[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3612 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 3612

   To protect citizens and legal residents of the United States from 
   unreasonable searches and seizures of electronic equipment at the 
                    border, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 26 (legislative day, September 17), 2008

  Mr. Feingold (for himself, Ms. Cantwell, Mr. Akaka, and Mr. Wyden) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
   To protect citizens and legal residents of the United States from 
   unreasonable searches and seizures of electronic equipment at the 
                    border, 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 ``Travelers' Privacy Protection Act of 
2008''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Law-abiding citizens and legal residents of the United 
        States, regardless of their race, ethnicity, religion, or 
        national origin, have a reasonable expectation of privacy in 
        the contents of their laptops, cell phones, personal handheld 
        devices, and other electronic equipment.
            (2) The Department of Homeland Security has taken the 
        position that laptops and other electronic devices should not 
        be treated any differently from suitcases or other ``closed 
        containers'' and may be inspected by customs or immigration 
        agents at the border or in international airports without 
        suspicion of wrongdoing.
            (3) The Department of Homeland Security published a policy 
        on July 16, 2008, allowing customs and immigration agents at 
        the border and in international airports to ``detain'' 
        electronic equipment and ``review and analyze'' the contents of 
        electronic equipment ``absent individualized suspicion''. The 
        policy applies to any person entering the United States, 
        including citizens and other legal residents of the United 
        States returning from overseas travel.
            (4) The privacy interest in the contents of a laptop 
        computer differs in kind and in amount from the privacy 
        interest in other ``closed containers'' for many reasons, 
        including the following:
                    (A) Unlike any other ``closed container'' that can 
                be transported across the border, laptops and similar 
                electronic devices can contain the equivalent of a full 
                library of information about a person, including 
                medical records, financial records, e-mails and other 
                personal and business correspondence, journals, and 
                privileged work product.
                    (B) Most people do not know, and cannot control, 
                all of the information contained on their laptops, such 
                as records of websites previously visited and deleted 
                files.
                    (C) Electronic search tools render searches of 
                electronic equipment more invasive than searches of 
                physical locations or objects.
            (5) Requiring citizens and other legal residents of the 
        United States to submit to a government review and analysis of 
        thousands of pages of their most personal information without 
        any suspicion of wrongdoing is incompatible with the values of 
        liberty and personal freedom on which the United States was 
        founded.
            (6) Searching the electronic equipment of persons for whom 
        no individualized suspicion exists is an inefficient and 
        ineffective use of limited law enforcement resources.
            (7) Some citizens and legal residents of the United States 
        who have been subjected to electronic border searches have 
        reported being asked inappropriate questions about their 
        religious practices, political beliefs, or national allegiance, 
        indicating that the search may have been premised in part on 
        perceptions about their race, ethnicity, religion, or national 
        origin.
            (8) Targeting citizens and legal residents of the United 
        States for electronic border searches based on race, ethnicity, 
        religion, or national origin is wholly ineffective as a matter 
        of law enforcement and repugnant to the values and 
        constitutional principles of the United States.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Border.--The term ``border'' includes the border and 
        the functional equivalent of the border.
            (2) Copies.--The term ``copies'', as applied to the 
        contents of electronic equipment, includes printouts, 
        electronic copies or images, or photographs of, or notes 
        reproducing or describing, any contents of the electronic 
        equipment.
            (3) Contraband.--The term ``contraband'' means any item the 
        importation of which is prohibited by the laws enforced by 
        officials of the Department of Homeland Security.
            (4) Electronic equipment.--The term ``electronic 
        equipment'' has the meaning given the term ``computer'' in 
        section 1030(e)(1) of title 18, United States Code.
            (5) Foreign intelligence information.--The term ``foreign 
        intelligence information'' means information described in 
        section 101(e)(1) of the Foreign Intelligence Surveillance Act 
        of 1978 (50 U.S.C. 1801(e)(1)).
            (6) Foreign intelligence surveillance court.--The term 
        ``Foreign Intelligence Surveillance Court'' means the court 
        established under section 103(a) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1803(a)).
            (7) Officials of the department of homeland security.--The 
        term ``officials of the Department of Homeland Security'' means 
        officials and employees of the Department of Homeland Security, 
        including officials and employees of U.S. Customs and Border 
        Protection and U.S. Immigration and Customs Enforcement, who 
        are authorized to conduct searches at the border.
            (8) Permanently destroyed.--The term ``permanently 
        destroyed'', with respect to information stored electronically, 
        means the information has been deleted and cannot be 
        reconstructed or retrieved through any means.
            (9) Reasonable suspicion.--The term ``reasonable 
        suspicion'' means a suspicion that has a particularized and 
        objective basis.
            (10) Search.--
                    (A) In general.--The term ``search'' means any 
                inspection of any of the contents of any electronic 
                equipment, including a visual scan of icons or file 
                names.
                    (B) Exception.--The term ``search'' does not 
                include asking a person to turn electronic equipment on 
                or off or to engage in similar actions to ensure that 
                the electronic equipment is not itself dangerous.
            (11) Seizure.--
                    (A) In general.--The term ``seizure'' means the 
                retention of electronic equipment or copies of any 
                contents of electronic equipment for a period longer 
                than 24 hours.
                    (B) Exceptions.--The term ``seizure'' does not 
                include the retention of electronic equipment or copies 
                of any contents of electronic equipment--
                            (i) for a period of not more than 3 days 
                        after the expiration of the 24-hour period 
                        specified in section 5(e) if an application for 
                        a warrant is being prepared or pending in a 
                        district court of the United States;
                            (ii) for a period of not more than 21 days 
                        after the expiration of the 24-hour period 
                        specified in section 5(e) if an application for 
                        an order from the Foreign Intelligence 
                        Surveillance Court with respect to such 
                        equipment or copies is being prepared; or
                            (iii) if an application for an order from 
                        the Foreign Intelligence Surveillance Court 
                        with respect to such equipment or copies is 
                        pending before that Court.
            (12) United states resident.--The term ``United States 
        resident'' means a United States citizen, an alien lawfully 
        admitted for permanent residence under section 245 of the 
        Immigration and Nationality Act (8 U.S.C. 1255), or a 
        nonimmigrant alien described in section 101(a)(15) of such Act 
        (8 U.S.C. 1101(a)(15)) who is lawfully residing in the United 
        States.

