Protecting Data at the Border Act

I 116TH CONGRESS 1ST SESSION H. R. 2925 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 HOUSE OF REPRESENTATIVES MAY 22, 2019 Mr. TED LIEU of California (for himself, Ms. DELBENE, Mr. DESAULNIER, Mr. ESPAILLAT, Ms. GABBARD, Ms. NORTON, Mr. RUSH, and Ms. SCHA- KOWSKY) introduced the following bill; which was referred to the Com- mittee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting Data at 4 the Border Act’’. 5 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 2 •HR 2925 IH SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) United States persons have a reasonable ex- 3 pectation of privacy in the digital contents of their 4 electronic equipment, the digital contents of their 5 online accounts, and the nature of their online pres- 6 ence. 7 (2) The Supreme Court of the United States 8 recognized in Riley v. California, 134 S. Ct. 2473 9 (2014), the extraordinary privacy interests in elec- 10 tronic equipment like cell phones. 11 (3) The privacy interest of United States per- 12 sons in the digital contents of their electronic equip- 13 ment, the digital contents of their online accounts, 14 and the nature of their online presence differs in 15 both degree and kind from their privacy interest in 16 closed containers. 17 (4) Accessing the digital contents of electronic 18 equipment, accessing the digital contents of an on- 19 line account, or obtaining information regarding the 20 nature of the online presence of a United States per- 21 son entering or exiting the United States, without a 22 lawful warrant based on probable cause, is unreason- 23 able under the Fourth Amendment to the Constitu- 24 tion of the United States. 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 3 •HR 2925 IH SEC. 3. DEFINITIONS. 1 As used in this Act— 2 (1) the term ‘‘access credential’’ includes a 3 username, password, PIN number, fingerprint, or bi- 4 ometric indicator; 5 (2) the term ‘‘border’’ means the international 6 border of the United States and the functional 7 equivalent of such border; 8 (3) the term ‘‘digital contents’’ means any 9 signs, signals, writing, images, sounds, data, or in- 10 telligence of any nature transmitted in whole or in 11 part by electronic equipment, or stored in electronic 12 equipment or an online account; 13 (4) the term ‘‘electronic communication service’’ 14 has the meaning given that term in section 2510 of 15 title 18, United States Code; 16 (5) the term ‘‘electronic equipment’’ has the 17 meaning given the term ‘‘computer’’ in section 18 1030(e) of title 18, United States Code; 19 (6) the term ‘‘Governmental entity’’ means a 20 department or agency of the United States (includ- 21 ing any officer, employee, or contractor or other 22 agent thereof); 23 (7) the term ‘‘online account’’ means an online 24 account with an electronic communication service or 25 remote computing service; 26 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 4 •HR 2925 IH (8) the term ‘‘online account information’’ 1 means the screen name or other identifier or infor- 2 mation that would allow a Governmental entity to 3 identify the online presence of an individual; 4 (9) the term ‘‘remote computing service’’ has 5 the meaning given that term in section 2711 of title 6 18, United States Code; and 7 (10) the term ‘‘United States person’’ means an 8 individual who is a United States person, as defined 9 in section 101 of the Foreign Intelligence Surveil- 10 lance Act of 1978 (50 U.S.C. 1801). 11 SEC. 4. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL 12 DATA AT THE BORDER. 13 (a) STANDARD.—Subject to subsection (b), a Govern- 14 mental entity may not— 15 (1) access the digital contents of any electronic 16 equipment belonging to or in the possession of a 17 United States person at the border without a valid 18 warrant supported by probable cause issued using 19 the procedures described in the Federal Rules of 20 Criminal Procedure by a court of competent jurisdic- 21 tion; 22 (2) deny entry into or exit from the United 23 States by a United States person based on a refusal 24 by the United States person to— 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 5 •HR 2925 IH (A) disclose an access credential that 1 would enable access to the digital contents of 2 electronic equipment or the digital contents of 3 an online account; 4 (B) provide access to the digital contents 5 of electronic equipment or the digital contents 6 of an online account; or 7 (C) provide online account information; or 8 (3) delay entry into or exit from the United 9 States by a United States person for longer than the 10 period of time, which may not exceed 4 hours, nec- 11 essary to determine whether the United States per- 12 son will, in a manner in accordance with subsection 13 (c), consensually provide an access credential, ac- 14 cess, or online account information, as described in 15 subparagraphs (A), (B), and (C) of paragraph (2). 16 (b) EMERGENCY EXCEPTIONS.— 17 (1) EMERGENCY SITUATIONS GENERALLY.— 18 (A) IN GENERAL.—An investigative or law 19 enforcement officer of a Governmental entity 20 who is designated by the Secretary of Home- 21 land Security for purposes of this paragraph 22 may access the digital contents of electronic 23 equipment belonging to or in possession of a 24 United States person at the border without a 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 6 •HR 2925 IH warrant described in subsection (a)(1) if the in- 1 vestigative or law enforcement officer— 2 (i) reasonably determines that— 3 (I) an emergency situation exists 4 that involves— 5 (aa) immediate danger of 6 death or serious physical injury 7 to any person; 8 (bb) conspiratorial activities 9 threatening the national security 10 interest of the United States; or 11 (cc) conspiratorial activities 12 characteristic of organized crime; 13 (II) the emergency situation de- 14 scribed in subclause (I) requires ac- 15 cess to the digital contents of the elec- 16 tronic equipment before a warrant de- 17 scribed in subsection (a)(1) author- 18 izing such access can, with due dili- 19 gence, be obtained; and 20 (III) there are grounds upon 21 which a warrant described in sub- 22 section (a)(1) could be issued author- 23 izing such access; and 24 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 7 •HR 2925 IH (ii) makes an application in accord- 1 ance with this section for a warrant de- 2 scribed in subsection (a)(1) as soon as 3 practicable, but not later than 7 days after 4 the investigative or law enforcement officer 5 accesses the digital contents under the au- 6 thority under this subparagraph. 