1.This Act may be cited as the
Border Security Search Accountability
Act of 2011
.
2.Rule with respect
to border security searches of electronic devices
(a)Not later than 180
days after the date of the enactment of this Act, the Secretary, acting through
the Commissioner of United States Customs and Border Protection, in
coordination with the Assistant Secretary of Homeland Security for United
States Immigration and Customs Enforcement and the senior official appointed
pursuant to section 222 of the Homeland Security Act of 2002 (6 U.S.C. 142),
shall issue a rule with respect to the scope of and procedural and
recordkeeping requirements associated with border security searches of
electronic devices.
(b)The
rule issued pursuant to subsection (a) shall include the following:
(1)A requirement that information collected
during a border security search of an electronic device that is determined to
be commercial information, including trade secrets, information subject to
attorney-client privilege, information subject to doctor-patient privilege, or
information subject to another privilege or protection shall be handled
consistent with the laws, rules, and regulations governing such information and
shall not be shared with a Federal, State, local, tribal, or foreign agency
unless it is determined that such agency has the mechanisms in place to comply
with such laws, rules, and regulations.
(2)A
requirement that authorized agents, to the greatest extent practicable, conduct
all border security searches of electronic devices in the presence of a
supervisor and, where appropriate, in the presence of the individuals whose
electronic devices are subject to such searches.
(3)A determination of the number of days that
an electronic device subjected to a border security search or the information
collected from such device may be retained, unless probable cause exists, that
prohibits retention exceeding the period necessary to translate, decrypt, or
reasonably search such device or information and that requires such information
to be destroyed if in the custody of an authorized agent after such number of
days.
(4)A requirement that if information collected
from an electronic device subjected to a border security search is copied,
shared, retained, or entered into an electronic database, the individual from
whose electronic device such information is collected shall receive written
notification of such copying, sharing, retention, or entry unless such
notification would hinder an investigation involving national security or would
meet another criteria established by the Secretary in the rule.
(5)A requirement that an individual subjected
to a border security search of an electronic device shall receive a receipt for
such device if such device is removed from the possession of such
individual.
(6)A requirement that an individual subjected
to a border security search of an electronic device shall receive notice of how
to report abuses or concerns and how to seek redress from the Department of
Homeland Security.
(7)A requirement that information on the
rights of individuals with respect to border security searches and Department
of Homeland Security redress procedures shall be posted at all ports of entry
in locations that are likely to be viewed by individuals subject to border
security searches.
(8)A
privacy impact assessment of the rule, as prepared by the senior official
appointed pursuant to section 222 of the Homeland Security Act of 2002, that
includes recommendations with respect to the copying, sharing, retention, and
entry into an electronic database of personally identifiable information
collected from electronic devices subjected to a border security search.
(9)A
civil liberties impact assessment of the rule, as prepared by the Officer for
Civil Rights and Civil Liberties of the Department of Homeland Security.
3.Training and
auditing with respect to the rule
(a)The Secretary shall provide each authorized
agent with appropriate training to conduct border security searches of
electronic devices in accordance with the rule issued pursuant to section 2.
The training shall include instruction on constitutional, privacy, civil
rights, and civil liberties issues related to such searches.
(b)The Secretary, acting through the Inspector
General of the Department of Homeland Security, shall develop and annually
administer an auditing mechanism to review whether authorized agents are
conducting border security searches of electronic devices in accordance with
the rule issued pursuant to section 2.
4.Not later than 180 days after the effective
date of the rule issued pursuant to section 2, and quarterly thereafter, the
Secretary shall submit to the Committee on Homeland Security of the House of
Representatives and to the Committee on Homeland Security and Governmental
Affairs of the Senate a report that shall include the following:
(1)A
description of the activities of authorized agents with respect to border
security searches of electronic devices.
(2)A
description of the manner in which the Department of Homeland Security has
complied with this Act.
(3)The number, by
port of entry, of border security searches of electronic devices conducted
during the reporting period.
(4)The number, by
port of entry, of instances during the reporting period that information from
an electronic device subjected to a border security search was retained,
copied, shared, or entered in an electronic database, including the number of
electronic devices retained as the result of a border security search.
(5)The race,
ethnicity, national origin, and citizenship of each individual whose electronic
device was subjected to a border security search during the reporting period,
to determine the existence or absence of racial profiling.
(6)The number of
instances during the reporting period that information collected from an
electronic device subjected to a border security search was referred to a law
enforcement or intelligence agency for further action, including whether such
information resulted in a prosecution or conviction.
5.In this Act, the following definitions
apply:
(1)The term
authorized agent means an agent, officer, or official of United
States Customs and Border Protection, United States Immigration and Customs
Enforcement, or any other office or agency of the Department of Homeland
Security who is authorized to conduct a border security search.
(2)The term border security search means a
search by an authorized agent of persons, baggage, or cargo entering,
departing, or passing through the United States through any port of
entry.
(3)The term
electronic device means an electronic, magnetic, optical,
electrochemical, or other high-speed data processing device performing logical,
arithmetic, or storage functions, such as a computer, a cellular telephone, or
any other device used for electronic communication or for storing electronic,
digital or analog data, and which includes any data storage facility or
communications facility directly related to or operating in conjunction with
such device.
(4)The
term Secretary means the Secretary of Homeland Security.