.C. 116TH CONGRESS 2D SESSION S. ll To create a moratorium on the government use of facial recognition technology until a Commission recommends the appropriate guidelines and limitation for use of facial recognition technology. IN THE SENATE OF THE UNITED STATES llllllllll Mr. MERKLEY (for himself and Mr. BOOKER) introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To create a moratorium on the government use of facial recognition technology until a Commission recommends the appropriate guidelines and limitation for use of facial recognition technology. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Ethical Use of Facial 5 Recognition Act’’. 6 7 SEC. 2. FINDINGS. Congress finds the following: B86 K2 8MV ALB20131 S.L.C. 2 1 (1) Facial recognition is a technology that is in- 2 creasingly being used and marketed to law enforce- 3 ment agencies across the United States without ap- 4 propriate debate or consideration of its impacts. 5 (2) Facial recognition has been shown to dis- 6 proportionately impact communities of color, activ- 7 ists, immigrants, and other groups that are often al- 8 ready unjustly targeted. 9 (3) Facial recognition has a history of being in- 10 accurate, particularly for women, young people, Afri- 11 can Americans, and other ethnic groups. 12 (4) There is evidence that facial recognition has 13 been used at protests and rallies, which could chill 14 speech. 15 (5) It is critical that facial recognition not be 16 used to suppress First Amendment related activities, 17 violate privacy, or otherwise adversely impact indi- 18 viduals’ civil rights and civil liberties. 19 SEC. 3. DEFINITIONS. 20 In this Act: 21 (1) COMMISSION.—The term ‘‘Commission’’ 22 means the congressional commission established 23 under section 6. B86 K2 8MV ALB20131 S.L.C. 3 1 (2) COVERED GOVERNMENT OFFICIAL.— The 2 term ‘‘covered government official’’ means any offi- 3 cer, employee, or contractor of a Federal agency. 4 (3) FACIAL RECOGNITION TECHNOLOGY.—The 5 term ‘‘facial recognition technology’’ means the 6 automated or semi-automated process that assists in 7 identifying or verifying an individual based on the 8 characteristics of an individual’s face. 9 (4) FEDERAL AGENCY.—The term ‘‘Federal 10 agency’’ has the meaning given the term ‘‘agency’’ 11 in section 551 of title 5, United States Code. 12 (5) IMPLEMENTATION 13 mentation bill’’ means a bill— 14 15 prepared under section 6(e)(1)(A); and (B) introduced under section 6(e)(1)(B). SEC. 4. LIMITS ON USE OF FACIAL RECOGNITION TECH- 18 19 term ‘‘imple- (A) consisting of the legislative language 16 17 BILL.—The NOLOGY. A covered government official may not set up any 20 camera to be used in connection with facial recognition 21 technology, access or use information obtained from facial 22 recognition technology, or import facial recognition tech23 nology to identify an individual in the United States with24 out a warrant until the date on which Congress enacts 25 legislation implementing the guidelines for use of facial B86 K2 8MV ALB20131 S.L.C. 4 1 recognition technology established by the Commission 2 under section 6. 3 4 SEC. 5. ENFORCEMENT. (a) CIVIL ACTION.—Any person aggrieved by a viola- 5 tion of section 4 by a covered government official may 6 bring a civil action for injunctive or declaratory relief in 7 the appropriate district court of the United States. 8 (b) LIMITATION ON FEDERAL GRANTS.—Notwith- 9 standing any other provision of law, no Federal funds may 10 be used by a State or unit of local government to invest 11 in facial recognition software, purchase facial recognition 12 technology services, or acquire images for use in facial rec13 ognition technology systems. 14 15 SEC. 6. COMMISSION. (a) IN GENERAL.—There is established a congres- 16 sional commission to consider and create guidelines for the 17 use of facial recognition technology in the United States. 18 19 20 (b) MEMBERSHIP.— (1) IN GENERAL.—The Commission shall be composed of 13 members, of whom— 21 (A) 1 member shall be appointed by the 22 President, and such member shall serve as the 23 Chairperson of the Commission; 24 25 (B) 3 members shall be appointed by the Majority Leader of the Senate; B86 K2 8MV ALB20131 S.L.C. 5 1 2 (C) 3 members shall be appointed by the Minority Leader of the Senate; 3 4 (D) 3 members shall be appointed by the Speaker of the House of Representatives; and 5 (E) 3 member shall be appointed by the 6 Minority Leader of the House of Representa- 7 tives. 8 (2) EXPERTISE 9 (A) IN OF MEMBERS.— GENERAL.—Members appointed 10 under paragraph (1) shall represent each of the 11 following groups: 12 (i) Law enforcement and immigration 13 enforcement officials. 14 (ii) Privacy and technology experts. 15 (iii) Communities most impacted neg- 16 atively by the use of facial recognition 17 technology. 18 (B) REQUIREMENT.—Not fewer than 7 19 members of the Commission shall be represent- 20 atives of the group described in subparagraph 21 (A)(iii). 22 (c) DUTIES.