[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3612 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 3612
To protect citizens and legal residents of the United States from
unreasonable searches and seizures of electronic equipment at the
border, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 26 (legislative day, September 17), 2008
Mr. Feingold (for himself, Ms. Cantwell, Mr. Akaka, and Mr. Wyden)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To protect citizens and legal residents of the United States from
unreasonable searches and seizures of electronic equipment at the
border, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Travelers' Privacy Protection Act of
2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Law-abiding citizens and legal residents of the United
States, regardless of their race, ethnicity, religion, or
national origin, have a reasonable expectation of privacy in
the contents of their laptops, cell phones, personal handheld
devices, and other electronic equipment.
(2) The Department of Homeland Security has taken the
position that laptops and other electronic devices should not
be treated any differently from suitcases or other ``closed
containers'' and may be inspected by customs or immigration
agents at the border or in international airports without
suspicion of wrongdoing.
(3) The Department of Homeland Security published a policy
on July 16, 2008, allowing customs and immigration agents at
the border and in international airports to ``detain''
electronic equipment and ``review and analyze'' the contents of
electronic equipment ``absent individualized suspicion''. The
policy applies to any person entering the United States,
including citizens and other legal residents of the United
States returning from overseas travel.
(4) The privacy interest in the contents of a laptop
computer differs in kind and in amount from the privacy
interest in other ``closed containers'' for many reasons,
including the following:
(A) Unlike any other ``closed container'' that can
be transported across the border, laptops and similar
electronic devices can contain the equivalent of a full
library of information about a person, including
medical records, financial records, e-mails and other
personal and business correspondence, journals, and
privileged work product.
(B) Most people do not know, and cannot control,
all of the information contained on their laptops, such
as records of websites previously visited and deleted
files.
(C) Electronic search tools render searches of
electronic equipment more invasive than searches of
physical locations or objects.
(5) Requiring citizens and other legal residents of the
United States to submit to a government review and analysis of
thousands of pages of their most personal information without
any suspicion of wrongdoing is incompatible with the values of
liberty and personal freedom on which the United States was
founded.
(6) Searching the electronic equipment of persons for whom
no individualized suspicion exists is an inefficient and
ineffective use of limited law enforcement resources.
(7) Some citizens and legal residents of the United States
who have been subjected to electronic border searches have
reported being asked inappropriate questions about their
religious practices, political beliefs, or national allegiance,
indicating that the search may have been premised in part on
perceptions about their race, ethnicity, religion, or national
origin.
(8) Targeting citizens and legal residents of the United
States for electronic border searches based on race, ethnicity,
religion, or national origin is wholly ineffective as a matter
of law enforcement and repugnant to the values and
constitutional principles of the United States.
SEC. 3. DEFINITIONS.
In this Act:
(1) Border.--The term ``border'' includes the border and
the functional equivalent of the border.
(2) Copies.--The term ``copies'', as applied to the
contents of electronic equipment, includes printouts,
electronic copies or images, or photographs of, or notes
reproducing or describing, any contents of the electronic
equipment.
(3) Contraband.--The term ``contraband'' means any item the
importation of which is prohibited by the laws enforced by
officials of the Department of Homeland Security.
(4) Electronic equipment.--The term ``electronic
equipment'' has the meaning given the term ``computer'' in
section 1030(e)(1) of title 18, United States Code.
(5) Foreign intelligence information.--The term ``foreign
intelligence information'' means information described in
section 101(e)(1) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801(e)(1)).
(6) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(7) Officials of the department of homeland security.--The
term ``officials of the Department of Homeland Security'' means
officials and employees of the Department of Homeland Security,
including officials and employees of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement, who
are authorized to conduct searches at the border.
(8) Permanently destroyed.--The term ``permanently
destroyed'', with respect to information stored electronically,
means the information has been deleted and cannot be
reconstructed or retrieved through any means.
(9) Reasonable suspicion.--The term ``reasonable
suspicion'' means a suspicion that has a particularized and
objective basis.
(10) Search.--
(A) In general.--The term ``search'' means any
inspection of any of the contents of any electronic
equipment, including a visual scan of icons or file
names.
