I 

111TH CONGRESS 

1ST SESSION H. R. 1726 

To require the Secretary of Homeland Security to issue a rule with respect 

to border security searches of electronic devices, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 26, 2009 

Ms. LORETTA SANCHEZ of California (for herself, Mr. ENGEL, Mr. GONZALEZ, Mr. HINCHEY, Mr. THOMPSON of Mississippi, Mr. HINOJOSA, Mr. 

GRIJALVA, Mr. CARNAHAN, Ms. SCHAKOWSKY, Mr. ORTIZ, Mr. MORAN

of Virginia, Mr. SMITH of Washington, Mrs. LOWEY, Ms. LEE of California, Mr. CARSON of Indiana, Mr. PAUL, Ms. CLARKE, Mr. MILLER of 

North Carolina, and Mr. FILNER) introduced the following bill; which was 

referred to the Committee on Homeland Security 

A BILL 

To require the Secretary of Homeland Security to issue 

a rule with respect to border security searches of electronic devices, 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 ‘‘Border Security 

5 Search Accountability Act of 2009’’. 


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1 SEC. 2. RULE WITH RESPECT TO BORDER SECURITY 

2 SEARCHES OF ELECTRONIC DEVICES. 

3 (a) IN GENERAL.—Not later than 180 days after the 

4 date of the enactment of this Act, the Secretary, acting 

5 through the Commissioner of United States Customs and 

6 Border Protection, in coordination with the Assistant Sec7 retary of Homeland Security for United States Immigra8 tion and Customs Enforcement and the senior official ap9 pointed pursuant to section 222 of the Homeland Security 

10 Act of 2002 (6 U.S.C. 142), shall issue a rule with respect 

11 to the scope of and procedural and recordkeeping require12 ments associated with border security searches of elec13 tronic devices. 

14 (b) CONTENT.—The rule issued pursuant to sub15 section (a) shall include the following: 

16 (1) A requirement that information collected 

17 during a border security search of an electronic de18 vice that is determined to be commercial informa19 tion, including trade secrets, information subject to 

20 attorney-client privilege, information subject to doc21 tor-patient privilege, or information subject to an22 other privilege or protection shall be handled con23 sistent with the laws, rules, and regulations gov24 erning such information and shall not be shared 

25 with a Federal, State, local, tribal, or foreign agency 

26 unless it is determined that such agency has the 


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1 mechanisms in place to comply with such laws, rules, 

2 and regulations. 

3 (2) A requirement that authorized agents, to 

4 the greatest extent practicable, conduct all border 

5 security searches of electronic devices in the pres6 ence of a supervisor and, where appropriate, in the 

7 presence of the individuals whose electronic devices 

8 are subject to such searches. 

9 (3) A determination of the number of days that 

10 an electronic device subjected to a border security 

11 search or the information collected from such device 

12 may be retained, unless probable cause exists, that 

13 prohibits retention exceeding the period necessary to 

14 translate, decrypt, or reasonably search such device 

15 or information and that requires such information to 

16 be destroyed if in the custody of an authorized agent 

17 after such number of days. 

18 (4) A requirement that if information collected 

19 from an electronic device subjected to a border secu20 rity search is copied, shared, retained, or entered 

21 into an electronic database, the individual from 

22 whose electronic device such information is collected 

23 shall receive written notification of such copying, 

24 sharing, retention, or entry unless such notification 

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1 curity or would meet another criteria established by 

2 the Secretary in the rule. 

3 (5) A requirement that an individual subjected 

4 to a border security search of an electronic device 

5 shall receive a receipt for such device if such device 

6 is removed from the possession of such individual. 

7 (6) A requirement that an individual subjected 

8 to a border security search of an electronic device 

9 shall receive notice of how to report abuses or con10 cerns and how to seek redress from the Department 

11 of Homeland Security. 

12 (7) A requirement that information on the 

13 rights of individuals with respect to border security 

14 searches and Department of Homeland Security re15 dress procedures shall be posted at all ports of entry 

16 in locations that are likely to be viewed by individ17 uals subject to border security searches. 

