II 

115TH CONGRESS 

1ST SESSION S. 823 

To ensure the digital contents of electronic equipment and online accounts 

belonging to or in the possession of United States persons entering 

or exiting the United States are adequately protected at the border, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 4, 2017 

Mr. WYDEN (for himself and Mr. PAUL) introduced the following bill; which 

was read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

A BILL 

To ensure the digital contents of electronic equipment and 

online accounts belonging to or in the possession of 

United States persons entering or exiting the United 

States are adequately protected at the border, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Data at 

5 the Border Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) United States persons have a reasonable ex2 pectation of privacy in the digital contents of their 

3 electronic equipment, the digital contents of their 

4 online accounts, and the nature of their online pres5 ence. 

6 (2) The Supreme Court of the United States 

7 recognized in Riley v. California, 134 S. Ct. 2473 

8 (2014) the extraordinary privacy interests in elec9 tronic equipment like cell phones. 

10 (3) The privacy interest of United States per11 sons in the digital contents of their electronic equip12 ment, the digital contents of their online accounts, 

13 and the nature of their online presence differs in 

14 both degree and kind from their privacy interest in 

15 closed containers. 

16 (4) Accessing the digital contents of electronic 

17 equipment, accessing the digital contents of an on18 line account, or obtaining information regarding the 

19 nature of the online presence of a United States per20 son entering or exiting the United States, without a 

21 lawful warrant based on probable cause, is unreason22 able under the Fourth Amendment to the Constitu23 tion of the United States. 

24 SEC. 3. SCOPE. 

25 Nothing in this Act shall be construed to— 


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1 (1) prohibit a Governmental entity from con2 ducting an inspection of the external physical com3 ponents of the electronic equipment to determine the 

4 presence or absence of weapons or contraband with5 out a warrant, including activating or attempting to 

6 activate an object that appears to be electronic 

7 equipment to verify that the object is electronic 

8 equipment; or 

9 (2) limit the authority of a Governmental entity 

10 under the Foreign Intelligence Surveillance Act of 

11 1978 (50 U.S.C. 1801 et seq.). 

12 SEC. 4. DEFINITIONS. 

13 As used in this Act— 

14 (1) the term ‘‘access credential’’ includes a 

15 username, password, PIN number, fingerprint, or bi16 ometric indicator; 

17 (2) the term ‘‘border’’ means the international 

18 border of the United States and the functional 

19 equivalent of such border; 

20 (3) the term ‘‘digital contents’’ means any 

21 signs, signals, writing, images, sounds, data, or in22 telligence of any nature transmitted in whole or in 

23 part by electronic equipment, or stored in electronic 

24 equipment or an online account; 


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1 (4) the term ‘‘electronic communication service’’ 

2 has the meaning given that term in section 2510 of 

3 title 18, United States Code; 

4 (5) the term ‘‘electronic equipment’’ has the 

5 meaning given the term ‘‘computer’’ in section 

6 1030(e) of title 18, United States Code; 

7 (6) the term ‘‘Governmental entity’’ means a 

8 department or agency of the United States (includ9 ing any officer, employee, or contractor or other 

10 agent thereof); 

11 (7) the term ‘‘online account’’ means an online 

12 account with an electronic communication service or 

13 remote computing service; 

14 (8) the term ‘‘online account information’’ 

15 means the screen name or other identifier or infor16 mation that would allow a Governmental entity to 

17 identify the online presence of an individual; 

18 (9) the term ‘‘remote computing service’’ has 

19 the meaning given that term in section 2711 of title 

20 18, United States Code; and 

21 (10) the term ‘‘United States person’’ means an 

22 individual who is a United States person, as defined 

23 in section 101 of the Foreign Intelligence Surveil24 lance Act of 1978 (50 U.S.C. 1801). 


