[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2957 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 2957

   To ensure the digital contents of electronic equipment and online 
  accounts belonging to or in the possession of United States persons 
 entering or exiting the United States are adequately protected at the 
                    border, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 7, 2021

    Mr. Wyden (for himself, Mr. Paul, Mr. Merkley, and Mr. Markey) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To ensure the digital contents of electronic equipment and online 
  accounts belonging to or in the possession of United States persons 
 entering or exiting the United States are adequately protected 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 ``Protecting Data at the Border Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) United States persons have a reasonable expectation of 
        privacy in the digital contents of their electronic equipment, 
        the digital contents of their online accounts, and the nature 
        of their online presence.
            (2) The Supreme Court of the United States recognized, in 
        Riley v. California, 134 S. Ct. 2473 (2014), the extraordinary 
        privacy interests in electronic equipment like cell phones.
            (3) The privacy interest of United States persons in the 
        digital contents of their electronic equipment, the digital 
        contents of their online accounts, and the nature of their 
        online presence differs in both degree and kind from their 
        privacy interest in closed containers.
            (4) Accessing the digital contents of electronic equipment, 
        accessing the digital contents of an online account, or 
        obtaining information regarding the nature of the online 
        presence of a United States person entering or exiting the 
        United States, without a lawful warrant based on probable 
        cause, is unreasonable under the Fourth Amendment to the 
        Constitution of the United States.

SEC. 3. DEFINITIONS.

    As used in this Act--
            (1) the term ``access credential'' includes a username, 
        password, PIN number, fingerprint, or biometric indicator;
            (2) the term ``border'' means the international border of 
        the United States and the functional equivalent of such border;
            (3) the term ``digital contents'' means any signs, signals, 
        writing, images, sounds, data, or intelligence of any nature 
        transmitted in whole or in part by electronic equipment, or 
        stored in electronic equipment or an online account;
            (4) the term ``electronic communication service'' has the 
        meaning given that term in section 2510 of title 18, United 
        States Code;
            (5) the term ``electronic equipment'' has the meaning given 
        the term ``computer'' in section 1030(e) of title 18, United 
        States Code;
            (6) the term ``Governmental entity'' means a department or 
        agency of the United States (including any officer, employee, 
        or contractor or other agent thereof);
            (7) the term ``online account'' means an online account 
        with an electronic communication service or remote computing 
        service;
            (8) the term ``online account information'' means the 
        screen name or other identifier or information that would allow 
        a Governmental entity to identify the online presence of an 
        individual;
            (9) the term ``remote computing service'' has the meaning 
        given that term in section 2711 of title 18, United States 
        Code; and
            (10) the term ``United States person'' means an individual 
        who is a United States person, as defined in section 101 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

SEC. 4. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL DATA AT THE BORDER.

