[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2694 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 2694

To place restrictions on searches and seizures of electronic devices at 
                              the border.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 24, 2019

 Mr. Leahy (for himself and Mr. Daines) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To place restrictions on searches and seizures of electronic devices at 
                              the border.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. DEFINITIONS.

    In this Act:
            (1) Forensic search.--The term ``forensic search'' means 
        any examination of an electronic device that--
                    (A) is conducted for longer than 4 hours;
                    (B) is conducted with the assistance of any other 
                electronic device, electronic equipment, or software, 
                including software enabling the searching, scanning, or 
                indexing of the contents of the device;
                    (C) involves the copying or documentation of data 
                stored on the device; or
                    (D) is conducted in any other manner that would not 
                fall within the definition of a manual search or a 
                search described in section 4(1).
            (2) Manual search.--The term ``manual search'' means the 
        examination of an electronic device that is conducted manually 
        without--
                    (A) the assistance of any other electronic device, 
                electronic equipment, or software, including the use of 
                special search programs; or
                    (B) the entry of any password, passcode, 
                fingerprint, account information, or other biometric 
                identifier that permits access to data otherwise 
                protected by technological means.

SEC. 2. SEARCHES AND SEIZURES OF ELECTRONIC DEVICES AT THE BORDER.

    (a) In General.--Except as otherwise provided in this section, an 
official of the Department of Homeland Security may not search or seize 
an electronic device transported by a United States person at the 
international border.
    (b) Manual Searches.--An electronic device transported by an 
individual at the border may be subject to a manual search by an 
official of the Department of Homeland Security, in accordance with the 
procedures described in subsection (f) if the official has a reasonable 
suspicion that--
            (1) the individual transporting the device--
                    (A) is carrying contraband or is otherwise 
                transporting goods or persons in violation of the laws 
                enforced by the Department of Homeland Security; or
                    (B) is inadmissible or otherwise not entitled to 
                enter the United States under such laws; and
            (2) the device contains information or evidence relevant to 
        a violation referred to in paragraph (1).
    (c) Seizures.--An electronic device transported by an individual at 
the border may be seized by an official of the Department of Homeland 
Security, in accordance with the procedures described in subsection (f) 
if the official has probable cause to believe that--
            (1) the individual--
                    (A) is carrying contraband or is otherwise 
                transporting goods or persons in violation of the laws 
                enforced by the Department of Homeland Security;
                    (B) is inadmissible or otherwise not entitled to 
                enter the United States under such laws; or
                    (C) is in violation of any Federal or State law 
                punishable by more than 1 year; and
            (2) the electronic device contains information or evidence 
        relevant to a violation referred to in paragraph (1).
    (d) Forensic Searches.--An electronic device transported by an 
individual at the border may be subject to forensic search only 
pursuant to a warrant issued using the procedures described in the 
Federal Rules of Criminal Procedure (or, in the case of a State court, 
issued using State warrant procedures) by a court of competent 
jurisdiction.
    (e) Admissibility of Evidence.--Information obtained or derived 
pursuant to a violation of this section--
            (1) may not be used as the basis for demonstrating the 
        inadmissibility or removability of an individual; and
            (2) may not be received in evidence or disclosed in any 
        trial, hearing, or other proceeding in or before any court, 
        grand jury, department, officer, agency, regulatory body, 
        legislative committee, or other authority of the United States, 
        a State, or a political subdivision of a State.
    (f) Procedures for Searches and Seizures of Electronic Devices at 
the Border.--
            (1) Initiating a search or seizure.--Prior to initiating 
        any search or seizure of an electronic device transported by an 
        individual at the border pursuant to the authority under this 
        section, the official of the Department of Homeland Security 
        initiating the search or seizure shall--
                    (A) obtain supervisory approval to engage in the 
                search or seizure; and
                    (B) record--
                            (i) the nature of the reasonable suspicion 
                        or probable cause and the specific facts or 
                        bases for that determination; and
                            (ii) the age, sex, country of origin, 
                        citizenship or immigration status, ethnicity, 
                        and race of the individual transporting the 
                        electronic device.
            (2) Conditions for a manual search.--
                    (A) Presence of the individual.--The individual 
                transporting the electronic device subject to a manual 
                search shall be permitted to remain present during the 
                search of the electronic device.
                    (B) Scope of manual search.--A manual search--
                            (i) shall be conducted by an official of 
                        the Department of Homeland Security manually, 
                        without the assistance of any electronic device 
                        or electronic equipment;
                            (ii) shall be tailored to the reasonable 
                        suspicion recorded by the official of the 
                        Department of Homeland Security before the 
                        manual search began;
                            (iii) shall be confined to documents, 
                        files, or other electronic information stored 
                        on the electronic device that could reasonably 
                        contain information or evidence relevant to a 
                        violation described in paragraph (3) and are 
                        accessible without the entry of any password, 
                        passcode, fingerprint, or other biometric 
                        identifier; and
                            (iv) may not exceed a total of 4 hours.
                    (C) Destruction of inadvertently collected 
                information.--Unless an official of the Department of 
                Homeland Security determines, not later than 5 days 
                after a manual search, that information obtained from 
                the electronic device is evidence of a crime or 
                immigration violation, an official of the Department 
                shall delete any information collected from or about 
                the device from Department records not later than 10 
                days after the date on which the search was conducted.
            (3) Conditions for a seizure of an electronic device.--
                    (A) Requirement for warrant or court order 
                approving seizure.--
                            (i) In general.--Not later than 48 hours 
                        after an official of the Department of Homeland 
                        Security seizes an electronic device pursuant 
                        to the authority under this section, an 
                        official of the Department shall seek a warrant 
                        or order approving the seizure under the 
                        procedures described in the Federal Rules of 
                        Criminal Procedure (or, in the case of a State 
                        court, issued using State warrant procedures).
                            (ii) No warrant or order.--If a warrant or 
                        order is denied or fails to be issued after the 
                        seizure, an official of the Department of 
                        Homeland Security shall immediately return the 
                        electronic device to the individual from whom 
                        it was seized.
                    (B) Suspension and prohibition of search.--An 
                electronic device seized at the border pursuant to the 
                authority under this section may not be accessed or 
                searched by any governmental entity before the issuance 
                of a warrant or court order authorizing the accessing 
                or search of the device.