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1 SEC. 5. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL 

2 DATA AT THE BORDER. 

3 (a) STANDARD.—Subject to subsection (b), a Govern4 mental entity may not— 

5 (1) access the digital contents of any electronic 

6 equipment belonging to or in the possession of a 

7 United States person at the border without a valid 

8 warrant supported by probable cause issued using 

9 the procedures described in the Federal Rules of 

10 Criminal Procedure by a court of competent jurisdic11 tion; 

12 (2) deny entry into or exit from the United 

13 States by a United States person based on a refusal 

14 by the United States person to— 

15 (A) disclose an access credential that 

16 would enable access to the digital contents of 

17 electronic equipment or the digital contents of 

18 an online account; 

19 (B) provide access to the digital contents 

20 of electronic equipment or the digital contents 

21 of an online account; or 

22 (C) provide online account information; or 

23 (3) delay entry into or exit from the United 

24 States by a United States person for longer than the 

25 period of time, which may not exceed 4 hours, nec26 essary to determine whether the United States perVerDate Sep 11 2014 00:37 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823

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1 son will, in a manner in accordance with subsection 

2 (c), consensually provide an access credential, ac3 cess, or online account information, as described in 

4 subparagraphs (A), (B), and (C) of paragraph (2). 

5 (b) EMERGENCY EXCEPTIONS.— 

6 (1) EMERGENCY SITUATIONS GENERALLY.— 

7 (A) IN GENERAL.—An investigative or law 

8 enforcement officer of a Governmental entity 

9 who is designated by the Secretary of Home10 land Security for purposes of this paragraph 

11 may access the digital contents of electronic 

12 equipment belonging to or in possession of a 

13 United States person at the border without a 

14 warrant described in subsection (a)(1) if the in15 vestigative or law enforcement officer— 

16 (i) reasonably determines that— 

17 (I) an emergency situation exists 

18 that involves— 

19 (aa) immediate danger of 

20 death or serious physical injury 

21 to any person; 

22 (bb) conspiratorial activities 

23 threatening the national security 

24 interest of the United States; or 


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1 (cc) conspiratorial activities 

2 characteristic of organized crime; 

3 (II) the emergency situation de4 scribed in subclause (I) requires ac5 cess to the digital contents of the elec6 tronic equipment before a warrant de7 scribed in subsection (a)(1) author8 izing such access can, with due dili9 gence, be obtained; and 

10 (III) there are grounds upon 

11 which a warrant described in sub12 section (a)(1) could be issued author13 izing such access; and 

14 (ii) makes an application in accord15 ance with this section for a warrant de16 scribed in subsection (a)(1) as soon as 

17 practicable, but not later than 7 days after 

18 the investigative or law enforcement officer 

19 accesses the digital contents under the au20 thority under this subparagraph. 

21 (B) WARRANT NOT OBTAINED.—If an ap22 plication for a warrant described in subpara23 graph (A)(ii) is denied, or in any other case in 

24 which an investigative or law enforcement offi25 cer accesses the digital contents of electronic 


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1 equipment belonging to or in possession of a 

2 United States person at the border without a 

3 warrant under the emergency authority under 

4 subparagraph (A) and a warrant authorizing 

5 the access is not obtained— 

6 (i) any copy of the digital contents in 

7 the custody or control of a Governmental 

8 entity shall immediately be destroyed; 

9 (ii) the digital contents, and any in10 formation derived from the digital con11 tents, may not be disclosed to any Govern12 mental entity or a State or local govern13 ment; and 

14 (iii) the Governmental entity employ15 ing the investigative or law enforcement of16 ficer that accessed the digital contents 

17 shall notify the United States person that 

18 any copy of the digital contents has been 

19 destroyed. 

20 (2) PROTECTION OF PUBLIC SAFETY AND

21 HEALTH.—A Governmental entity may access the 

22 digital contents of electronic equipment belonging to 

23 or in possession of a United States person at the 

24 border without a warrant described in subsection 

25 (a)(1) if the access is— 


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1 (A) necessary for the provision of fire, 

2 medical, public safety, or other emergency serv3 ices; and 

4 (B) unrelated to the investigation of a pos5 sible crime or other violation of the law. 