    (a) Standard.--Subject to subsection (b), a Governmental entity may 
not--
            (1) access the digital contents of any electronic equipment 
        belonging to or in the possession of a United States person at 
        the border without a valid warrant supported by probable cause 
        issued using the procedures described in the Federal Rules of 
        Criminal Procedure by a court of competent jurisdiction;
            (2) deny entry into or exit from the United States by a 
        United States person based on a refusal by the United States 
        person to--
                    (A) disclose an access credential that would enable 
                access to the digital contents of electronic equipment 
                or the digital contents of an online account;
                    (B) provide access to the digital contents of 
                electronic equipment or the digital contents of an 
                online account; or
                    (C) provide online account information; or
            (3) delay entry into or exit from the United States by a 
        United States person for longer than the period of time, which 
        may not exceed 4 hours, necessary to determine whether the 
        United States person will, in a manner in accordance with 
        subsection (c), consensually provide an access credential, 
        access, or online account information, as described in 
        subparagraphs (A), (B), and (C) of paragraph (2).
    (b) Emergency Exceptions.--
            (1) Emergency situations generally.--
                    (A) In general.--An investigative or law 
                enforcement officer of a Governmental entity who is 
                designated by the Secretary of Homeland Security for 
                purposes of this paragraph may access the digital 
                contents of electronic equipment belonging to or in 
                possession of a United States person at the border 
                without a warrant described in subsection (a)(1) if the 
                investigative or law enforcement officer--
                            (i) reasonably determines that--
                                    (I) an emergency situation exists 
                                that involves--
                                            (aa) immediate danger of 
                                        death or serious physical 
                                        injury to any person;
                                            (bb) conspiratorial 
                                        activities threatening the 
                                        national security interest of 
                                        the United States; or
                                            (cc) conspiratorial 
                                        activities characteristic of 
                                        organized crime;
                                    (II) the emergency situation 
                                described in subclause (I) requires 
                                access to the digital contents of the 
                                electronic equipment before a warrant 
                                described in subsection (a)(1) 
                                authorizing such access can, with due 
                                diligence, be obtained; and
                                    (III) there are grounds upon which 
                                a warrant described in subsection 
                                (a)(1) could be issued authorizing such 
                                access; and
                            (ii) makes an application in accordance 
                        with this section for a warrant described in 
                        subsection (a)(1) as soon as practicable, but 
                        not later than 7 days after the investigative 
                        or law enforcement officer accesses the digital 
                        contents under the authority under this 
                        subparagraph.
                    (B) Warrant not obtained.--If an application for a 
                warrant described in subparagraph (A)(ii) is denied, or 
                in any other case in which an investigative or law 
                enforcement officer accesses the digital contents of 
                electronic equipment belonging to or in possession of a 
                United States person at the border without a warrant 
                under the emergency authority under subparagraph (A) 
                and a warrant authorizing the access is not obtained--
                            (i) any copy of the digital contents in the 
                        custody or control of a Governmental entity 
                        shall immediately be destroyed;
                            (ii) the digital contents, and any 
                        information derived from the digital contents, 
                        may not be disclosed to any Governmental entity 
                        or a State or local government; and
                            (iii) the Governmental entity employing the 
                        investigative or law enforcement officer that 
                        accessed the digital contents shall notify the 
                        United States person that any copy of the 
                        digital contents has been destroyed.
            (2) Protection of public safety and health.--A Governmental 
        entity may access the digital contents of electronic equipment 
        belonging to or in possession of a United States person at the 
        border without a warrant described in subsection (a)(1) if the 
        access is--
                    (A) necessary for the provision of fire, medical, 
                public safety, or other emergency services; and
                    (B) unrelated to the investigation of a possible 
                crime or other violation of the law.
    (c) Informed Consent in Writing.--
            (1) Notice.--
                    (A) In general.--A Governmental entity shall 
                provide the notice described in subparagraph (B) before 
                requesting that a United States person at the border--
                            (i) provide consent to access the digital 
                        contents of any electronic equipment belonging 
                        to or in the possession of or the digital 
                        contents of an online account of the United 
                        States person;
                            (ii) disclose an access credential that 
                        would enable access to the digital contents of 
                        electronic equipment or the digital contents of 
                        an online account of the United States person;
                            (iii) provide access to the digital 
                        contents of electronic equipment or the digital 
                        contents of an online account of the United 
                        States person; or
                            (iv) provide online account information of 
                        the United States person.
                    (B) Contents.--The notice described in this 
                subparagraph is written notice in a language understood 
                by the United States person that the Governmental 
                entity--
                            (i) may not--
                                    (I) compel access to the digital 
                                contents of electronic equipment 
                                belonging to or in the possession of, 
                                the digital contents of an online 
                                account of, or the online account 
                                information of a United States person 
                                without a valid warrant;
                                    (II) deny entry into or exit from 