SEC. 4. STANDARDS FOR SEARCHES AND SEIZURES.

    (a) Searches.--Except as provided in subsection (c), electronic 
equipment transported by a United States resident may be searched at 
the border only if an official of the Department of Homeland Security 
has a reasonable suspicion that the resident--
            (1) is carrying contraband or is otherwise transporting 
        goods or persons in violation of the laws enforced by officials 
        of the Department of Homeland Security; or
            (2) is inadmissible or otherwise not entitled to enter the 
        United States under the laws enforced by officials of the 
        Department of Homeland Security.
    (b) Seizures.--Except as provided in subsection (c), electronic 
equipment transported by a United States resident may be seized at the 
border only if--
            (1) the Secretary of Homeland Security obtains a warrant 
        based on probable cause to believe that the equipment contains 
        information or evidence relevant to a violation of any law 
        enforced by the Department of Homeland Security;
            (2) another Federal, State, or local law enforcement agency 
        obtains a warrant based on probable cause to believe that the 
        equipment contains information or evidence relevant to a 
        violation of any law enforced by that agency; or
            (3) an agency or department of the United States obtains an 
        order from the Foreign Intelligence Surveillance Court 
        authorizing the seizure of foreign intelligence information.
    (c) Exceptions.--Nothing in this Act shall be construed to affect 
the authority of any law enforcement official to conduct a search 
incident to arrest, a search based upon voluntary consent, or any other 
search predicated on an established exception, other than the exception 
for border searches, to the warrant requirement of the fourth amendment 
to the Constitution of the United States.