6 (c) INFORMED CONSENT IN WRITING.— 

7 (1) NOTICE.— 

8 (A) IN GENERAL.—A Governmental entity 

9 shall provide the notice described in subpara10 graph (B) before requesting that a United 

11 States person at the border— 

12 (i) provide consent to access the dig13 ital contents of any electronic equipment 

14 belonging to or in the possession of or the 

15 digital contents of an online account of the 

16 United States person; 

17 (ii) disclose an access credential that 

18 would enable access to the digital contents 

19 of electronic equipment or the digital con20 tents of an online account of the United 

21 States person; 

22 (iii) provide access to the digital con23 tents of electronic equipment or the digital 

24 contents of an online account of the United 

25 States person; or 


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1 (iv) provide online account informa2 tion of the United States person. 

3 (B) CONTENTS.—The notice described in 

4 this subparagraph is written notice in a lan5 guage understood by the United States person 

6 that the Governmental entity— 

7 (i) may not— 

8 (I) compel access to the digital 

9 contents of electronic equipment be10 longing to or in the possession of, the 

11 digital contents of an online account 

12 of, or the online account information 

13 of a United States person without a 

14 valid warrant; 

15 (II) deny entry into or exit from 

16 the United States by the United 

17 States person based on a refusal by 

18 the United States person to— 

19 (aa) disclose an access cre20 dential that would enable access 

21 to the digital contents of elec22 tronic equipment or the digital 

23 contents of an online account; 

24 (bb) provide access to the 

25 digital contents of electronic 


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1 equipment or the digital contents 

2 of an online account; or 

3 (cc) provide online account 

4 information; or 

5 (III) delay entry into or exit from 

6 the United States by the United 

7 States person for longer than the pe8 riod of time, which may not exceed 4 

9 hours, necessary to determine whether 

10 the United States person will consen11 sually provide an access credential, ac12 cess, or online account information, as 

13 described in items (aa), (bb), and (cc) 

14 of subclause (II); and 

15 (ii) if the Governmental entity has 

16 probable cause that the electronic equip17 ment contains information that is relevant 

18 to an allegation that the United States 

19 person has committed a felony, may seize 

20 electronic equipment belonging to or in the 

21 possession of the United States person for 

22 a period of time if the United States per23 son refuses to consensually provide access 

24 to the digital contents of the electronic 

25 equipment. 


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1 (2) CONSENT.— 

2 (A) IN GENERAL.—A Governmental entity 

3 shall obtain written consent described in sub4 paragraph (B) before— 

5 (i) accessing, pursuant to the consent 

6 of a United States person at the border 

7 the digital contents of electronic equipment 

8 belonging to or in the possession of or the 

9 digital contents of an online account of the 

10 United States person; 

11 (ii) obtaining, pursuant to the consent 

12 of a United States person at the border, an 

13 access credential of the United States per14 son that would enable access to the digital 

15 contents of electronic equipment or the 

16 digital contents of an online account; or 

17 (iii) obtaining, pursuant to the con18 sent of a United States person at the bor19 der, online account information for an on20 line account of the United States person. 

21 (B) CONTENTS OF WRITTEN CONSENT.— 

22 Written consent described in this subparagraph 

23 is written consent that— 


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1 (i) indicates the United States person 

2 understands the protections and limitations 

3 described in paragraph (1)(B); 

4 (ii) states the United States person 

5 is— 

6 (I) providing consent to the Gov7 ernmental entity to access certain dig8 ital contents or consensually disclosing 

9 an access credential; or 

10 (II) consensually providing online 

11 account information; and 

12 (iii) specifies the digital contents, ac13 cess credential, or online account informa14 tion with respect to which the United 

15 States person is providing consent. 

16 (d) RETENTION OF DIGITAL CONTENTS.— 

17 (1) LAWFUL ACCESS.—A Governmental entity 

18 that obtains access to the digital contents of elec19 tronic equipment, the digital contents of an online 

20 account, or online account information in accordance 

21 with this section may not make or retain a copy of 

22 the digital contents or online account information, or 

23 any information directly or indirectly derived from 

24 the digital contents or online account information, 

25 unless there is probable cause to believe the digital 


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1 contents or online account information contains evi2 dence of, or constitutes the fruits of, a crime. 

