A bill to place restrictions on searches and seizures of electronic devices at the border.

II 116TH CONGRESS 1ST SESSION S. 2694 To place restrictions on searches and seizures of electronic devices at the border. IN THE SENATE OF THE UNITED STATES OCTOBER 24, 2019 Mr. LEAHY (for himself and Mr. DAINES) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To place restrictions on searches and seizures of electronic devices at the border. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. DEFINITIONS. 3 In this Act: 4 (1) FORENSIC SEARCH.—The term ‘‘forensic 5 search’’ means any examination of an electronic de- 6 vice that— 7 (A) is conducted for longer than 4 hours; 8 (B) is conducted with the assistance of any 9 other electronic device, electronic equipment, or 10 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 2 •S 2694 IS software, including software enabling the 1 searching, scanning, or indexing of the contents 2 of the device; 3 (C) involves the copying or documentation 4 of data stored on the device; or 5 (D) is conducted in any other manner that 6 would not fall within the definition of a manual 7 search or a search described in section 4(1). 8 (2) MANUAL SEARCH.—The term ‘‘manual 9 search’’ means the examination of an electronic de- 10 vice that is conducted manually without— 11 (A) the assistance of any other electronic 12 device, electronic equipment, or software, in- 13 cluding the use of special search programs; or 14 (B) the entry of any password, passcode, 15 fingerprint, account information, or other bio- 16 metric identifier that permits access to data 17 otherwise protected by technological means. 18 SEC. 2. SEARCHES AND SEIZURES OF ELECTRONIC DE- 19 VICES AT THE BORDER. 20 (a) IN GENERAL.—Except as otherwise provided in 21 this section, an official of the Department of Homeland 22 Security may not search or seize an electronic device 23 transported by a United States person at the international 24 border. 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 3 •S 2694 IS (b) MANUAL SEARCHES.—An electronic device trans- 1 ported by an individual at the border may be subject to 2 a manual search by an official of the Department of 3 Homeland Security, in accordance with the procedures de- 4 scribed in subsection (f) if the official has a reasonable 5 suspicion that— 6 (1) the individual transporting the device— 7 (A) is carrying contraband or is otherwise 8 transporting goods or persons in violation of the 9 laws enforced by the Department of Homeland 10 Security; or 11 (B) is inadmissible or otherwise not enti- 12 tled to enter the United States under such laws; 13 and 14 (2) the device contains information or evidence 15 relevant to a violation referred to in paragraph (1). 16 (c) SEIZURES.—An electronic device transported by 17 an individual at the border may be seized by an official 18 of the Department of Homeland Security, in accordance 19 with the procedures described in subsection (f) if the offi- 20 cial has probable cause to believe that— 21 (1) the individual— 22 (A) is carrying contraband or is otherwise 23 transporting goods or persons in violation of the 24 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 4 •S 2694 IS laws enforced by the Department of Homeland 1 Security; 2 (B) is inadmissible or otherwise not enti- 3 tled to enter the United States under such laws; 4 or 5 (C) is in violation of any Federal or State 6 law punishable by more than 1 year; and 7 (2) the electronic device contains information or 8 evidence relevant to a violation referred to in para- 9 graph (1). 10 (d) FORENSIC SEARCHES.—An electronic device 11 transported by an individual at the border may be subject 12 to forensic search only pursuant to a warrant issued using 13 the procedures described in the Federal Rules of Criminal 14 Procedure (or, in the case of a State court, issued using 15 State warrant procedures) by a court of competent juris- 16 diction. 17 (e) ADMISSIBILITY OF EVIDENCE.—Information ob- 18 tained or derived pursuant to a violation of this section— 19 (1) may not be used as the basis for dem- 20 onstrating the inadmissibility or removability of an 21 individual; and 22 (2) may not be received in evidence or disclosed 23 in any trial, hearing, or other proceeding in or be- 24 fore any court, grand jury, department, officer, 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 5 •S 2694 IS agency, regulatory body, legislative committee, or 1 other authority of the United States, a State, or a 2 political subdivision of a State. 3 (f) PROCEDURES FOR SEARCHES AND SEIZURES OF 4 ELECTRONIC DEVICES AT THE BORDER.— 5 (1) INITIATING A SEARCH OR SEIZURE.—Prior 6 to initiating any search or seizure of an electronic 7 device transported by an individual at the border 8 pursuant to the authority under this section, the of- 9 ficial of the Department of Homeland Security initi- 10 ating the search or seizure shall— 11 (A) obtain supervisory approval to engage 12 in the search or seizure; and 13 (B) record— 14 (i) the nature of the reasonable sus- 15 picion or probable cause and the specific 16 facts or bases for that determination; and 17 (ii) the age, sex, country of origin, 18 citizenship or immigration status, eth- 19 nicity, and race of the individual trans- 20 porting the electronic device. 