SEC. 5. PROCEDURES FOR SEARCHES.

    (a) Initiating Search.--Before beginning a search of electronic 
equipment transported by a United States resident at the border, the 
official of the Department of Homeland Security initiating the search 
shall--
            (1) obtain supervisory approval to engage in the search;
            (2) record--
                    (A) the nature of the reasonable suspicion and the 
                specific basis or bases for that suspicion;
                    (B) if travel patterns are cited as a basis for 
                suspicion, the specific geographic area or areas of 
                concern to which the resident traveled;
                    (C) the age of the resident;
                    (D) the sex of the resident;
                    (E) the country of origin of the resident;
                    (F) the citizenship or immigration status of the 
                resident; and
                    (G) the race or ethnicity of the resident, as 
                perceived by the official of the Department of Homeland 
                Security initiating the search.
    (b) Conditions of Search.--
            (1) Presence of united states resident.--The United States 
        resident transporting the electronic equipment to be searched 
        shall be permitted to remain present during the search, whether 
        the search occurs on- or off-site.
            (2) Presence of officials of the department of homeland 
        security.--Not fewer than 2 officials of the Department of 
        Homeland Security, including 1 supervisor, shall be present 
        during the search.
            (3) Environment.--The search shall take place in a secure 
        environment where only the United States resident transporting 
        the electronic equipment and officials of the Department of 
        Homeland Security are able to view the contents of the 
        electronic equipment.
    (c) Scope of Search.--The search shall--
            (1) be tailored to the reasonable suspicion recorded by the 
        official of the Department of Homeland Security before the 
        search began; and
            (2) be confined to documents, files, or other stored 
        electronic information that could reasonably contain--
                    (A) contraband;
                    (B) evidence that the United States resident is 
                transporting goods or persons in violation of the laws 
                enforced by the Department of Homeland Security; or
                    (C) evidence that the person is inadmissible or 
                otherwise not entitled to enter the United States under 
                the laws enforced by officials of the Department of 
                Homeland Security.
    (d) Record of Search.--At the time of the search, the official or 
agent of the Department of Homeland Security conducting the search 
shall record a detailed description of the search conducted, including 
the documents, files, or other stored electronic information searched.
    (e) Conclusion of Warrantless Search.--At the conclusion of the 24-
hour period following commencement of a search of electronic equipment 
or the contents of electronic equipment at the border--
            (1) no further search of the electronic equipment or any 
        contents of the electronic equipment is permitted without a 
        warrant or an order from the Foreign Intelligence Surveillance 
        Court authorizing the seizure of the electronic equipment or 
        the contents of the electronic equipment; and
            (2) except as specified in section 6, the electronic 
        equipment shall immediately be returned to the United States 
        resident and any copies of the contents of the electronic 
        equipment shall be permanently destroyed not later than 3 days 
        after the conclusion of the search.

SEC. 6. PROCEDURES FOR SEIZURES.