3 (2) UNLAWFUL ACCESS.—If a Governmental 

4 entity obtains access to the digital contents of elec5 tronic equipment, digital contents of an online ac6 count, or online account information in a manner 

7 that is not in accordance with this section, the Gov8 ernmental entity— 

9 (A) shall immediately destroy any copy of 

10 the digital contents or online account informa11 tion, and any information directly or indirectly 

12 derived from the digital contents or online ac13 count information, in the custody or control of 

14 the Governmental entity; 

15 (B) may not disclose the digital contents 

16 or online account information, or any informa17 tion directly or indirectly derived from the dig18 ital contents or online account information, to 

19 any other Governmental entity or a State or 

20 local government; and 

21 (C) shall notify the United States person 

22 that any copy of the digital contents or online 

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1 tents or online account information, has been 

2 destroyed. 

3 (e) RECORDKEEPING.—A Governmental entity shall 

4 keep a record of each instance in which the Governmental 

5 entity obtains access to the digital contents of electronic 

6 equipment belonging to or in the possession of an indi7 vidual at the border, the digital contents of an online ac8 count of an individual who is at the border, or online ac9 count information of an individual who is at the border, 

10 which shall include— 

11 (1) the reason for the access; 

12 (2) the nationality, immigration status, and ad13 mission category of the individual; 

14 (3) the nature and extent of the access; 

15 (4) if the access was consensual, how and to 

16 what the individual consented, and what the indi17 vidual provided by consent; 

18 (5) whether electronic equipment of the indi19 vidual was seized; 

20 (6) whether the Governmental entity made a 

21 copy of all or a portion of the digital contents or on22 line account information, or any information directly 

23 or indirectly derived from the digital contents or on24 line account information; and 


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1 (7) whether the digital contents or online ac2 count information, or any information directly or in3 directly derived from the digital contents or online 

4 account information, was shared with another Gov5 ernmental entity or a State or local government. 

6 SEC. 6. LIMITS ON USE OF DIGITAL CONTENTS AS EVI7 DENCE. 

8 (a) IN GENERAL.—Whenever any digital contents or 

9 online account information have been obtained in violation 

10 of this Act, no part of the digital contents or online ac11 count information and no evidence derived therefrom may 

12 be received in evidence in any trial, hearing, or other pro13 ceeding (including any proceeding relating to the immigra14 tion laws, as defined in section 101(a) of the Immigration 

15 and Nationality Act (8 U.S.C. 1101(a))) in or before any 

16 court, grand jury, department, officer, agency, regulatory 

17 body, legislative committee, or other authority of the 

18 United States, a State, or a political subdivision thereof. 

19 (b) APPLICATION.—To the maximum extent prac20 ticable, the limitations under subsection (a) shall be ap21 plied in the same manner as the limitations under section 

22 2515 of title 18, United States Code. 

23 SEC. 7. LIMITS ON SEIZURE OF ELECTRONIC EQUIPMENT. 

24 A Governmental entity may not seize any electronic 

25 equipment belonging to or in the possession of a United 


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1 States person at the border unless there is probable cause 

2 to believe that the electronic equipment contains informa3 tion that is relevant to an allegation that the United 

4 States person has committed a felony. 

5 SEC. 8. AUDIT AND REPORTING REQUIREMENTS. 

6 In March of each year, the Secretary of Homeland 

7 Security shall submit to Congress and make publicly avail8 able on the Web site of the Department of Homeland Se9 curity a report that includes the following: 

10 (1) The number of times during the previous 

11 year that an officer or employee of the Department 

12 of Homeland Security did each of the following: 

13 (A) Accessed the digital contents of any 

14 electronic equipment belonging to or in the pos15 session of or the digital contents of an online 

16 account of a United States person at the border 

17 pursuant to a warrant supported by probable 

18 cause issued using the procedures described in 

19 the Federal Rules of Criminal Procedure by a 

20 court of competent jurisdiction. 