—The Commission shall— 23 (1) consider and create guidelines and limita- 24 tions for the use of facial recognition technology in B86 K2 8MV ALB20131 S.L.C. 6 1 the United States to ensure that the use of such 2 technology does not— 3 (A) create a constant state of surveillance 4 of individuals in the United States that does 5 not allow for a level of reasonable anonymity; 6 (B) produce biased or inaccurate results; 7 (C) disproportionately impact a racial, eth- 8 nic, national origin group, or other protected 9 class of individuals; 10 (D) impinge on the privacy, free speech, or 11 due process rights of individuals in the United 12 States; or 13 (E) limit the ability of law enforcement of- 14 ficers to track down missing and exploited chil- 15 dren and trafficked individuals; and 16 (2) consider and recommend the appropriate 17 rules for governing the use and limitations on both 18 government and commercial use of facial recognition 19 technology, including— 20 (A) whether there are appropriate uses for 21 facial recognition technology without a warrant 22 by government officials in a private or public 23 space; 24 (B) what are the appropriate uses and lim- 25 itations for commercial use, including what B86 K2 8MV ALB20131 S.L.C. 7 1 rights individuals should have relating to the 2 data produced and the use of their likeness in 3 facial recognition technology; 4 (C) in what circumstances, if any, govern- 5 ment officials should be permitted to use facial 6 recognition without a warrant; 7 (D) what rules should govern how and 8 where images may be acquired through facial 9 recognition technology, taking into account indi- 10 viduals’ reasonable expectations of privacy or 11 anonymity; 12 (E) in what situations individuals should 13 be able to opt out or required to opt in to the 14 use of facial recognition technology; 15 (F) what safeguards need to be put in 16 place to prevent abuse of facial recognition 17 technology; 18 19 (G) what are appropriate remedies when facial recognition technology is misused; and 20 (H) what rights individuals have relating 21 to the data produced and the use of their like- 22 ness in facial recognition technology. 23 (d) REPORT.—Not later than 18 months after the 24 date of enactment of this Act, the Commission shall sub25 mit a report to Congress that contains— B86 K2 8MV ALB20131 S.L.C. 8 1 2 3 4 5 (1) the guidelines required to be created under subsection (c); (2) recommendations for implementation of such guidelines; and (3) any minority views or recommendations of 6 the Commission. 7 (e) IMPLEMENTATION.— 8 (1) INTRODUCTION.—Not later than 90 days 9 after the date on which the report required under 10 subsection (d) is submitted to Congress— 11 (A) Congress shall prepare legislative lan- 12 guage to implement the recommendations in- 13 cluded in such report; and 14 15 (B) the legislative language prepared under subparagraph (A)— 16 (i) shall be introduced in the Senate 17 (by request) not later than the third day 18 on which the Senate is in session after the 19 date on which the Commission approves 20 the legislative language by the Majority 21 Leader of the Senate or by a Member of 22 the Senate designated by the Majority 23 Leader of the Senate; and 24 (ii) shall be introduced in the House 25 of Representatives (by request) not later B86 K2 8MV ALB20131 S.L.C. 9 1 than the third day on which the House of 2 Representatives is in session after the date 3 on which the Commission approves the leg- 4 islative language by the Majority Leader of 5 the House of Representatives or by a 6 Member of the House of Representatives 7 designated by the Majority Leader of the 8 House of Representatives. 9 10 (2) CONSIDERATION IN THE HOUSE OF REP- RESENTATIVES.— 11 (A) REFERRAL AND REPORTING.—Any 12 committee of the House of Representatives to 13 which an implementation bill is referred shall 14 report it to the House not later 3 after the date 15 on which the implementation bill is introduced 16 in the House of Representatives. If a committee 17 fails to report an implementation bill within 18 that period, it shall be in order to move that the 19 House of Representatives discharge the com- 20 mittee from further consideration of the bill. 21 Such a motion shall not be in order after the 22 last committee authorized to consider the bill 23 reports it to the House of Representatives or 24 after the House of Representatives has disposed 25 of a motion to discharge the bill. The previous B86 K2 8MV ALB20131 S.L.C. 10 1 question shall be considered as ordered on the 2 motion to its adoption without intervening mo- 3 tion except 20 minutes of debate equally divided 4 and controlled by the proponent and an oppo- 5 nent. If such a motion is adopted, the House of 6 Representatives shall proceed immediately to 7 consider the implementation bill in accordance 8 with subparagraphs (B) and (C). A motion to 9 reconsider the vote by which the motion is dis- 10 posed of shall not be in order. 11 (B) PROCEEDING TO CONSIDERATION.— 12 After the last committee authorized to consider 13 an implementation bill reports it to the House 14 of Representatives or has been discharged from 15 its consideration, it shall be in order to move to 16 proceed to consider the implementation bill in 17 the House of Representatives. Such a motion 18 shall not be in order after the House of Rep- 19 resentatives has disposed of a motion to proceed 20 with respect to the implementation bill. The 21 previous question shall be considered as ordered 22 on the motion to its adoption without inter- 23 vening motion. A motion to reconsider the vote 24 by which the motion is disposed of shall not be 25 in order. B86 K2 8MV ALB20131 S.L.C. 11 1 (C) CONSIDERATION.