(B) Exception.--The term ``search'' does not
include asking a person to turn electronic equipment on
or off or to engage in similar actions to ensure that
the electronic equipment is not itself dangerous.
(11) Seizure.--
(A) In general.--The term ``seizure'' means the
retention of electronic equipment or copies of any
contents of electronic equipment for a period longer
than 24 hours.
(B) Exceptions.--The term ``seizure'' does not
include the retention of electronic equipment or copies
of any contents of electronic equipment--
(i) for a period of not more than 3 days
after the expiration of the 24-hour period
specified in section 5(e) if an application for
a warrant is being prepared or pending in a
district court of the United States;
(ii) for a period of not more than 21 days
after the expiration of the 24-hour period
specified in section 5(e) if an application for
an order from the Foreign Intelligence
Surveillance Court with respect to such
equipment or copies is being prepared; or
(iii) if an application for an order from
the Foreign Intelligence Surveillance Court
with respect to such equipment or copies is
pending before that Court.
(12) United states resident.--The term ``United States
resident'' means a United States citizen, an alien lawfully
admitted for permanent residence under section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255), or a
nonimmigrant alien described in section 101(a)(15) of such Act
(8 U.S.C. 1101(a)(15)) who is lawfully residing in the United
States.
SEC. 4. STANDARDS FOR SEARCHES AND SEIZURES.
(a) Searches.--Except as provided in subsection (c), electronic
equipment transported by a United States resident may be searched at
the border only if an official of the Department of Homeland Security
has a reasonable suspicion that the resident--
(1) is carrying contraband or is otherwise transporting
goods or persons in violation of the laws enforced by officials
of the Department of Homeland Security; or
(2) is inadmissible or otherwise not entitled to enter the
United States under the laws enforced by officials of the
Department of Homeland Security.
(b) Seizures.--Except as provided in subsection (c), electronic
equipment transported by a United States resident may be seized at the
border only if--
(1) the Secretary of Homeland Security obtains a warrant
based on probable cause to believe that the equipment contains
information or evidence relevant to a violation of any law
enforced by the Department of Homeland Security;
(2) another Federal, State, or local law enforcement agency
obtains a warrant based on probable cause to believe that the
equipment contains information or evidence relevant to a
violation of any law enforced by that agency; or
(3) an agency or department of the United States obtains an
order from the Foreign Intelligence Surveillance Court
authorizing the seizure of foreign intelligence information.
(c) Exceptions.--Nothing in this Act shall be construed to affect
the authority of any law enforcement official to conduct a search
incident to arrest, a search based upon voluntary consent, or any other
search predicated on an established exception, other than the exception
for border searches, to the warrant requirement of the fourth amendment
to the Constitution of the United States.
SEC. 5. PROCEDURES FOR SEARCHES.
(a) Initiating Search.--Before beginning a search of electronic
equipment transported by a United States resident at the border, the
official of the Department of Homeland Security initiating the search
shall--
(1) obtain supervisory approval to engage in the search;
(2) record--
(A) the nature of the reasonable suspicion and the
specific basis or bases for that suspicion;
(B) if travel patterns are cited as a basis for
suspicion, the specific geographic area or areas of
concern to which the resident traveled;
(C) the age of the resident;
(D) the sex of the resident;
(E) the country of origin of the resident;
(F) the citizenship or immigration status of the
resident; and
(G) the race or ethnicity of the resident, as
perceived by the official of the Department of Homeland
Security initiating the search.
(b) Conditions of Search.--
(1) Presence of united states resident.--The United States
resident transporting the electronic equipment to be searched
shall be permitted to remain present during the search, whether
the search occurs on- or off-site.
(2) Presence of officials of the department of homeland
security.--Not fewer than 2 officials of the Department of
Homeland Security, including 1 supervisor, shall be present
during the search.
(3) Environment.--The search shall take place in a secure
environment where only the United States resident transporting
the electronic equipment and officials of the Department of
Homeland Security are able to view the contents of the
electronic equipment.
