[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1726 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1726
To require the Secretary of Homeland Security to issue a rule with
respect to border security searches of electronic devices, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 26, 2009
Ms. Loretta Sanchez of California (for herself, Mr. Engel, Mr.
Gonzalez, Mr. Hinchey, Mr. Thompson of Mississippi, Mr. Hinojosa, Mr.
Grijalva, Mr. Carnahan, Ms. Schakowsky, Mr. Ortiz, Mr. Moran of
Virginia, Mr. Smith of Washington, Mrs. Lowey, Ms. Lee of California,
Mr. Carson of Indiana, Mr. Paul, Ms. Clarke, Mr. Miller of North
Carolina, and Mr. Filner) introduced the following bill; which was
referred to the Committee on Homeland Security
_______________________________________________________________________
A BILL
To require the Secretary of Homeland Security to issue a rule with
respect to border security searches of electronic devices, 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 ``Border Security Search
Accountability Act of 2009''.
SEC. 2. RULE WITH RESPECT TO BORDER SECURITY SEARCHES OF ELECTRONIC
DEVICES.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary, acting through the Commissioner
of United States Customs and Border Protection, in coordination with
the Assistant Secretary of Homeland Security for United States
Immigration and Customs Enforcement and the senior official appointed
pursuant to section 222 of the Homeland Security Act of 2002 (6 U.S.C.
142), shall issue a rule with respect to the scope of and procedural
and recordkeeping requirements associated with border security searches
of electronic devices.
(b) Content.--The rule issued pursuant to subsection (a) shall
include the following:
(1) A requirement that information collected during a
border security search of an electronic device that is
determined to be commercial information, including trade
secrets, information subject to attorney-client privilege,
information subject to doctor-patient privilege, or information
subject to another privilege or protection shall be handled
consistent with the laws, rules, and regulations governing such
information and shall not be shared with a Federal, State,
local, tribal, or foreign agency unless it is determined that
such agency has the mechanisms in place to comply with such
laws, rules, and regulations.
(2) A requirement that authorized agents, to the greatest
extent practicable, conduct all border security searches of
electronic devices in the presence of a supervisor and, where
appropriate, in the presence of the individuals whose
electronic devices are subject to such searches.
(3) A determination of the number of days that an
electronic device subjected to a border security search or the
information collected from such device may be retained, unless
probable cause exists, that prohibits retention exceeding the
period necessary to translate, decrypt, or reasonably search
such device or information and that requires such information
to be destroyed if in the custody of an authorized agent after
such number of days.
(4) A requirement that if information collected from an
electronic device subjected to a border security search is
copied, shared, retained, or entered into an electronic
database, the individual from whose electronic device such
information is collected shall receive written notification of
such copying, sharing, retention, or entry unless such
notification would hinder an investigation involving national
security or would meet another criteria established by the
Secretary in the rule.
(5) A requirement that an individual subjected to a border
security search of an electronic device shall receive a receipt
for such device if such device is removed from the possession
of such individual.
(6) A requirement that an individual subjected to a border
security search of an electronic device shall receive notice of
how to report abuses or concerns and how to seek redress from
the Department of Homeland Security.
(7) A requirement that information on the rights of
individuals with respect to border security searches and
Department of Homeland Security redress procedures shall be
posted at all ports of entry in locations that are likely to be
viewed by individuals subject to border security searches.
(8) A privacy impact assessment of the rule, as prepared by
the senior official appointed pursuant to section 222 of the
Homeland Security Act of 2002, that includes recommendations
with respect to the copying, sharing, retention, and entry into
an electronic database of personally identifiable information
collected from electronic devices subjected to a border
security search.
(9) A civil liberties impact assessment of the rule, as
prepared by the Officer for Civil Rights and Civil Liberties of
the Department of Homeland Security.
SEC. 3. TRAINING AND AUDITING WITH RESPECT TO THE RULE.
(a) Training.--The Secretary shall provide each authorized agent
with appropriate training to conduct border security searches of
electronic devices in accordance with the rule issued pursuant to
section 2. The training shall include instruction on constitutional,
privacy, civil rights, and civil liberties issues related to such
searches.
(b) Auditing.--The Secretary, acting through the Inspector General
of the Department of Homeland Security, shall develop and annually
administer an auditing mechanism to review whether authorized agents
are conducting border security searches of electronic devices in
accordance with the rule issued pursuant to section 2.
SEC. 4. REPORT.
Not later than 180 days after the effective date of the rule issued
pursuant to section 2, and quarterly thereafter, the Secretary shall
submit to the Committee on Homeland Security of the House of
Representatives and to the Committee on Homeland Security and
Governmental Affairs of the Senate a report that shall include the
following:
(1) A description of the activities of authorized agents
with respect to border security searches of electronic devices.
(2) A description of the manner in which the Department of
Homeland Security has complied with this Act.
(3) The number, by port of entry, of border security
searches of electronic devices conducted during the reporting
period.
(4) The number, by port of entry, of instances during the
reporting period that information from an electronic device
subjected to a border security search was retained, copied,
shared, or entered in an electronic database, including the
number of electronic devices retained as the result of a border
security search.
(5) The race, ethnicity, national origin, and citizenship
of each individual whose electronic device was subjected to a
border security search during the reporting period, to
determine the existence or absence of racial profiling.
(6) The number of instances during the reporting period
that information collected from an electronic device subjected
to a border security search was referred to a law enforcement
or intelligence agency for further action, including whether
such information resulted in a prosecution or conviction.
SEC. 5. DEFINITIONS.
In this Act, the following definitions apply:
(1) Authorized agent.--The term ``authorized agent'' means
an agent, officer, or official of United States Customs and
Border Protection, United States Immigration and Customs
Enforcement, or any other office or agency of the Department of
Homeland Security who is authorized to conduct a border
security search.
(2) Border security search.--The term ``border security
search'' means a search by an authorized agent of persons,
baggage, or cargo entering, departing, or passing through the
United States through any port of entry.
(3) Electronic device.--The term ``electronic device''
means an electronic, magnetic, optical, electrochemical, or
other high-speed data processing device performing logical,
arithmetic, or storage functions, such as a computer, a
cellular telephone, or any other device used for electronic
communication or for storing electronic, digital or analog
data, and which includes any data storage facility or
communications facility directly related to or operating in
conjunction with such device.
(4) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
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