—An implementation 2 bill shall be considered as read. All points of 3 order against an implementation bill and 4 against its consideration are waived. The pre- 5 vious question shall be considered as ordered on 6 an implementation bill to its passage without 7 intervening motion except 2 hours of debate 8 equally divided and controlled by the proponent 9 and an opponent and one motion to limit debate 10 on an implementation bill. A motion to recon- 11 sider the vote on passage of an implementation 12 bill shall not be in order. 13 (3) EXPEDITED 14 PROCEDURE IN THE SENATE.— (A) COMMITTEE CONSIDERATION.—An im- 15 plementation bill introduced in the Senate 16 under paragraph (1) shall be jointly referred to 17 the committee or committees of jurisdiction, 18 which committees shall report the bill and with 19 a favorable recommendation, an unfavorable 20 recommendation, or without recommendation 21 not later than 3 days after the date on which 22 the implementation bill is introduced. If any 23 committee fails to report an implementation bill 24 within that period, that committee shall be 25 automatically discharged from consideration of B86 K2 8MV ALB20131 S.L.C. 12 1 the bill, and the implementation bill shall be 2 placed on the appropriate calendar. 3 (B) MOTION TO PROCEED.—Notwith- 4 standing rule XXII of the Standing Rules of 5 the Senate, it is in order, not later than 3 days 6 of session after the date on which an implemen- 7 tation bill is reported or discharged from all 8 committees to which it was referred, for the 9 Majority Leader of the Senate or the Majority 10 Leader’s designee to move to proceed to the 11 consideration of the implementation bill. It shall 12 also be in order for any Member of the Senate 13 to move to proceed to the consideration of the 14 implementation bill at any time after the con- 15 clusion of such 3-day period. A motion to pro- 16 ceed is in order even though a previous motion 17 to the same effect has been disagreed to. All 18 points of order against the motion to proceed to 19 an implementation bill are waived. The motion 20 to proceed is not debatable. The motion is not 21 subject to a motion to postpone. A motion to 22 reconsider the vote by which the motion is 23 agreed to or disagreed to shall not be in order. 24 If a motion to proceed to the consideration of 25 an implementation bill is agreed to, the imple- B86 K2 8MV ALB20131 S.L.C. 13 1 mentation bill shall remain the unfinished busi- 2 ness until disposed of. 3 (C) CONSIDERATION.—All points of order 4 against an implementation bill and against con- 5 sideration of the implementation bill are waived. 6 Consideration of an implementation bill, includ- 7 ing amendments thereto, and debatable motions 8 and appeals in connection therewith shall not 9 exceed a total of 30 hours which shall be di- 10 vided equally between the Majority and Minor- 11 ity Leaders or their designees. A motion further 12 to limit debate on an implementation bill is in 13 order, shall require an affirmative vote of a ma- 14 jority of the Members duly chosen and sworn, 15 and is not debatable. Any debatable motion or 16 appeal is debatable for not to exceed 1 hour, to 17 be divided equally between those favoring and 18 those opposing the motion or appeal. All time 19 used for consideration of an implementation 20 bill, including time used for quorum calls and 21 voting, shall be counted against the total 30 22 hours of consideration. 23 (D) LIMITATIONS ON CONSIDERATION.—A 24 motion to postpone, or a motion to recommit 25 the implementation bill or a motion to proceed B86 K2 8MV ALB20131 S.L.C. 14 1 to the consideration of other business is not in 2 order. 3 (E) RULINGS OF THE CHAIR ON PROCE- 4 DURE.—Appeals 5 relating to the application of the rules of the 6 Senate, as the case may be, to the procedure re- 7 lating to an implementation bill shall be decided 8 without debate. 9 (4) CONSIDERATION 10 (A) IN from the decisions of the Chair BY THE OTHER HOUSE.— GENERAL.—If, before passing an 11 implementation bill, one House receives from 12 the other the implementation bill— 13 (i) the implementation bill of the 14 other House shall be referred to a com- 15 mittee; and 16 (ii) the procedure in the receiving 17 House shall be the same as if no imple- 18 mentation bill had been received from the 19 other House. 20 21 (5) RULES TO COORDINATE ACTION WITH OTHER HOUSE.— 22 (A) TREATMENT 23 BILL OF OTHER HOUSE.—If 24 introduce or consider an implementation bill 25 under this section, the implementation bill of B86 K2 8MV OF IMPLEMENTATION the Senate fails to ALB20131 S.L.C. 15 1 the House of Representatives shall be entitled 2 to expedited floor procedures under this section. 3 (B) TREATMENT 4 URES IN THE SENATE.—If 5 an implementation bill in the Senate, the Sen- 6 ate then receives the implementation bill from 7 the House of Representatives, the House-passed 8 implementation bill shall not be debatable. The 9 vote on passage of the implementation bill in 10 the Senate shall be considered to be the vote on 11 passage of the implementation bill received 12 from the House of Representatives. 13 (6) VETOES.—If the President vetoes an imple- 14 mentation bill, debate on a veto message in the Sen- 15 ate under this section shall be 1 hour equally divided 16 between the majority and minority leaders or their 17 designees. B86 K2 8MV OF COMPANION MEAS- following passage of