7 (B) WARRANT NOT OBTAINED.—If an ap- 8 plication for a warrant described in subpara- 9 graph (A)(ii) is denied, or in any other case in 10 which an investigative or law enforcement offi- 11 cer accesses the digital contents of electronic 12 equipment belonging to or in possession of a 13 United States person at the border without a 14 warrant under the emergency authority under 15 subparagraph (A) and a warrant authorizing 16 the access is not obtained— 17 (i) any copy of the digital contents in 18 the custody or control of a Governmental 19 entity shall immediately be destroyed; 20 (ii) the digital contents, and any in- 21 formation derived from the digital con- 22 tents, may not be disclosed to any Govern- 23 mental entity or a State or local govern- 24 ment; and 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 8 •HR 2925 IH (iii) the Governmental entity employ- 1 ing the investigative or law enforcement of- 2 ficer that accessed the digital contents 3 shall notify the United States person that 4 any copy of the digital contents has been 5 destroyed. 6 (2) PROTECTION OF PUBLIC SAFETY AND 7 HEALTH.—A Governmental entity may access the 8 digital contents of electronic equipment belonging to 9 or in possession of a United States person at the 10 border without a warrant described in subsection 11 (a)(1) if the access is— 12 (A) necessary for the provision of fire, 13 medical, public safety, or other emergency serv- 14 ices; and 15 (B) unrelated to the investigation of a pos- 16 sible crime or other violation of the law. 17 (c) INFORMED CONSENT IN WRITING.— 18 (1) NOTICE.— 19 (A) IN GENERAL.—A Governmental entity 20 shall provide the notice described in subpara- 21 graph (B) before requesting that a United 22 States person at the border— 23 (i) provide consent to access the dig- 24 ital contents of any electronic equipment 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 9 •HR 2925 IH belonging to or in the possession of or the 1 digital contents of an online account of the 2 United States person; 3 (ii) disclose an access credential that 4 would enable access to the digital contents 5 of electronic equipment or the digital con- 6 tents of an online account of the United 7 States person; 8 (iii) provide access to the digital con- 9 tents of electronic equipment or the digital 10 contents of an online account of the United 11 States person; or 12 (iv) provide online account informa- 13 tion of the United States person. 14 (B) CONTENTS.—The notice described in 15 this subparagraph is written notice in a lan- 16 guage understood by the United States person 17 that the Governmental entity— 18 (i) may not— 19 (I) compel access to the digital 20 contents of electronic equipment be- 21 longing to or in the possession of, the 22 digital contents of an online account 23 of, or the online account information 24 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 10 •HR 2925 IH of a United States person without a 1 valid warrant; 2 (II) deny entry into or exit from 3 the United States by the United 4 States person based on a refusal by 5 the United States person to— 6 (aa) disclose an access cre- 7 dential that would enable access 8 to the digital contents of elec- 9 tronic equipment or the digital 10 contents of an online account; 11 (bb) provide access to the 12 digital contents of electronic 13 equipment or the digital contents 14 of an online account; or 15 (cc) provide online account 16 information; or 17 (III) delay entry into or exit from 18 the United States by the United 19 States person for longer than the pe- 20 riod of time, which may not exceed 4 21 hours, necessary to determine whether 22 the United States person will consen- 23 sually provide an access credential, ac- 24 cess, or online account information, as 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 11 •HR 2925 IH described in items (aa), (bb), and (cc) 1 of subclause (II); and 2 (ii) if the Governmental entity has 3 probable cause that the electronic equip- 4 ment contains information that is relevant 5 to an allegation that the United States 6 person has committed a felony, may seize 7 electronic equipment belonging to or in the 8 possession of the United States person for 9 a period of time if the United States per- 10 son refuses to consensually provide access 11 to the digital contents of the electronic 12 equipment. 13 (2) CONSENT.— 14 (A) IN GENERAL.—A Governmental entity 15 shall obtain written consent described in sub- 16 paragraph (B) before— 17 (i) accessing, pursuant to the consent 18 of a United States person at the border 19 the digital contents of electronic equipment 20 belonging to or in the possession of or the 21 digital contents of an online account of the 22 United States person; 23 (ii) obtaining, pursuant to the consent 24 of a United States person at the border, an 25 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 12 •HR 2925 IH access credential of the United States per- 1 son that would enable access to the digital 2 contents of electronic equipment or the 3 digital contents of an online account; or 4 (iii) obtaining, pursuant to the con- 5 sent of a United States person at the bor- 6 der, online account information for an on- 7 line account of the United States person. 8 (B) CONTENTS OF WRITTEN CONSENT.— 9 Written consent described in this subparagraph 10 is written consent that— 11 (i) indicates the United States person 12 understands the protections and limitations 13 described in paragraph (1)(B); 14 (ii) states the United States person 15 is— 16 (I) providing consent to the Gov- 17 ernmental entity to access certain dig- 18 ital contents or consensually disclosing 19 an access credential; or 20 (II) consensually providing online 21 account information; and 22 (iii) specifies the digital contents, ac- 23 cess credential, or online account informa- 24 VerDate Sep 11 2014 02:12 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2925.IH H2925 kjohnson on DSK79L0C42 with BILLS 13 •HR 2925 IH tion with respect to which the United 1 States person is providing consent. 2 (d) RETENTION OF DIGITAL CONTENTS.— 3 (1) LAWFUL ACCESS.—A Governmental entity 4 that obtains access to the digital contents of elec- 5 tronic equipment, the digital contents of an online 6 [Text truncated for display. 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