[Congressional Record Volume 164, Number 29 (Wednesday, February 14, 2018)]
[Senate]
[Pages S1110-S1112]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1993. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment
intended to be proposed by him to the bill H.R. 2579, to amend the
Internal Revenue Code of 1986 to allow the premium tax credit with
respect to unsubsidized COBRA continuation coverage; which was ordered
to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE __--PROTECTING DATA AT THE BORDER
SEC. _01. SHORT TITLE.
This title may be cited as the ``Protecting Data at the
Border Act''.
SEC. _02. 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. _03. SCOPE.
Nothing in this title 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.).
SEC. _04. DEFINITIONS.
As used in this title--
(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. _05. 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
[[Page S1111]]
(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. _06. 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
title, 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. _07. 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. _08. AUDIT AND REPORTING REQUIREMENTS.
In March of each year, the Secretary of Homeland Security
shall submit to Congress and make publicly available on the
Web site 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 _05(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
_05(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 _05(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 _05.
(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--
[[Page S1112]]
(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.
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