    (a) Application for Warrant by the Department of Homeland 
Security.--If, after completing a search under section 5, an official 
of the Department of Homeland Security has probable cause to believe 
that the electronic equipment of a United States resident contains 
information or evidence relevant to a violation of any law enforced by 
the Department, the Secretary of Homeland Security shall immediately 
apply for a warrant describing with particularity the electronic 
equipment or contents of the electronic equipment to be searched (if 
further search is required) and the contents to be seized.
    (b) Disclosure of Information and Application by Other Federal, 
State, or Local Government Departments or Agencies.--
            (1) Disclosure to other agencies or departments.--
                    (A) In general.--If an official of the Department 
                of Homeland Security discovers, during a search that 
                complies with the requirements of section 5, 
                information or evidence relevant to a potential 
                violation of a law with respect to which another 
                Federal, State, or local law enforcement agency has 
                jurisdiction, the Secretary of Homeland Security may 
                transmit a copy of that information or evidence to that 
                law enforcement agency.
                    (B) Foreign intelligence information.--If an 
                official the Department of Homeland Security discovers, 
                during a search that complies with the requirements of 
                section 5, information that the Secretary of Homeland 
                Security believes to be foreign intelligence 
                information, the Secretary may transmit a copy of that 
                information to the appropriate agency or department of 
                the United States.
            (2) Prohibition on transmission of other information.--The 
        Secretary may not transmit any information or evidence with 
        respect to the contents of the electronic equipment other than 
        the information or evidence described in paragraph (1).
            (3) Application for warrant or court order.--
                    (A) In general.--A Federal, State, or local law 
                enforcement agency to which the Secretary of Homeland 
                Security transmits a copy of information or evidence 
                pursuant to paragraph (1)(A) may use the information or 
                evidence as the basis for an application for a warrant 
                authorizing the seizure of the electronic equipment or 
                any other contents of the electronic equipment.
                    (B) Foreign intelligence information.--An agency or 
                department of the United States to which the Secretary 
                transmits a copy of information pursuant to paragraph 
                (1)(B) may use the information as the basis for an 
                application for an order from the Foreign Intelligence 
                Surveillance Court authorizing the seizure of the 
                electronic equipment or any contents of the electronic 
                equipment.
    (c) Retention While an Application for a Warrant or a Court Order 
Is Pending.--
            (1) Electronic equipment.--The Secretary of Homeland 
        Security--
                    (A) may retain possession of the electronic 
                equipment or copies of any contents of the electronic 
                equipment--
                            (i) for a period not to exceed 3 days after 
                        the expiration of the 24-hour period specified 
                        in section 5(e) if an application for a warrant 
                        described in subsection (a) or subsection 
                        (b)(3)(A) is being prepared or pending;
                            (ii) for a period not to exceed 21 days 
                        after the expiration of the 24-hour period 
                        specified in section 5(e) while an application 
                        for an order from the Foreign Intelligence 
                        Surveillance Court described in subsection 
                        (b)(3)(B) is being prepared; or
                            (iii) while an application for an order 
                        from the Foreign Intelligence Surveillance 
                        Court described in subsection (b)(3)(B) is 
                        pending before that Court; and
                    (B) may not further search the electronic equipment 
                or the contents of the electronic equipment during a 
                period described in subparagraph (A).
            (2) Information transmitted to other agencies.--
                    (A) In general.--Any Federal, State, or local law 
                enforcement agency that receives a copy of information 
                or evidence pursuant to subsection (b)(1)(A) shall 
                permanently destroy the copy not later than 3 days 
                after receiving the copy unless the agency has obtained 
                a warrant authorizing the seizure of the electronic 
                equipment or copies of any contents of the electronic 
                equipment.
                    (B) Foreign intelligence information.--Any agency 
                or department of the United States that receives a copy 
                of information pursuant to subsection (b)(1)(B) shall 
                permanently destroy the copy--
                            (i) not later than 21 days after receiving 
                        the copy if a court order authorizing the 
                        seizure of the electronic equipment or copies 
                        of any contents of the electronic equipment has 
                        not been obtained or denied and an application 
                        for such an order is not pending before the 
                        Foreign Intelligence Surveillance Court; or
                            (ii) not later than 3 days after a denial 
                        by the Foreign Intelligence Surveillance Court 
                        of an application for a court order.
    (d) Retention Upon Execution of a Warrant or Court Order.--
            (1) In general.--Upon execution of a warrant or an order of 
        the Foreign Intelligence Surveillance Court, officials of the 
        Department of Homeland Security, the Federal, State, or local 
        law enforcement agency obtaining the warrant pursuant to 
        subsection (b)(3)(A), or the agency or department of the United 
        States obtaining the court order pursuant to subsection 
        (b)(3)(B), as the case may be, may retain copies of the 
        contents of the electronic equipment that the warrant or court 
        order authorizes to be seized.
            (2) Destruction of contents not authorized to be seized.--
        Copies of any contents of the electronic equipment that are not 
        authorized to be seized pursuant to the warrant or court order 
        described in paragraph (1) shall be permanently destroyed and 
        the electronic equipment shall be returned to the United States 
        resident unless the warrant or court order authorizes seizure 
        of the electronic equipment.
    (e) Nonretention Upon Denial of Warrant or Court Order.--If the 
application for a warrant described in subsection (a) or subsection 
(b)(3)(A) or for a court order described in subsection (b)(3)(B) is 
denied, the electronic equipment shall be returned to the United States 
resident and any copies of the contents of the electronic equipment 
shall be permanently destroyed not later than 3 days after the denial 
of the warrant or court order.
    (f) Receipt and Disclosure.--Any United States resident whose 
electronic equipment is removed from the resident's possession for 
longer than a 24-hour period shall be provided with--
            (1) a receipt;
            (2) a statement of the rights of the resident and the 
        remedies available to the resident under this Act; and
            (3) the name and telephone number of an official of the 
        Department of Homeland Security who can provide the resident 
        with information about the status of the electronic equipment.