(c) Scope of Search.--The search shall--
(1) be tailored to the reasonable suspicion recorded by the
official of the Department of Homeland Security before the
search began; and
(2) be confined to documents, files, or other stored
electronic information that could reasonably contain--
(A) contraband;
(B) evidence that the United States resident is
transporting goods or persons in violation of the laws
enforced by the Department of Homeland Security; or
(C) evidence that the person is inadmissible or
otherwise not entitled to enter the United States under
the laws enforced by officials of the Department of
Homeland Security.
(d) Record of Search.--At the time of the search, the official or
agent of the Department of Homeland Security conducting the search
shall record a detailed description of the search conducted, including
the documents, files, or other stored electronic information searched.
(e) Conclusion of Warrantless Search.--At the conclusion of the 24-
hour period following commencement of a search of electronic equipment
or the contents of electronic equipment at the border--
(1) no further search of the electronic equipment or any
contents of the electronic equipment is permitted without a
warrant or an order from the Foreign Intelligence Surveillance
Court authorizing the seizure of the electronic equipment or
the contents of the electronic equipment; and
(2) except as specified in section 6, the electronic
equipment shall immediately be returned to the United States
resident and any copies of the contents of the electronic
equipment shall be permanently destroyed not later than 3 days
after the conclusion of the search.
SEC. 6. PROCEDURES FOR SEIZURES.
(a) Application for Warrant by the Department of Homeland
Security.--If, after completing a search under section 5, an official
of the Department of Homeland Security has probable cause to believe
that the electronic equipment of a United States resident contains
information or evidence relevant to a violation of any law enforced by
the Department, the Secretary of Homeland Security shall immediately
apply for a warrant describing with particularity the electronic
equipment or contents of the electronic equipment to be searched (if
further search is required) and the contents to be seized.
(b) Disclosure of Information and Application by Other Federal,
State, or Local Government Departments or Agencies.--
(1) Disclosure to other agencies or departments.--
(A) In general.--If an official of the Department
of Homeland Security discovers, during a search that
complies with the requirements of section 5,
information or evidence relevant to a potential
violation of a law with respect to which another
Federal, State, or local law enforcement agency has
jurisdiction, the Secretary of Homeland Security may
transmit a copy of that information or evidence to that
law enforcement agency.
(B) Foreign intelligence information.--If an
official the Department of Homeland Security discovers,
during a search that complies with the requirements of
section 5, information that the Secretary of Homeland
Security believes to be foreign intelligence
information, the Secretary may transmit a copy of that
information to the appropriate agency or department of
the United States.
(2) Prohibition on transmission of other information.--The
Secretary may not transmit any information or evidence with
respect to the contents of the electronic equipment other than
the information or evidence described in paragraph (1).
(3) Application for warrant or court order.--
(A) In general.--A Federal, State, or local law
enforcement agency to which the Secretary of Homeland
Security transmits a copy of information or evidence
pursuant to paragraph (1)(A) may use the information or
evidence as the basis for an application for a warrant
authorizing the seizure of the electronic equipment or
any other contents of the electronic equipment.
(B) Foreign intelligence information.--An agency or
department of the United States to which the Secretary
transmits a copy of information pursuant to paragraph
(1)(B) may use the information as the basis for an
application for an order from the Foreign Intelligence
Surveillance Court authorizing the seizure of the
electronic equipment or any contents of the electronic
equipment.
(c) Retention While an Application for a Warrant or a Court Order
Is Pending.--
(1) Electronic equipment.--The Secretary of Homeland
Security--
(A) may retain possession of the electronic
equipment or copies of any contents of the electronic
equipment--
(i) for a period not to exceed 3 days after
the expiration of the 24-hour period specified
in section 5(e) if an application for a warrant
described in subsection (a) or subsection
(b)(3)(A) is being prepared or pending;
(ii) for a period not to exceed 21 days
after the expiration of the 24-hour period
specified in section 5(e) while an application
for an order from the Foreign Intelligence
Surveillance Court described in subsection
(b)(3)(B) is being prepared; or
(iii) while an application for an order
from the Foreign Intelligence Surveillance
Court described in subsection (b)(3)(B) is
pending before that Court; and
(B) may not further search the electronic equipment
or the contents of the electronic equipment during a
period described in subparagraph (A).
