[Congressional Record Volume 154, Number 154 (Friday, September 26, 2008)]
[Senate]
[Pages S9671-S9676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Ms. Cantwell, Mr. Akaka and Mr. 
        Wyden):
  S. 3612. 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; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. FEINGOLD. Today, I am joined by the junior Senator from 
Washington, Senator Cantwell, in introducing the Travelers' Privacy 
Protection Act of 2008. This bill restores privacy for law-abiding 
Americans who, under current administration policy, may be required to 
give customs agents unfettered access to the contents of their laptop 
computers and other electronic devices when they return from overseas 
travel.
  There is a compelling and immediate need for this legislation. Over 
the last two years, reports have surfaced that customs agents have been 
requiring American citizens and others lawfully residing in the U.S. to 
turn over their cell phones or give them the passwords to their 
laptops. The travelers have been forced to wait for hours while customs 
agents reviewed and sometimes copied the contents of the electronic 
devices. In some cases, the laptops or cell phones were confiscated, 
and returned weeks or even months later, with no explanation.
  When the practice was challenged in court, the administration argued 
that it can search the contents of American travelers' laptops without 
any suspicion of wrongdoing whatsoever, because a laptop is no 
different than any other ``closed container.'' In other words, 
according to this administration, there is no difference between 
rifling through the contents of your suitcase, and logging on to your 
laptop, opening your files, and reviewing your photographs, medical 
records, financial records, e-mails, letters, journals, work product, 
or an electronic record of all the Web sites you have visited.
  I am willing to bet that most Americans would disagree. Americans 
understand the importance of security at the borders, and the vast 
majority of them accept that the government is entitled to look through 
their suitcases when they are returning from an overseas trip. But I 
say to my colleagues: try asking your constituents whether the 
government has a right to open their laptops, read their documents and 
e-mails, look at their photographs, and examine the Web sites they have 
visited--all without any suspicion of wrongdoing--and see what they 
say. I think you'll hear the same thing that I have heard: ``Not in the 
United States of America.''

[[Page S9672]]

  In June of this year, I held a hearing of the Constitution 
Subcommittee of the Judiciary Committee to examine this issue. At this 
hearing, we learned about the effect of suspicionless electronic border 
searches on American businesses. The Executive Director for the 
Association of Corporate Travel Executives testified that, in a survey 
of ACTE members, 7 out of 100 respondents had experienced seizures of 
their laptops or other electronic equipment. Many companies are now 
taking expensive and burdensome measures to protect their electronic 
information from forced disclosure at the border. The administration's 
intrusive border practices thus come with a hefty price tag for the 
American business sector, at a time when the economy can ill afford it.
  We also heard disturbing evidence suggesting that Muslim Americans 
and Americans of Arab or South Asian descent are being targeted for 
these invasive searches. Many travelers from these backgrounds who have 
been subject to electronic searches have also been asked about their 
religious and political views, including why they chose to convert to 
Islam, what they think about Jews, and their views of the candidates in 
the upcoming election. This questioning is deeply disturbing in its own 
right. It also strongly suggests that some border searches are being 
based, at least in part, on impermissible factors.
  At the same time it was claiming the right to look at all of the 
information Americans carry with them across the border, the 
administration was refusing to provide Americans or Congress with 
information about its policies for border searches. Requests by the 
public and members of Congress were steadfastly ignored. DHS declined 
my invitation to send a witness to the hearing, claiming that its 
preferred witness was unavailable on that day. But after the hearing 
sparked a flurry of press coverage and major newspapers criticized DHS 
for its secrecy, the agency made public a written policy for border 
searches dated July 16, 2008.
  The DHS policy is truly alarming in the sweeping authority it claims. 
According to the policy, customs agents may ``analyze and review'' the 
information in Americans' laptops and other electronic devices ``absent 
individualized suspicion.'' As part of this search authority, customs 
agents may ``detain'' the electronic device for an unspecified period 
of time, take it off-site, make copies of its contents, and send the 
equipment or the copies to other agencies or even private individuals 
in some cases. Although the policy purports to require probable cause 
to ``seize'' a laptop, as opposed to merely searching it, this 
safeguard is almost meaningless given that DHS's definition of 
``search'' includes the right to ``detain'' the laptop indefinitely. 
Moreover the policy exempts officers' written notes from any 
constraints, allowing customs agents to transcribe an electronic 
document verbatim and keep it forever without any level of suspicion.
  Defenders of this policy outside the administration are hard to find. 
Major newspapers across the country, including the New York Times, the 
Washington Post, and a host of other national and local outlets, have 
published editorials condemning the policy and urging Congress to act. 
As USA Today put it: ``[T]he notion that the government can arbitrarily 
have a free crack at your e-mail, Web searches and other personal 
electronic data is chilling. Given the government's abysmal record of 
safeguarding private data, it's no wonder that business and civil 
liberties groups are protesting.'' In my home state of Wisconsin, the 
Green Bay Press-Gazette put it this way: ``[T]he fact that this policy 
exists . . . is an affront to the core values of the United States of 
America.''