                                the United States by the United States 
                                person based on a refusal by the United 
                                States person to--
                                            (aa) disclose an access 
                                        credential that would enable 
                                        access to the digital contents 
                                        of electronic equipment or the 
                                        digital contents of an online 
                                        account;
                                            (bb) provide access to the 
                                        digital contents of electronic 
                                        equipment or the digital 
                                        contents of an online account; 
                                        or
                                            (cc) provide online account 
                                        information; or
                                    (III) delay entry into or exit from 
                                the United States by the United States 
                                person for longer than the period of 
                                time, which may not exceed 4 hours, 
                                necessary to determine whether the 
                                United States person will consensually 
                                provide an access credential, access, 
                                or online account information, as 
                                described in items (aa), (bb), and (cc) 
                                of subclause (II); and
                            (ii) if the Governmental entity has 
                        probable cause that the electronic equipment 
                        contains information that is relevant to an 
                        allegation that the United States person has 
                        committed a felony, may seize electronic 
                        equipment belonging to or in the possession of 
                        the United States person for a period of time 
                        if the United States person refuses to 
                        consensually provide access to the digital 
                        contents of the electronic equipment.
            (2) Consent.--
                    (A) In general.--A Governmental entity shall obtain 
                written consent described in subparagraph (B) before--
                            (i) accessing, pursuant to the consent of a 
                        United States person at the border the digital 
                        contents of electronic equipment belonging to 
                        or in the possession of or the digital contents 
                        of an online account of the United States 
                        person;
                            (ii) obtaining, pursuant to the consent of 
                        a United States person at the border, an access 
                        credential of the United States person that 
                        would enable access to the digital contents of 
                        electronic equipment or the digital contents of 
                        an online account; or
                            (iii) obtaining, pursuant to the consent of 
                        a United States person at the border, online 
                        account information for an online account of 
                        the United States person.
                    (B) Contents of written consent.--Written consent 
                described in this subparagraph is written consent 
                that--
                            (i) indicates the United States person 
                        understands the protections and limitations 
                        described in paragraph (1)(B);
                            (ii) states the United States person is--
                                    (I) providing consent to the 
                                Governmental entity to access certain 
                                digital contents or consensually 
                                disclosing an access credential; or
                                    (II) consensually providing online 
                                account information; and
                            (iii) specifies the digital contents, 
                        access credential, or online account 
                        information with respect to which the United 
                        States person is providing consent.
    (d) Retention of Digital Contents.--
            (1) Lawful access.--A Governmental entity that obtains 
        access to the digital contents of electronic equipment, the 
        digital contents of an online account, or online account 
        information in accordance with this section may not make or 
        retain a copy of the digital contents or online account 
        information, or any information directly or indirectly derived 
        from the digital contents or online account information, unless 
        there is probable cause to believe the digital contents or 
        online account information contains evidence of, or constitutes 
        the fruits of, a crime.
            (2) Unlawful access.--If a Governmental entity obtains 
        access to the digital contents of electronic equipment, digital 
        contents of an online account, or online account information in 
        a manner that is not in accordance with this section, the 
        Governmental entity--
                    (A) shall immediately destroy any copy of the 
                digital contents or online account information, and any 
                information directly or indirectly derived from the 
                digital contents or online account information, in the 
                custody or control of the Governmental entity;
                    (B) may not disclose the digital contents or online 
                account information, or any information directly or 
                indirectly derived from the digital contents or online 
                account information, to any other Governmental entity 
                or a State or local government; and
                    (C) shall notify the United States person that any 
                copy of the digital contents or online account 
                information, and any information directly or indirectly 
                derived from the digital contents or online account 
                information, has been destroyed.
    (e) Recordkeeping.--A Governmental entity shall keep a record of 
each instance in which the Governmental entity obtains access to the 
digital contents of electronic equipment belonging to or in the 
possession of an individual at the border, the digital contents of an 
online account of an individual who is at the border, or online account 
information of an individual who is at the border, which shall 
include--
            (1) the reason for the access;
            (2) the nationality, immigration status, and admission 
        category of the individual;
            (3) the nature and extent of the access;
            (4) if the access was consensual, how and to what the 
        individual consented, and what the individual provided by 
        consent;
            (5) whether electronic equipment of the individual was 
        seized;
            (6) whether the Governmental entity made a copy of all or a 
        portion of the digital contents or online account information, 
        or any information directly or indirectly derived from the 
        digital contents or online account information; and
            (7) whether the digital contents or online account 
        information, or any information directly or indirectly derived 
        from the digital contents or online account information, was 
        shared with another Governmental entity or a State or local 
        government.

