H. R. 239
IN THE HOUSE OF REPRESENTATIVES
January 7, 2009
Mr. Engel (for himself and Mr. Paul) introduced the following bill; which was referred to the Committee 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 jurisdiction of the committee concerned
To impose requirements with regard to border searches of digital electronic devices and digital storage media, and for other purposes.
This Act may be cited as the
Securing our Borders and our Data Act of 2009.
Border searches and seizures relating to digital electronic devices and media
The following rules shall apply to any border search or seizure relating to a digital electronic device or digital storage media in the possession of an individual:
Except as otherwise provided in this subsection, no search of the digital contents of the device or media may be based on the power of the United States to search a person and that person’s possessions upon entry into the United States, unless that search is based on a reasonable suspicion regarding that person.
No seizure of the digital contents of a device or media, or of the device or media itself, may be based on the power of the United States to search a person and that person’s possessions upon entry into the United States, but must be based on some other constitutional authority to make the seizure.
Any search of the digital contents of a device or media must be conducted only by officers who have received appropriate training, in order to minimize the possibility of irreparable damage to, or erasure of, files and the hardware itself, and must be conducted in the presence of a supervisor. At the request of the traveler, such search shall be conducted out of public view.
An individual may be required to turn on the device in order to demonstrate it is a working device.
Supplemental and implementing rules by Secretary of Homeland Security
The Secretary of Homeland Security shall—
make rules regarding border searches to which subsection (a) applies, detailing—
policies for protecting the integrity of the data;
policies for the length of time seized data will be stored and where and how it will be stored;
policies for whether the downloaded information will be shared and, if so, with what other governmental entities and under what circumstances;
information as to what rights an individual has to ensure that individual’s device or media is returned; and
a requirement that a receipt be given immediately to anyone whose device or media is seized with information regarding whom to call for information about the seizure; and
place these rules on the Department of Homeland Security website in a manner that makes them readily publicly available.
In this section—
border search means any search of an individual upon entry into the United States based on the power of the United States to search a person and that person’s possessions upon entry to the United States;
digital electronic device means any electronic device that contains digital data, including laptops, personal digital assistants, wireless phones, ipods, iphones, blackberries, and digital cameras; and
digital storage media means any memory device that contains or may contain digital data.
Annual study and report on searches and seizures of travelers by the United States Customs Service
The Commissioner of the United States Customs Service shall conduct an annual study of searches and seizures, during the prior year, of the digital contents of digital electronic devices and digital storage media, and of seizures of such devices and media, that are based on the power of the United States to search or seize a person and that person’s possessions upon entry into the United States. The study shall include the number of such searches and seizures, the race, gender, and national origin of the travelers subject to those searches, the type of searches conducted, and the results of the searches.
Not later than March 31 of each year, the Commissioner of the Customs Service shall submit to the Congress the annual report containing the results of the study conducted under subsection (a) for the prior year.