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S. 823 (115th): Protecting Data at the Border Act

If you travel outside the U.S. and re-enter, customs officers have the legal right to go through the contents of your smartphone or laptop computer, order you to reveal your passwords, and download contents. New legislation would prevent that.

The context

Warrantless seizure and examination of electronic devices by law enforcement, for both citizens and non-citizens, is almost never allowed in the U.S. absent extenuating or extreme circumstances. That’s because of the 2014 Supreme Court decision Riley v. California, which unanimously held that non-emergency warrantless searches of digital devices such as a cellphone or laptop violated the Constitution’s Fourth Amendment.

However, customs officials at the border or airports have enjoyed immunity from this warrant requirement, in the name of national security, since the very first Congress passed a law decreeing so in 1789.

So there are currently two conflicting aspects of the law. Which should triumph when it comes to digital devices crossing the border: the longstanding ability of customs official to conduct warrantless searches, or the Supreme Court holding that digital devices can’t be searched without a warrant? In recent years the courts have held that the former wins out.

What the bill does

The Protecting Data at the Border Act would change it so that the latter wins out. More specifically, it would enshrine in law that customs officials at the border are prevented from searching anybody’s digital device without a warrant.

The legislation was introduced jointly on April 4, as H.R. 1899 in the House by Rep. Jared Polis (D-CO2) and S. 823 in the Senate by Sen. Ron Wyden (D-OR).

What supporters say

Supporters argue the legislation protects privacy rights and is consistent with the Supreme Court’s 2014 decision, a decision which is arguably more timely and relevant for the modern era than the original 1789 law.

“Until the 21st century, the border search exception to the Fourth Amendment’s warrant requirement was limited to the items travelers could carry with them when crossing the international border. The ‘amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile,’” the Electronic Frontier Foundation wrote in an amicus brief.

“Because of this practical reality, citizens could take comfort that border searches did not give government access to travelers’ entire homes or offices — indeed, their whole lives — in the absence of the Fourth Amendment’s warrant requirement.” However, the pervasiveness of digital devices combined with cloud computing means that this no longer remains true. “Today, the ‘sum of an individual’s private life’ sits in the pocket or purse of almost any traveller carrying a cell phone, laptop or tablet computer.”

What opponents say

Opponents argue that searches of digital devices are necessary to protect national security, and that supporters’ fears of pervasiveness are overblown.

“These electronic media searches have produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud,” Department of Homeland Security Acting General Counsel Joseph B. Maher wrote in a USA Today op-ed. “This authority is critical to our mission, and Customs exercises it judiciously. Electronic searches affect less than one-hundredth of 1 percent of all arriving travelers.

Odds of passage

With the political tide ostensibly turning more in favor of security and away from protection of civil liberties, if the presidential election results were any indication, this legislation could find a difficult path to passage. However, it has attracted at least some level of bipartisan support.

The House bill has attracted 12 cosponsors, 11 Democrats plus Rep. Blake Farenthold (R-TX27), and awaits a vote in the House Homeland Security Committee. The Senate bill has attracted two bipartisan cosponsors, Sens. Rand Paul (R-KY) and Ed Markey (D-MA). It awaits a vote in the Senate Homeland Security and Governmental Affairs Committee.

Last updated Apr 26, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Apr 4, 2017.

Protecting Data at the Border Act

This bill prohibits a governmental entity from: (1) accessing the digital contents of electronic equipment belonging to, or in the possession of, a U.S. person (person) at the border without a valid warrant; or (2) denying a person's U.S. entry or exit based on the person's refusal to disclose an access credential or in order to determine whether such person will consensually provide an access credential, access, or online account information.

A border officer may access the digital contents of electronic equipment without a warrant if the officer determines that an emergency situation exists. The officer must subsequently apply for a warrant within seven days, and if such warrant is not granted: (1) digital content copies must be destroyed, (2) digital contents or information may not be disclosed, and (3) the person shall be notified of such destruction.

A governmental entity may not make or retain a copy of the digital contents of electronic equipment, an online account, or online account information without probable cause to believe that such information contains evidence of, or constitutes the fruits of, a crime.

Unlawfully accessed information: (1) must be destroyed and the person notified of its destruction; (2) may not be disclosed; and (3) may not be received in evidence in any trial, hearing, or other proceeding.

A governmental entity shall keep a record of each instance in which it obtains access to an individual's digital information.

A governmental entity may not seize electronic equipment belonging to, or in the possession of, a person at the border without probable cause to believe that such equipment contains information relevant to a felony.