SEC. 5. LIMITS ON USE OF DIGITAL CONTENTS AS EVIDENCE.

    (a) In General.--Whenever any digital contents or online account 
information have been obtained in violation of this Act, no part of the 
digital contents or online account information and no evidence derived 
therefrom may be received in evidence in any trial, hearing, or other 
proceeding (including any proceeding relating to the immigration laws, 
as defined in section 101(a) of the Immigration and Nationality Act (8 
U.S.C. 1101(a))) 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 
thereof.
    (b) Application.--To the maximum extent practicable, the 
limitations under subsection (a) shall be applied in the same manner as 
the limitations under section 2515 of title 18, United States Code.

SEC. 6. LIMITS ON SEIZURE OF ELECTRONIC EQUIPMENT.

    A Governmental entity may not seize any electronic equipment 
belonging to or in the possession of a United States person at the 
border unless there is probable cause to believe that the electronic 
equipment contains information that is relevant to an allegation that 
the United States person has committed a felony.

SEC. 7. AUDIT AND REPORTING REQUIREMENTS.

    In March of each year, the Secretary of Homeland Security shall 
submit to Congress and make publicly available on the website of the 
Department of Homeland Security a report that includes the following:
            (1) The number of times during the previous year that an 
        officer or employee of the Department of Homeland Security did 
        each of the following:
                    (A) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of or the 
                digital contents of an online account of a United 
                States person at the border pursuant to a warrant 
                supported by probable cause issued using the procedures 
                described in the Federal Rules of Criminal Procedure by 
                a court of competent jurisdiction.
                    (B) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of a United 
                States person at the border pursuant to the emergency 
                authority under section 5(b).
                    (C) Requested consent to access the digital 
                contents of any electronic equipment belonging to or in 
                the possession of, the digital contents of an online 
                account of, or online account information of a United 
                States person at the border.
                    (D) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of, the 
                digital contents of an online account of, or online 
                account information of a United States person at the 
                border pursuant to written consent provided in 
                accordance with section 5(c).
                    (E) Requested a United States person at the border 
                consensually disclose an access credential that would 
                enable access to the digital contents of electronic 
                equipment or the digital contents of an online account 
                of the United States person.
                    (F) Accessed the digital contents of electronic 
                equipment or the digital contents of an online account 
                of a United States person at the border using an access 
                credential pursuant to written consent provided in 
                accordance with section 5(c).
                    (G) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of, the 
                digital contents of an online account of, or online 
                account information of a United States person at the 
                border in a manner that was not in accordance with 
                section 5.
                    (H) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of, the 
                digital contents of an online account of, or online 
                account information of an individual who is not a 
                United States person at the border.
                    (I) Accessed the digital contents of any electronic 
                equipment belonging to or in the possession of an 
                individual at the border, the digital contents of an 
                online account of an individual at the border, or 
                online account information of an individual at the 
                border (regardless of whether the individual is a 
                United States person) at the request of a Governmental 
                entity (including another component of the Department 
                of Homeland Security) that is not the Governmental 
                entity employing the individual accessing the digital 
                contents or online account information.
            (2) Aggregate data on--
                    (A) the number of United States persons for which a 
                Governmental entity obtains access to--
                            (i) the digital contents of electronic 
                        equipment belonging to or in the possession of 
                        the United States person at the border;
                            (ii) the digital contents of an online 
                        account of the United States person while at 
                        the border; or
                            (iii) online account information of the 
                        United States person while at the border;
                    (B) the country from which United States persons 
                departed most recently before arriving in the United 
                States for the United States persons for which a 
                Governmental entity obtains access to--
                            (i) the digital contents of electronic 
                        equipment belonging to or in the possession of 
                        the United States person at the border;
                            (ii) the digital contents of an online 
                        account of the United States person while at 
                        the border; or
                            (iii) online account information of the 
                        United States person while at the border;
                    (C) the number and nationality of individuals who 
                are not United States persons for which a Governmental 
                entity obtains access to--
                            (i) the digital contents of electronic 
                        equipment belonging to or in the possession of 
                        the individuals at the border;
                            (ii) the digital contents of an online 
                        account of the individuals while at the border; 
                        or
                            (iii) online account information of the 
                        individuals while at the border; and
                    (D) the country from which individuals who are not 
                United States persons departed most recently before 
                arriving in the United States for the individuals for 
                which a Governmental entity obtains access to--
                            (i) the digital contents of electronic 
                        equipment belonging to or in the possession of 
                        the individuals at the border;
                            (ii) the digital contents of an online 
                        account of the individuals while at the border; 
                        or
                            (iii) online account information of the 
                        individuals while at the border.
            (3) Aggregate data regarding the perceived race and 
        ethnicity of individuals for whom a Governmental entity obtains 
        access to--
                    (A) the digital contents of electronic equipment 
                belonging to or in the possession of the individuals at 
                the border;
                    (B) the digital contents of an online account of 
                the individuals while at the border; or
                    (C) online account information of the individuals 
                while at the border.

SEC. 8. SAVINGS PROVISIONS.

    Nothing in this Act shall be construed to--
            (1) prohibit a Governmental entity from conducting an 
        inspection of the external physical components of the 
        electronic equipment to determine the presence or absence of 
        weapons or contraband without a warrant, including activating 
        or attempting to activate an object that appears to be 
        electronic equipment to verify that the object is electronic 
        equipment; or
            (2) limit the authority of a Governmental entity under the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq.).
                                 <all>