18 (8) A privacy impact assessment of the rule, as 

19 prepared by the senior official appointed pursuant to 

20 section 222 of the Homeland Security Act of 2002, 

21 that includes recommendations with respect to the 

22 copying, sharing, retention, and entry into an elec23 tronic database of personally identifiable information 

24 collected from electronic devices subjected to a bor25 der security search. 


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1 (9) A civil liberties impact assessment of the 

2 rule, as prepared by the Officer for Civil Rights and 

3 Civil Liberties of the Department of Homeland Se4 curity. 

5 SEC. 3. TRAINING AND AUDITING WITH RESPECT TO THE 

6 RULE. 

7 (a) TRAINING.—The Secretary shall provide each au8 thorized agent with appropriate training to conduct border 

9 security searches of electronic devices in accordance with 

10 the rule issued pursuant to section 2. The training shall 

11 include instruction on constitutional, privacy, civil rights, 

12 and civil liberties issues related to such searches. 

13 (b) AUDITING.—The Secretary, acting through the 

14 Inspector General of the Department of Homeland Secu15 rity, shall develop and annually administer an auditing 

16 mechanism to review whether authorized agents are con17 ducting border security searches of electronic devices in 

18 accordance with the rule issued pursuant to section 2. 

19 SEC. 4. REPORT. 

20 Not later than 180 days after the effective date of 

21 the rule issued pursuant to section 2, and quarterly there22 after, the Secretary shall submit to the Committee on 

23 Homeland Security of the House of Representatives and 

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1 mental Affairs of the Senate a report that shall include 

2 the following: 

3 (1) A description of the activities of authorized 

4 agents with respect to border security searches of 

5 electronic devices. 

6 (2) A description of the manner in which the 

7 Department of Homeland Security has complied 

8 with this Act. 

9 (3) The number, by port of entry, of border se10 curity searches of electronic devices conducted dur11 ing the reporting period. 

12 (4) The number, by port of entry, of instances 

13 during the reporting period that information from 

14 an electronic device subjected to a border security 

15 search was retained, copied, shared, or entered in an 

16 electronic database, including the number of elec17 tronic devices retained as the result of a border se18 curity search. 

19 (5) The race, ethnicity, national origin, and citi20 zenship of each individual whose electronic device 

21 was subjected to a border security search during the 

22 reporting period, to determine the existence or ab23 sence of racial profiling. 

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1 tronic device subjected to a border security search 

2 was referred to a law enforcement or intelligence 

3 agency for further action, including whether such in4 formation resulted in a prosecution or conviction. 

5 SEC. 5. DEFINITIONS. 

6 In this Act, the following definitions apply: 

7 (1) AUTHORIZED AGENT.—The term ‘‘author8 ized agent’’ means an agent, officer, or official of 

9 United States Customs and Border Protection, 

10 United States Immigration and Customs Enforce11 ment, or any other office or agency of the Depart12 ment of Homeland Security who is authorized to 

13 conduct a border security search. 

14 (2) BORDER SECURITY SEARCH.—The term 

15 ‘‘border security search’’ means a search by an au16 thorized agent of persons, baggage, or cargo enter17 ing, departing, or passing through the United States 

18 through any port of entry. 

19 (3) ELECTRONIC DEVICE.—The term ‘‘elec20 tronic device’’ means an electronic, magnetic, opti21 cal, electrochemical, or other high-speed data proc22 essing device performing logical, arithmetic, or stor23 age functions, such as a computer, a cellular tele24 phone, or any other device used for electronic com25 munication or for storing electronic, digital or anaVerDate Nov 24 2008 03:46 Mar 27, 2009 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1726.IH H1726

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1 log data, and which includes any data storage facil2 ity or communications facility directly related to or 

3 operating in conjunction with such device. 

4 (4) SECRETARY.—The term ‘‘Secretary’’ means 

5 the Secretary of Homeland Security. 

Æ 


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