(2) Information transmitted to other agencies.--
(A) In general.--Any Federal, State, or local law
enforcement agency that receives a copy of information
or evidence pursuant to subsection (b)(1)(A) shall
permanently destroy the copy not later than 3 days
after receiving the copy unless the agency has obtained
a warrant authorizing the seizure of the electronic
equipment or copies of any contents of the electronic
equipment.
(B) Foreign intelligence information.--Any agency
or department of the United States that receives a copy
of information pursuant to subsection (b)(1)(B) shall
permanently destroy the copy--
(i) not later than 21 days after receiving
the copy if a court order authorizing the
seizure of the electronic equipment or copies
of any contents of the electronic equipment has
not been obtained or denied and an application
for such an order is not pending before the
Foreign Intelligence Surveillance Court; or
(ii) not later than 3 days after a denial
by the Foreign Intelligence Surveillance Court
of an application for a court order.
(d) Retention Upon Execution of a Warrant or Court Order.--
(1) In general.--Upon execution of a warrant or an order of
the Foreign Intelligence Surveillance Court, officials of the
Department of Homeland Security, the Federal, State, or local
law enforcement agency obtaining the warrant pursuant to
subsection (b)(3)(A), or the agency or department of the United
States obtaining the court order pursuant to subsection
(b)(3)(B), as the case may be, may retain copies of the
contents of the electronic equipment that the warrant or court
order authorizes to be seized.
(2) Destruction of contents not authorized to be seized.--
Copies of any contents of the electronic equipment that are not
authorized to be seized pursuant to the warrant or court order
described in paragraph (1) shall be permanently destroyed and
the electronic equipment shall be returned to the United States
resident unless the warrant or court order authorizes seizure
of the electronic equipment.
(e) Nonretention Upon Denial of Warrant or Court Order.--If the
application for a warrant described in subsection (a) or subsection
(b)(3)(A) or for a court order described in subsection (b)(3)(B) is
denied, the electronic equipment shall be returned to the United States
resident and any copies of the contents of the electronic equipment
shall be permanently destroyed not later than 3 days after the denial
of the warrant or court order.
(f) Receipt and Disclosure.--Any United States resident whose
electronic equipment is removed from the resident's possession for
longer than a 24-hour period shall be provided with--
(1) a receipt;
(2) a statement of the rights of the resident and the
remedies available to the resident under this Act; and
(3) the name and telephone number of an official of the
Department of Homeland Security who can provide the resident
with information about the status of the electronic equipment.
SEC. 7. PROHIBITION ON PROFILING.
(a) In General.--An official of the Department of Homeland Security
may not consider race, ethnicity, national origin, or religion in
selecting United States residents for searches of electronic equipment
or in determining the scope or substance of such a search except as
provided in subsection (b).
(b) Exception With Respect to Descriptions of Particular Persons.--
An official of the Department of Homeland Security may consider race,
ethnicity, national origin, or religion in selecting United States
resident for searches of electronic equipment only to the extent that
race, ethnicity, national origin, or religion, as the case may be, is
included among other factors in a description of a particular person
for whom reasonable suspicion is present, based on factors unrelated to
race, ethnicity, national origin, or religion.
(c) Reports.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, and annually thereafter, the
Inspector General and the Officer for Civil Rights and Civil
Liberties of the Department of Homeland Security shall jointly
issue a public report that--
(A) assesses the compliance of the Department of
Homeland Security with the prohibition under subsection
(a);
(B) assesses the impact of searches of electronic
equipment by the Department of Homeland Security on
racial, ethnic, national, and religious minorities,
including whether such searches have a disparate
impact; and
(C) includes any recommendations for changes to the
policies and procedures of the Department of Homeland
Security with respect to searches of electronic
equipment to improve the compliance of the Department
with the prohibition under subsection (a).