SEC. 7. PROHIBITION ON PROFILING.

    (a) In General.--An official of the Department of Homeland Security 
may not consider race, ethnicity, national origin, or religion in 
selecting United States residents for searches of electronic equipment 
or in determining the scope or substance of such a search except as 
provided in subsection (b).
    (b) Exception With Respect to Descriptions of Particular Persons.--
An official of the Department of Homeland Security may consider race, 
ethnicity, national origin, or religion in selecting United States 
resident for searches of electronic equipment only to the extent that 
race, ethnicity, national origin, or religion, as the case may be, is 
included among other factors in a description of a particular person 
for whom reasonable suspicion is present, based on factors unrelated to 
race, ethnicity, national origin, or religion.
    (c) Reports.--
            (1) In general.--Not later than 1 year after the date of 
        the enactment of this Act, and annually thereafter, the 
        Inspector General and the Officer for Civil Rights and Civil 
        Liberties of the Department of Homeland Security shall jointly 
        issue a public report that--
                    (A) assesses the compliance of the Department of 
                Homeland Security with the prohibition under subsection 
                (a);
                    (B) assesses the impact of searches of electronic 
                equipment by the Department of Homeland Security on 
                racial, ethnic, national, and religious minorities, 
                including whether such searches have a disparate 
                impact; and
                    (C) includes any recommendations for changes to the 
                policies and procedures of the Department of Homeland 
                Security with respect to searches of electronic 
                equipment to improve the compliance of the Department 
                with the prohibition under subsection (a).
            (2) Resources.--The Secretary of Homeland Security shall 
        ensure that the Inspector General and the Officer for Civil 
        Rights and Civil Liberties are provided the necessary staff, 
        resources, data, and documentation to issue the reports 
        required under paragraph (1), including the information 
        described in sections 5(a)(2) and 5(d) if requested by the 
        Inspector General or the Officer for Civil Rights and Civil 
        Liberties.
    (d) Survey.--To facilitate an understanding of the impact on 
racial, ethnic, national, and religious minorities of searches of 
electronic equipment at the border, the Secretary of Homeland Security 
shall conduct a random sampling of a statistically significant number 
of travelers and record for such travelers the demographic information 
described in subparagraphs (C) through (G) of section 5(a)(2). That 
information shall be maintained by the Department of Homeland Security 
in aggregate form only.

SEC. 8. LIMITS ON ACCESS AND DISCLOSURE.

