I 

112TH CONGRESS 

1ST SESSION H. R. 216 

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 

JANUARY 7, 2011 

Ms. LORETTA SANCHEZ of California 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 2011’’. 

6 SEC. 2. RULE WITH RESPECT TO BORDER SECURITY 

7 SEARCHES OF ELECTRONIC DEVICES. 

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

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

10 through the Commissioner of United States Customs and 


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1 Border Protection, in coordination with the Assistant Sec2 retary of Homeland Security for United States Immigra3 tion and Customs Enforcement and the senior official ap4 pointed pursuant to section 222 of the Homeland Security 

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

6 to the scope of and procedural and recordkeeping require7 ments associated with border security searches of elec8 tronic devices. 

9 (b) CONTENT.—The rule issued pursuant to sub10 section (a) shall include the following: 

11 (1) A requirement that information collected 

12 during a border security search of an electronic de13 vice that is determined to be commercial informa14 tion, including trade secrets, information subject to 

15 attorney-client privilege, information subject to doc16 tor-patient privilege, or information subject to an17 other privilege or protection shall be handled con18 sistent with the laws, rules, and regulations gov19 erning such information and shall not be shared 

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

21 unless it is determined that such agency has the 

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

23 and regulations. 

24 (2) A requirement that authorized agents, to 

25 the greatest extent practicable, conduct all border 


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1 security searches of electronic devices in the pres2 ence of a supervisor and, where appropriate, in the 

3 presence of the individuals whose electronic devices 

4 are subject to such searches. 

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

6 an electronic device subjected to a border security 

7 search or the information collected from such device 

8 may be retained, unless probable cause exists, that 

9 prohibits retention exceeding the period necessary to 

10 translate, decrypt, or reasonably search such device 

11 or information and that requires such information to 

12 be destroyed if in the custody of an authorized agent 

13 after such number of days. 

14 (4) A requirement that if information collected 

15 from an electronic device subjected to a border secu16 rity search is copied, shared, retained, or entered 

17 into an electronic database, the individual from 

18 whose electronic device such information is collected 

19 shall receive written notification of such copying, 

20 sharing, retention, or entry unless such notification 

21 would hinder an investigation involving national se22 curity or would meet another criteria established by 

23 the Secretary in the rule. 

24 (5) A requirement that an individual subjected 

25 to a border security search of an electronic device 


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1 shall receive a receipt for such device if such device 

2 is removed from the possession of such individual. 

3 (6) A requirement that an individual subjected 

4 to a border security search of an electronic device 

5 shall receive notice of how to report abuses or con6 cerns and how to seek redress from the Department 

7 of Homeland Security. 

8 (7) A requirement that information on the 

9 rights of individuals with respect to border security 

10 searches and Department of Homeland Security re11 dress procedures shall be posted at all ports of entry 

12 in locations that are likely to be viewed by individ13 uals subject to border security searches. 

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

15 prepared by the senior official appointed pursuant to 

16 section 222 of the Homeland Security Act of 2002, 

17 that includes recommendations with respect to the 

18 copying, sharing, retention, and entry into an elec19 tronic database of personally identifiable information 

20 collected from electronic devices subjected to a bor21 der security search. 

22 (9) A civil liberties impact assessment of the 

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

24 Civil Liberties of the Department of Homeland Se25 curity. 


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

2 RULE. 

3 (a) TRAINING.—The Secretary shall provide each au4 thorized agent with appropriate training to conduct border 

5 security searches of electronic devices in accordance with 

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

7 include instruction on constitutional, privacy, civil rights, 

8 and civil liberties issues related to such searches. 

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

10 Inspector General of the Department of Homeland Secu11 rity, shall develop and annually administer an auditing 

12 mechanism to review whether authorized agents are con13 ducting border security searches of electronic devices in 

14 accordance with the rule issued pursuant to section 2. 

15 SEC. 4. REPORT. 

16 Not later than 180 days after the effective date of 

17 the rule issued pursuant to section 2, and quarterly there18 after, the Secretary shall submit to the Committee on 

19 Homeland Security of the House of Representatives and 

20 to the Committee on Homeland Security and Govern21 mental Affairs of the Senate a report that shall include 

22 the following: 

23 (1) A description of the activities of authorized 

24 agents with respect to border security searches of 

25 electronic devices. 


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

2 Department of Homeland Security has complied 

3 with this Act. 

4 (3) The number, by port of entry, of border se5 curity searches of electronic devices conducted dur6 ing the reporting period. 

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

8 during the reporting period that information from 

9 an electronic device subjected to a border security 

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

11 electronic database, including the number of elec12 tronic devices retained as the result of a border se13 curity search. 

14 (5) The race, ethnicity, national origin, and citi15 zenship of each individual whose electronic device 

16 was subjected to a border security search during the 

17 reporting period, to determine the existence or ab18 sence of racial profiling. 

19 (6) The number of instances during the report20 ing period that information collected from an elec21 tronic device subjected to a border security search 

22 was referred to a law enforcement or intelligence 

23 agency for further action, including whether such in24 formation resulted in a prosecution or conviction. 


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1 SEC. 5. DEFINITIONS. 

2 In this Act, the following definitions apply: 

3 (1) AUTHORIZED AGENT.—The term ‘‘author4 ized agent’’ means an agent, officer, or official of 

5 United States Customs and Border Protection, 

6 United States Immigration and Customs Enforce7 ment, or any other office or agency of the Depart8 ment of Homeland Security who is authorized to 

9 conduct a border security search. 

10 (2) BORDER SECURITY SEARCH.—The term 

11 ‘‘border security search’’ means a search by an au12 thorized agent of persons, baggage, or cargo enter13 ing, departing, or passing through the United States 

14 through any port of entry. 

15 (3) ELECTRONIC DEVICE.—The term ‘‘elec16 tronic device’’ means an electronic, magnetic, opti17 cal, electrochemical, or other high-speed data proc18 essing device performing logical, arithmetic, or stor19 age functions, such as a computer, a cellular tele20 phone, or any other device used for electronic com21 munication or for storing electronic, digital or ana22 log data, and which includes any data storage facil23 ity or communications facility directly related to or 

24 operating in conjunction with such device. 


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

2 the Secretary of Homeland Security. 

Æ 


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