[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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