21 (B) Accessed the digital contents of any 

22 electronic equipment belonging to or in the pos23 session of a United States person at the border 

24 pursuant to the emergency authority under sec25 tion 5(b). 


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1 (C) Requested consent to access the digital 

2 contents of any electronic equipment belonging 

3 to or in the possession of, the digital contents 

4 of an online account of, or online account infor5 mation of a United States person at the border. 

6 (D) Accessed the digital contents of any 

7 electronic equipment belonging to or in the pos8 session of, the digital contents of an online ac9 count of, or online account information of a 

10 United States person at the border pursuant to 

11 written consent provided in accordance with 

12 section 5(c). 

13 (E) Requested a United States person at 

14 the border consensually disclose an access cre15 dential that would enable access to the digital 

16 contents of electronic equipment or the digital 

17 contents of an online account of the United 

18 States person. 

19 (F) Accessed the digital contents of elec20 tronic equipment or the digital contents of an 

21 online account of a United States person at the 

22 border using an access credential pursuant to 

23 written consent provided in accordance with 

24 section 5(c). 


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1 (G) Accessed the digital contents of any 

2 electronic equipment belonging to or in the pos3 session of, the digital contents of an online ac4 count of, or online account information of a 

5 United States person at the border in a manner 

6 that was not in accordance with section 5. 

7 (H) Accessed the digital contents of any 

8 electronic equipment belonging to or in the pos9 session of, the digital contents of an online ac10 count of, or online account information of an 

11 individual who is not a United States person at 

12 the border. 

13 (I) Accessed the digital contents of any 

14 electronic equipment belonging to or in the pos15 session of an individual at the border, the dig16 ital contents of an online account of an indi17 vidual at the border, or online account informa18 tion of an individual at the border (regardless 

19 of whether the individual is a United States 

20 person) at the request of a Governmental entity 

21 (including another component of the Depart22 ment of Homeland Security) that is not the 

23 Governmental entity employing the individual 

24 accessing the digital contents or online account 

25 information. 


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1 (2) Aggregate data on— 

2 (A) the number of United States persons 

3 for which a Governmental entity obtains access 

4 to— 

5 (i) the digital contents of electronic 

6 equipment belonging to or in the posses7 sion of the United States person at the 

8 border; 

9 (ii) the digital contents of an online 

10 account of the United States person while 

11 at the border; or 

12 (iii) online account information of the 

13 United States person while at the border; 

14 (B) the country from which United States 

15 persons departed most recently before arriving 

16 in the United States for the United States per17 sons for which a Governmental entity obtains 

18 access to— 

19 (i) the digital contents of electronic 

20 equipment belonging to or in the posses21 sion of the United States person at the 

22 border; 

23 (ii) the digital contents of an online 

24 account of the United States person while 

25 at the border; or 


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1 (iii) online account information of the 

2 United States person while at the border; 

3 (C) the number and nationality of individ4 uals who are not United States persons for 

5 which a Governmental entity obtains access 

6 to— 

7 (i) the digital contents of electronic 

8 equipment belonging to or in the posses9 sion of the individuals at the border; 

10 (ii) the digital contents of an online 

11 account of the individuals while at the bor12 der; or 

13 (iii) online account information of the 

14 individuals while at the border; and 

15 (D) the country from which individuals 

16 who are not United States persons departed 

17 most recently before arriving in the United 

18 States for the individuals for which a Govern19 mental entity obtains access to— 

20 (i) the digital contents of electronic 

21 equipment belonging to or in the posses22 sion of the individuals at the border; 

23 (ii) the digital contents of an online 

24 account of the individuals while at the bor25 der; or 


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1 (iii) online account information of the 

2 individuals while at the border. 

3 (3) Aggregate data regarding the perceived race 

4 and ethnicity of individuals for whom a Govern5 mental entity obtains access to— 

6 (A) the digital contents of electronic equip7 ment belonging to or in the possession of the 

8 individuals at the border; 

9 (B) the digital contents of an online ac10 count of the individuals while at the border; or 

11 (C) online account information of the indi12 viduals while at the border. 

Æ 


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