21 (2) CONDITIONS FOR A MANUAL SEARCH.— 22 (A) PRESENCE OF THE INDIVIDUAL.—The 23 individual transporting the electronic device 24 subject to a manual search shall be permitted 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 6 •S 2694 IS to remain present during the search of the elec- 1 tronic device. 2 (B) SCOPE OF MANUAL SEARCH.—A man- 3 ual search— 4 (i) shall be conducted by an official of 5 the Department of Homeland Security 6 manually, without the assistance of any 7 electronic device or electronic equipment; 8 (ii) shall be tailored to the reasonable 9 suspicion recorded by the official of the 10 Department of Homeland Security before 11 the manual search began; 12 (iii) shall be confined to documents, 13 files, or other electronic information stored 14 on the electronic device that could reason- 15 ably contain information or evidence rel- 16 evant to a violation described in paragraph 17 (3) and are accessible without the entry of 18 any password, passcode, fingerprint, or 19 other biometric identifier; and 20 (iv) may not exceed a total of 4 hours. 21 (C) DESTRUCTION OF INADVERTENTLY 22 COLLECTED INFORMATION.—Unless an official 23 of the Department of Homeland Security deter- 24 mines, not later than 5 days after a manual 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 7 •S 2694 IS search, that information obtained from the elec- 1 tronic device is evidence of a crime or immigra- 2 tion violation, an official of the Department 3 shall delete any information collected from or 4 about the device from Department records not 5 later than 10 days after the date on which the 6 search was conducted. 7 (3) CONDITIONS FOR A SEIZURE OF AN ELEC- 8 TRONIC DEVICE.— 9 (A) REQUIREMENT FOR WARRANT OR 10 COURT ORDER APPROVING SEIZURE.— 11 (i) IN GENERAL.—Not later than 48 12 hours after an official of the Department 13 of Homeland Security seizes an electronic 14 device pursuant to the authority under this 15 section, an official of the Department shall 16 seek a warrant or order approving the sei- 17 zure under the procedures described in the 18 Federal Rules of Criminal Procedure (or, 19 in the case of a State court, issued using 20 State warrant procedures). 21 (ii) NO WARRANT OR ORDER.—If a 22 warrant or order is denied or fails to be 23 issued after the seizure, an official of the 24 Department of Homeland Security shall 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 8 •S 2694 IS immediately return the electronic device to 1 the individual from whom it was seized. 2 (B) SUSPENSION AND PROHIBITION OF 3 SEARCH.—An electronic device seized at the 4 border pursuant to the authority under this sec- 5 tion may not be accessed or searched by any 6 governmental entity before the issuance of a 7 warrant or court order authorizing the access- 8 ing or search of the device. 9 SEC. 3. REPORTING. 10 The Secretary of Homeland Security shall submit an 11 annual report to the Committee on the Judiciary of the 12 Senate, the Committee on the Judiciary of the House of 13 Representatives, the Committee on Homeland Security 14 and Governmental Affairs of the Senate, and the Com- 15 mittee on Homeland Security of the House of Representa- 16 tives that details— 17 (1) the number of electronic devices subject to 18 a manual search pursuant to the authority under 19 section 2; 20 (2) the number of electronic devices subject to 21 a forensic search pursuant to the authority under 22 section 2; 23 (3) the number of electronic devices seized pur- 24 suant to the authority under section 2; 25 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 9 •S 2694 IS (4) statistics regarding the age, sex, country of 1 origin, citizenship or immigration status, ethnicity, 2 and race of the individuals transporting electronic 3 devices that were subject to a manual search, a fo- 4 rensic search, or seizure; 5 (5) the number of individuals whose electronic 6 devices were searched or seized pursuant to the au- 7 thority under section 2 and were later charged with 8 a criminal offense based on information obtained 9 from such search or seizure; and 10 (6) the number of individuals detained for re- 11 fusing to disclose, or provide consent to access, the 12 digital contents of any electronic equipment in the 13 possession of an individual at the border, including 14 the length of time such individual was detained by 15 the Department of Homeland Security. 16 SEC. 4. SAVINGS PROVISIONS. 17 Nothing in this Act may be construed— 18 (1) to affect the authority of any law enforce- 19 ment official to conduct any other lawful search 20 predicated on an established exception, other than 21 the exception for border searches, to the warrant re- 22 quirement of the Fourth Amendment to the Con- 23 stitution of the United States; or 24 VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS 10 •S 2694 IS (2) to require the individual subject to a search 1 of his or her electronic device to provide any pass- 2 word, passcode, fingerprint, faceprint, or other bio- 3 metric identifier without his or her consent, in viola- 4 tion of the Fifth Amendment to the Constitution of 5 the United States. 6 Æ VerDate Sep 11 2014 03:19 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S2694.IS S2694 kjohnson on DSK79L0C42 with BILLS