  In the fact of this public outcry, DHS has reacted like a traffic 
officer standing by a 20-car pile-up and telling onlookers ``Nothing to 
see here--move along.'' The agency claims that its July 16 policy 
spells out the practice followed by customs agents for years and across 
administration. But that just isn't true. The Customs Directive that 
governed border searches of documents through the end of the Clinton 
Administration stated that Customs agents could glance at documents--
but not read them--``to see if they appear to be merchandise.'' At that 
point, ``reasonable suspicion [was] required for read and continued 
detention'' of the documents. The reading of personal correspondence 
other than merchandise was expressly prohibited. This administration's 
policy authorizing ``review and analysis'' of any and all electronic 
documents without a shred of suspicion thus represents a 180 degree 
turnaround from previous policy.
  DHS alternatively defends its policy by arguing that the authority to 
conduct suspicionless searches of Americans' laptops is necessary to 
capture terrorists and criminals. Yet the few specific examples DHS has 
seen fit to give have all been cases in which the search was anything 
but suspicionless. For example, in one instance DHS has cited, the 
laptop search took place after customs agents received a tip that the 
traveler was a smuggler and discovered $79,000 in unlawful U.S. 
currency in his belongings. Despite many opportunities to do so, DHS 
has yet to identify a single example in which a search that was 
conducted ``absent individualized suspicion'' resulted in the 
apprehension of a dangerous criminal or terrorist.
  This brings me to my next point. Both Secretary Chertoff and the 
Deputy Commissioner for Customs and Border Protection have tried to 
downplay the extent of privacy violations by pointing out that DHS has 
limited resources for conducting electronic searches at the border. 
That may be true, but it hardly justifies suspicionless searches. To 
the contrary, the limited nature of these resources makes it all the 
more important to direct them toward people who actually do present 
some objective basis for suspicion. As the DHS examples confirm, these 
are the cases in which electronic searches are most likely to yield 
results. Using our limited resources to search the laptops of law-
abiding Americans who present no basis for suspicion is frankly 
irresponsible.
  This is not simply a matter of what the Constitution protects or 
allows. In fact, a few lower courts have agreed with the administration 
that the Fourth Amendment does not protect Americans against 
suspicionless searches of their laptops at the border. I happen to 
believe that these decisions incorrectly applied Supreme Court 
precedent, but ultimately, that is beside the point. Not everything 
that comports with the Constitution is sound policy. A government 
practice can satisfy minimum constitutional requirements and still 
violate Americans' expectations for what they want and deserve from 
their government. In those cases, it is up to Congress to act.
  The bill I am introducing today would require DHS agents to have 
reasonable suspicion before searching the contents of laptops or other 
electronic equipment carried by U.S. citizens or other lawful residents 
of the U.S. ``Reasonable suspicion'' is a lower standard than 
``probable cause''; it simply requires DHS to have an objective basis 
for suspecting that a particular person is engaged in illegal behavior. 
No less should be required when the government seeks to encroach on 
such a significant privacy interest.
  Like the current DHS policy, the bill I am introducing requires 
probable cause in order for DHS agents to seize electronic equipment 
lent. Unlike the current policy, however, the bill defines ``seize'' in 
a manner than is consistent with both legal precedent and common sense. 
If DHS keeps your laptop or any of its contents for longer than 24 
hours, there has clearly been a seizure, and the bill recognizes this. 
The bill also reinforces the probable cause requirement by requiring 
DHS to obtain a warrant, while allowing DHS to hold on to the equipment 
pending a ruling on the warrant application.
  Most of the information DHS will review, even under a reasonable 
suspicion standard, will prove innocuous. Recognizing this, the bill 
contains provisions to protect law-abiding Americans' privacy by 
strictly limiting disclosure of information that DHS acquires through 
electronic border searches. The only disclosures that are permitted in 
the absence of warrant or court order are limited disclosures to other 
federal, state, or local government agencies. Those agencies in turn 
may apply for a warrant--or, if the laptop appears to contain foreign 
intelligence information, a Foreign Intelligence Surveillance Court 
Order--to seize the equipment.
  If DHS damages the electronic equipment in the course of a search, 
the

[[Page S9673]]

agency must compensate the owner for any resulting economic loss. The 
bill requires DHS to establish an administrative claims process to that 
end. Awards will be paid from agency funds, ensuring that the bill is 
deficit-neutral.
  The bill prohibits profiling based on race, ethnic, religion, or 
national origin. Profiling based on these characteristics has no place 
in our society. It is repugnant to our values as a pluralistic nation, 
and it is counterproductive as a matter of law enforcement. At the 
hearing I held on this issue, all of the witnesses, those invited by 
myself and those invited by Senator Brownback, agreed at that point.
  Finally, the bill contains provisions to ensure that DHS provides the 
information about its policies and practices that Congress needs and 
that the public is entitled to have. The agency must provide Congress 
and the public with any past, existing, or future policies relating to 
electronic border searches, as well as information about the 
implementation of those policies. Our ability to know what DHS claims 
the right to do at the border should never depend on whether DHS 
chooses to send a witness to a congressional hearing.
  Taken together, these provisions reverse this administration's 
departure from previous policy and, more importantly, bring the 
government's practices at the border back in line with the reasonable 
expectations of law-abiding Americans. Furthermore, they enhance the 
security of our borders by focusing the government's resources where 
they can do the most good. And they will enable all of us in this body 
to look our constituents in the eyes and say, ``You're right--that 
doesn't happen in the United States of America.''
  Mr. President, I hope that my colleagues give this bill the 
enthusiastic support it deserves. I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3612

       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;

[[Page S9674]]

       (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.

[[Page S9675]]

       (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

[[Page S9676]]

     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.
                                 ______