    (a) Scope.--The limitations on access and disclosure set forth in 
this section apply to any electronic equipment, copies of contents of 
electronic equipment, or information acquired pursuant to a search of 
electronic equipment at the border, other than such equipment, copies, 
or information seized pursuant to a warrant or court order.
    (b) Access.--No official, employee, or agent of the Department of 
Homeland Security or any Federal, State, or local government agency or 
department may have access to electronic equipment or copies of the 
contents of the electronic equipment acquired pursuant to a search of 
electronic equipment at the border other than such an official, 
employee, or agent who requires such access in order to perform a 
function specifically provided for under this Act.
    (c) Security.--The Secretary of Homeland Security and the head of 
any Federal, State, or local government agency or departments that 
comes into possession of electronic equipment or any copies of the 
contents of electronic equipment pursuant to a search of electronic 
equipment at the border shall ensure that--
            (1) the electronic equipment is secured against theft or 
        unauthorized access; and
            (2) any electronic copies of the contents of electronic 
        equipment are encrypted or otherwise secured against theft or 
        unauthorized access.
    (d) General Prohibition on Disclosure.--No information acquired by 
officials, employees, or agents of the Department of Homeland Security 
or any Federal, State, or local government agency or department 
pursuant to a search of electronic equipment at the border shall be 
shared with or disclosed to any other Federal, State, or local 
government agency or official or any private person except as 
specifically provided in this Act.
    (e) Court Order Exception.--If the Secretary of Homeland Security 
or any other Federal, State, or local government agency or department 
determines that a disclosure of information that is not authorized by 
this Act is necessary to prevent grave harm to persons or property, the 
Secretary or agency or department, as the case may be, may apply ex 
parte to a district court of the United States for an order permitting 
such disclosure.
    (f) Privileges.--Any disclosure of privileged information that 
results directly from a search of electronic equipment at the border 
shall not operate as a waiver of the privilege.
    (g) Applicability of Privacy Act.--The limitations on access and 
disclosure under this Act supplement rather than supplant any 
applicable limitations set forth in section 552a of title 5, United 
States Code.

SEC. 9. IMPLEMENTATION.

    (a) Regulations.--The Secretary of Homeland Security shall issue 
regulations to carry out this Act.
    (b) Training.--The Secretary of Homeland Security shall ensure that 
all officials and agents of the Department of Homeland Security engaged 
in searches of electronic equipment at the border are thoroughly and 
adequately trained in the laws and procedures related to such searches.
    (c) Accountability.--The Secretary of Homeland Security shall 
implement procedures to detect and discipline violations of this Act by 
officials, employees, and agents of the Department of Homeland 
Security.

SEC. 10. RECORDKEEPING AND REPORTING.