SEC. 3. REPORTING.

    The Secretary of Homeland Security shall submit an annual report to 
the Committee on the Judiciary of the Senate, the Committee on the 
Judiciary of the House of Representatives, the Committee on Homeland 
Security and Governmental Affairs of the Senate, and the Committee on 
Homeland Security of the House of Representatives that details--
            (1) the number of electronic devices subject to a manual 
        search pursuant to the authority under section 2;
            (2) the number of electronic devices subject to a forensic 
        search pursuant to the authority under section 2;
            (3) the number of electronic devices seized pursuant to the 
        authority under section 2;
            (4) statistics regarding the age, sex, country of origin, 
        citizenship or immigration status, ethnicity, and race of the 
        individuals transporting electronic devices that were subject 
        to a manual search, a forensic search, or seizure;
            (5) the number of individuals whose electronic devices were 
        searched or seized pursuant to the authority under section 2 
        and were later charged with a criminal offense based on 
        information obtained from such search or seizure; and
            (6) the number of individuals detained for refusing to 
        disclose, or provide consent to access, the digital contents of 
        any electronic equipment in the possession of an individual at 
        the border, including the length of time such individual was 
        detained by the Department of Homeland Security.

SEC. 4. SAVINGS PROVISIONS.

    Nothing in this Act may be construed--
            (1) to affect the authority of any law enforcement official 
        to conduct any other lawful 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; or
            (2) to require the individual subject to a search of his or 
        her electronic device to provide any password, passcode, 
        fingerprint, faceprint, or other biometric identifier without 
        his or her consent, in violation of the Fifth Amendment to the 
        Constitution of the United States.
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