[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2216-S2217]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WYDEN (for himself and Mr. Paul):
  S. 823. 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; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. WYDEN. Mr. President, today I, along with my colleague Senator 
Paul from Kentucky, am introducing the Protecting Data at the Border 
Act, a bill that protects Americans and U.S. Permanent Residents from 
warrantless searches of their electronic devices at the border.
  1n 2014, the Supreme Court established in California v. Riley that 
law enforcement agencies must obtain a probable cause search warrant 
before they can search someone's phone or laptop during a ``search 
incident to arrest.'' Prior to that decision, law enforcement agencies 
around the country routinely engaged in warrantless searches of phones 
and other electronic devices. The Supreme Court rightly recognized that 
we need new, stronger rules to protect digital information.
  Although the warrant protections from Riley have been the law of the 
land for the last three years, a significant loophole has remained: the 
border. The Riley decision left unresolved the question of whether or 
not U.S. Customs can search the smartphones and laptops of U.S. persons 
as they leave the country and return home. This is not a theoretical 
concern. According to recent statistics provided by Customs and Border 
Protection, searches of cellphones by border agents has exploded, 
growing fivefold in just one

[[Page S2217]]

year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016. Five-
thousand devices were searched this last February alone, more than in 
all of 2015.
  My colleague, Senator Paul and I intend to close this loophole, 
ensuring that U.S. persons crossing the border do not have lesser 
digital privacy rights than individuals who are arrested inside the 
United States.
  This bill has four main components.
  First, it requires that law enforcement agencies obtain a probable 
cause warrant before they can search the laptop, smartphone or other 
electronic device belonging to a U.S. person at the border. The bill 
includes an emergency exception to this warrant requirement, modeled 
after USA Freedom Act section 102, which became law in 2015.
  Second, it requires informed, written consent before the government 
may request and obtain voluntary assistance from a U.S. person 
accessing data on a locked device or account, such as by disclosing 
their password or otherwise providing access. The bill also prohibits 
the government from delaying or denying entry to a U.S. person if he or 
she refuses to provide such assistance.
  Third, it requires that the government obtain a warrant before it can 
copy and retain a U.S. person's data, even if the data has been 
collected without a warrant, during an emergency.
  Fourth, it requires that the government create and publish statistics 
on the electronic border searches they conduct.
  Passage of this bill would ensure that the important privacy rights 
recognized by the Supreme Court in Riley also apply at the border, 
while still enabling law enforcement agencies continue to do the 
important work of keeping our country safe.
  I thank my colleague Senator Paul for his efforts on this bill, and I 
hope the Senate will consider our proposal quickly.
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