(2) Resources.--The Secretary of Homeland Security shall
ensure that the Inspector General and the Officer for Civil
Rights and Civil Liberties are provided the necessary staff,
resources, data, and documentation to issue the reports
required under paragraph (1), including the information
described in sections 5(a)(2) and 5(d) if requested by the
Inspector General or the Officer for Civil Rights and Civil
Liberties.
(d) Survey.--To facilitate an understanding of the impact on
racial, ethnic, national, and religious minorities of searches of
electronic equipment at the border, the Secretary of Homeland Security
shall conduct a random sampling of a statistically significant number
of travelers and record for such travelers the demographic information
described in subparagraphs (C) through (G) of section 5(a)(2). That
information shall be maintained by the Department of Homeland Security
in aggregate form only.
SEC. 8. LIMITS ON ACCESS AND DISCLOSURE.
(a) Scope.--The limitations on access and disclosure set forth in
this section apply to any electronic equipment, copies of contents of
electronic equipment, or information acquired pursuant to a search of
electronic equipment at the border, other than such equipment, copies,
or information seized pursuant to a warrant or court order.
(b) Access.--No official, employee, or agent of the Department of
Homeland Security or any Federal, State, or local government agency or
department may have access to electronic equipment or copies of the
contents of the electronic equipment acquired pursuant to a search of
electronic equipment at the border other than such an official,
employee, or agent who requires such access in order to perform a
function specifically provided for under this Act.
(c) Security.--The Secretary of Homeland Security and the head of
any Federal, State, or local government agency or departments that
comes into possession of electronic equipment or any copies of the
contents of electronic equipment pursuant to a search of electronic
equipment at the border shall ensure that--
(1) the electronic equipment is secured against theft or
unauthorized access; and
(2) any electronic copies of the contents of electronic
equipment are encrypted or otherwise secured against theft or
unauthorized access.
(d) General Prohibition on Disclosure.--No information acquired by
officials, employees, or agents of the Department of Homeland Security
or any Federal, State, or local government agency or department
pursuant to a search of electronic equipment at the border shall be
shared with or disclosed to any other Federal, State, or local
government agency or official or any private person except as
specifically provided in this Act.
(e) Court Order Exception.--If the Secretary of Homeland Security
or any other Federal, State, or local government agency or department
determines that a disclosure of information that is not authorized by
this Act is necessary to prevent grave harm to persons or property, the
Secretary or agency or department, as the case may be, may apply ex
parte to a district court of the United States for an order permitting
such disclosure.
(f) Privileges.--Any disclosure of privileged information that
results directly from a search of electronic equipment at the border
shall not operate as a waiver of the privilege.
(g) Applicability of Privacy Act.--The limitations on access and
disclosure under this Act supplement rather than supplant any
applicable limitations set forth in section 552a of title 5, United
States Code.
SEC. 9. IMPLEMENTATION.
(a) Regulations.--The Secretary of Homeland Security shall issue
regulations to carry out this Act.
(b) Training.--The Secretary of Homeland Security shall ensure that
all officials and agents of the Department of Homeland Security engaged
in searches of electronic equipment at the border are thoroughly and
adequately trained in the laws and procedures related to such searches.
(c) Accountability.--The Secretary of Homeland Security shall
implement procedures to detect and discipline violations of this Act by
officials, employees, and agents of the Department of Homeland
Security.
SEC. 10. RECORDKEEPING AND REPORTING.
(a) Reports to Congress.--
(1) Existing policies and guidelines.--Not later than 30
days after the date of the enactment of this Act, the Secretary
of Homeland Security shall submit to Congress a report that
includes--
(A) the policies and guidelines of the Department
of Homeland Security, including field supervision and
intelligence directives, relating to searches of
electronic equipment at the border in effect on the
date of the enactment of this Act;
(B) any training programs or materials relating to
such searches being utilized on such date of enactment;
and
(C) any personnel review and accountability
procedures, or memoranda of understanding with other
government agencies, relating to such searches in
effect on such date of enactment.