    (a) Reports to Congress.--
            (1) Existing policies and guidelines.--Not later than 30 
        days after the date of the enactment of this Act, the Secretary 
        of Homeland Security shall submit to Congress a report that 
        includes--
                    (A) the policies and guidelines of the Department 
                of Homeland Security, including field supervision and 
                intelligence directives, relating to searches of 
                electronic equipment at the border in effect on the 
                date of the enactment of this Act;
                    (B) any training programs or materials relating to 
                such searches being utilized on such date of enactment; 
                and
                    (C) any personnel review and accountability 
                procedures, or memoranda of understanding with other 
                government agencies, relating to such searches in 
                effect on such date of enactment.
            (2) Updated policies and guidelines.--Not later than 30 
        days after revising any of the policies, guidelines, programs, 
        materials, procedures, or memoranda described in paragraph (1) 
        or developing new such policies, guidelines, programs, 
        materials, procedures, or memoranda, the Secretary of Homeland 
        Security shall submit to Congress a report containing the 
        revised or new policies, guidelines, programs, materials, 
        procedures, or memoranda.
            (3) Information about implementation.--
                    (A) Requests.--The information described in 
                subsection (b)(1)(B) and sections 5(a)(2) and 5(d) 
                shall be made available to Congress promptly upon the 
                request of any Member of Congress.
                    (B) Reports.--The information described in section 
                5(a)(2) shall be provided to Congress in aggregate form 
                every 6 months.
            (4) Public availability.--The Secretary of Homeland 
        Security shall make the information in the reports required 
        under paragraphs (1), (2), and (3)(B) available to the public, 
        but may redact any information in those reports if the 
        Secretary determines that public disclosure of the information 
        would cause harm to national security.
    (b) Maintenance of Records.--
            (1) In general.--The Secretary of Homeland Security shall 
        maintain records with respect to--
                    (A) the information described in sections 5(a)(2) 
                and 5(d); and
                    (B) any disclosures of information acquired through 
                searches of electronic equipment at the border to other 
                agencies, officials, or private persons, and the 
                reasons for such disclosures.
            (2) Limitations on access and disclosure.--The information 
        described in paragraph (1)--
                    (A) may be used or disclosed only as specifically 
                provided in this Act or another Federal law and access 
                to that information shall be limited to officials or 
                agents of the Department of Homeland Security who 
                require access in order to effectuate an authorized use 
                or disclosure; and
                    (B) shall be encrypted or otherwise protected 
                against theft or authorized access.
            (3) Use in litigation.--If otherwise discoverable, the 
        information in subsection (b)(1)(B) and sections 5(a)(2) and 
        5(d) may be provided to a person who files a civil action under 
        section 12(a) or a criminal defendant seeking to suppress 
        evidence obtained through a search of electronic equipment at 
        the border pursuant to section 12(d).

SEC. 11. COMPENSATION FOR DAMAGE OR LOSS OF ELECTRONIC EQUIPMENT.

    (a) In General.--A United States resident who believes that the 
electronic equipment of the resident, or contents of the electronic 
equipment, were damaged as a result of a search or seizure under this 
Act may file a claim with the Secretary of Homeland Security for 
compensation. If the resident demonstrates that the search or seizure 
resulted in damage to the electronic equipment or the contents of the 
electronic equipment, the Secretary shall compensate the resident for 
any resulting economic loss using existing appropriations available for 
the Department of Homeland Security.
    (b) Claims Process.--The Secretary of Homeland Security shall 
establish an administrative claims process to handle the claims 
described in subsection (a). The compensation decisions of the 
Secretary shall constitute final agency actions for purposes of 
judicial review under chapter 5 of title 5, United States Code.

SEC. 12. ENFORCEMENT AND REMEDIES.

    (a) Civil Actions.--
            (1) In general.--Any person injured by a violation of this 
        Act may file a civil action in a district court of the United 
        States against the United States or an individual officer or 
        agent of the United States for declaratory or injunctive relief 
        or damages.
            (2) Statute of limitations.--A civil action under paragraph 
        (1) shall be filed not later than 2 years after the later of--
                    (A) the date of the alleged violation of this Act; 
                or
                    (B) the date on which the person who files the 
                civil action reasonably should have known of the 
                alleged violation.
            (3) Damages.--A person who demonstrates that the person has 
        been injured by a violation of this Act may receive liquidated 
        damages of $1,000 or actual economic damages, whichever is 
        higher.
            (4) Special rule with respect to civil actions for 
        profiling.--In the case of a civil action filed under paragraph 
        (1) that alleges a violation of section 7, proof that searches 
        of the electronic equipment of United States residents at the 
        border have a disparate impact on racial, ethnic, religious, or 
        national minorities shall constitute prima facie evidence of 
        the violation.
            (5) Attorney's fees.--In any civil action filed under 
        paragraph (1), the district court may allow a prevailing 
        plaintiff reasonable attorney's fees and costs, including 
        expert fees.
    (b) Admissibility of Information in Criminal Actions.--In any 
criminal prosecution brought in a district court of the United States, 
the court may exclude evidence obtained as a direct or indirect result 
of a violation of this Act if the exclusion would serve the interests 
of justice.
                                 <all>