(2) Updated policies and guidelines.--Not later than 30
days after revising any of the policies, guidelines, programs,
materials, procedures, or memoranda described in paragraph (1)
or developing new such policies, guidelines, programs,
materials, procedures, or memoranda, the Secretary of Homeland
Security shall submit to Congress a report containing the
revised or new policies, guidelines, programs, materials,
procedures, or memoranda.
(3) Information about implementation.--
(A) Requests.--The information described in
subsection (b)(1)(B) and sections 5(a)(2) and 5(d)
shall be made available to Congress promptly upon the
request of any Member of Congress.
(B) Reports.--The information described in section
5(a)(2) shall be provided to Congress in aggregate form
every 6 months.
(4) Public availability.--The Secretary of Homeland
Security shall make the information in the reports required
under paragraphs (1), (2), and (3)(B) available to the public,
but may redact any information in those reports if the
Secretary determines that public disclosure of the information
would cause harm to national security.
(b) Maintenance of Records.--
(1) In general.--The Secretary of Homeland Security shall
maintain records with respect to--
(A) the information described in sections 5(a)(2)
and 5(d); and
(B) any disclosures of information acquired through
searches of electronic equipment at the border to other
agencies, officials, or private persons, and the
reasons for such disclosures.
(2) Limitations on access and disclosure.--The information
described in paragraph (1)--
(A) may be used or disclosed only as specifically
provided in this Act or another Federal law and access
to that information shall be limited to officials or
agents of the Department of Homeland Security who
require access in order to effectuate an authorized use
or disclosure; and
(B) shall be encrypted or otherwise protected
against theft or authorized access.
(3) Use in litigation.--If otherwise discoverable, the
information in subsection (b)(1)(B) and sections 5(a)(2) and
5(d) may be provided to a person who files a civil action under
section 12(a) or a criminal defendant seeking to suppress
evidence obtained through a search of electronic equipment at
the border pursuant to section 12(d).
SEC. 11. COMPENSATION FOR DAMAGE OR LOSS OF ELECTRONIC EQUIPMENT.
(a) In General.--A United States resident who believes that the
electronic equipment of the resident, or contents of the electronic
equipment, were damaged as a result of a search or seizure under this
Act may file a claim with the Secretary of Homeland Security for
compensation. If the resident demonstrates that the search or seizure
resulted in damage to the electronic equipment or the contents of the
electronic equipment, the Secretary shall compensate the resident for
any resulting economic loss using existing appropriations available for
the Department of Homeland Security.
(b) Claims Process.--The Secretary of Homeland Security shall
establish an administrative claims process to handle the claims
described in subsection (a). The compensation decisions of the
Secretary shall constitute final agency actions for purposes of
judicial review under chapter 5 of title 5, United States Code.
SEC. 12. ENFORCEMENT AND REMEDIES.
(a) Civil Actions.--
(1) In general.--Any person injured by a violation of this
Act may file a civil action in a district court of the United
States against the United States or an individual officer or
agent of the United States for declaratory or injunctive relief
or damages.
(2) Statute of limitations.--A civil action under paragraph
(1) shall be filed not later than 2 years after the later of--
(A) the date of the alleged violation of this Act;
or
(B) the date on which the person who files the
civil action reasonably should have known of the
alleged violation.
(3) Damages.--A person who demonstrates that the person has
been injured by a violation of this Act may receive liquidated
damages of $1,000 or actual economic damages, whichever is
higher.
(4) Special rule with respect to civil actions for
profiling.--In the case of a civil action filed under paragraph
(1) that alleges a violation of section 7, proof that searches
of the electronic equipment of United States residents at the
border have a disparate impact on racial, ethnic, religious, or
national minorities shall constitute prima facie evidence of
the violation.
(5) Attorney's fees.--In any civil action filed under
paragraph (1), the district court may allow a prevailing
plaintiff reasonable attorney's fees and costs, including
expert fees.
(b) Admissibility of Information in Criminal Actions.--In any
criminal prosecution brought in a district court of the United States,
the court may exclude evidence obtained as a direct or indirect result
of a violation of this Act if the exclusion would serve the interests
of justice.
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