II 

115TH CONGRESS 

2D SESSION S. 2462 

To place restrictions on searches and seizures of electronic devices at the 

border. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 27, 2018 

Mr. LEAHY (for himself and Mr. DAINES) introduced the following bill; which 

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

Governmental Affairs 

A BILL 

To place restrictions on searches and seizures of electronic 

devices at the border. 

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

3 SECTION 1. DEFINITIONS. 

4 In this Act: 

5 (1) FORENSIC SEARCH.—The term ‘‘forensic 

6 search’’ means any examination of an electronic de7 vice that— 

8 (A) is conducted for longer than 4 hours; 

9 (B) is conducted with the assistance of any 

10 other electronic device, electronic equipment, or 


dlhill on DSK3GLQ082PROD with BILLS
2 

•S 2462 IS

1 software, including software enabling the 

2 searching, scanning, or indexing of the contents 

3 of the device; 

4 (C) involves the copying or documentation 

5 of data stored on the device; or 

6 (D) is conducted in any other manner that 

7 would not fall within the definition of a manual 

8 search or a search described in section 4(1). 

9 (2) MANUAL SEARCH.—The term ‘‘manual 

10 search’’ means the examination of an electronic de11 vice that is conducted manually without— 

12 (A) the assistance of any other electronic 

13 device, electronic equipment, or software, in14 cluding the use of special search programs; or 

15 (B) the entry of any password, passcode, 

16 fingerprint, account information, or other bio17 metric identifier that permits access to data 

18 otherwise protected by technological means. 

19 SEC. 2. SEARCHES AND SEIZURES OF ELECTRONIC DE20 VICES AT THE BORDER. 

21 (a) IN GENERAL.—Except as otherwise provided in 

22 this section, an official of the Department of Homeland 

23 Security may not search or seize an electronic device 

24 transported by a United States person at the international 

25 border. 


dlhill on DSK3GLQ082PROD with BILLS
3 

•S 2462 IS

1 (b) MANUAL SEARCHES.—An electronic device trans2 ported by an individual at the border may be subject to 

3 a manual search by an official of the Department of 

4 Homeland Security, in accordance with the procedures de5 scribed in subsection (f) if the official has a reasonable 

6 suspicion that— 

7 (1) the individual transporting the device— 

8 (A) is carrying contraband or is otherwise 

9 transporting goods or persons in violation of the 

10 laws enforced by the Department of Homeland 

11 Security; or 

12 (B) is inadmissible or otherwise not enti13 tled to enter the United States under such laws; 

14 and 

15 (2) the device contains information or evidence 

16 relevant to a violation referred to in paragraph (1). 

17 (c) SEIZURES.—An electronic device transported by 

18 an individual at the border may be seized by an official 

19 of the Department of Homeland Security, in accordance 

20 with the procedures described in subsection (f) if the offi21 cial has probable cause to believe that— 

22 (1) the individual— 

23 (A) is carrying contraband or is otherwise 

24 transporting goods or persons in violation of the 


dlhill on DSK3GLQ082PROD with BILLS
4 

•S 2462 IS

1 laws enforced by the Department of Homeland 

2 Security; 

3 (B) is inadmissible or otherwise not enti4 tled to enter the United States under such laws; 

5 or 

6 (C) is in violation of any Federal or State 

7 law punishable by more than 1 year; and 

8 (2) the electronic device contains information or 

9 evidence relevant to a violation referred to in para10 graph (1). 

11 (d) FORENSIC SEARCHES.—An electronic device 

12 transported by an individual at the border may be subject 

13 to forensic search only pursuant to a warrant issued using 

14 the procedures described in the Federal Rules of Criminal 

15 Procedure (or, in the case of a State court, issued using 

16 State warrant procedures) by a court of competent juris17 diction. 

18 (e) ADMISSIBILITY OF EVIDENCE.—Information ob19 tained or derived pursuant to a violation of this section— 

20 (1) may not be used as the basis for dem21 onstrating the inadmissibility or removability of an 

22 individual; and 

23 (2) may not be received in evidence or disclosed 

24 in any trial, hearing, or other proceeding in or be25 fore any court, grand jury, department, officer, 


dlhill on DSK3GLQ082PROD with BILLS
5 

•S 2462 IS

1 agency, regulatory body, legislative committee, or 

2 other authority of the United States, a State, or a 

3 political subdivision of a State. 

4 (f) PROCEDURES FOR SEARCHES AND SEIZURES OF

5 ELECTRONIC DEVICES AT THE BORDER.— 

6 (1) INITIATING A SEARCH OR SEIZURE.—Prior 

7 to initiating any search or seizure of an electronic 

8 device transported by an individual at the border 

9 pursuant to the authority under this section, the of10 ficial of the Department of Homeland Security initi11 ating the search or seizure shall— 

12 (A) obtain supervisory approval to engage 

13 in the search or seizure; and 

14 (B) record— 

15 (i) the nature of the reasonable sus16 picion or probable cause and the specific 

17 facts or bases for that determination; and 

18 (ii) the age, sex, country of origin, 

19 citizenship or immigration status, eth20 nicity, and race of the individual trans21 porting the electronic device. 

22 (2) CONDITIONS FOR A MANUAL SEARCH.— 

23 (A) PRESENCE OF THE INDIVIDUAL.—The 

24 individual transporting the electronic device 

25 subject to a manual search shall be permitted 


dlhill on DSK3GLQ082PROD with BILLS
6 

•S 2462 IS

1 to remain present during the search of the elec2 tronic device. 

3 (B) SCOPE OF MANUAL SEARCH.—A man4 ual search— 

5 (i) shall be conducted by an official of 

6 the Department of Homeland Security 

7 manually, without the assistance of any 

8 electronic device or electronic equipment; 

9 (ii) shall be tailored to the reasonable 

10 suspicion recorded by the official of the 

11 Department of Homeland Security before 

12 the manual search began; 

13 (iii) shall be confined to documents, 

14 files, or other electronic information stored 

15 on the electronic device that could reason16 ably contain information or evidence rel17 evant to a violation described in paragraph 

18 (3) and are accessible without the entry of 

19 any password, passcode, fingerprint, or 

20 other biometric identifier; and 

21 (iv) may not exceed a total of 4 hours. 

22 (C) DESTRUCTION OF INADVERTENTLY

23 COLLECTED INFORMATION.—Unless an official 

24 of the Department of Homeland Security deter25 mines, not later than 5 days after a manual 


dlhill on DSK3GLQ082PROD with BILLS
7 

•S 2462 IS

1 search, that information obtained from the elec2 tronic device is evidence of a violation described 

3 in paragraph (3), an official of the Department 

4 shall delete any information collected from or 

5 about the device from Department records not 

6 later than 10 days after the date on which the 

7 search was conducted. 

8 (3) CONDITIONS FOR A SEIZURE OF AN ELEC9 TRONIC DEVICE.— 

10 (A) REQUIREMENT FOR WARRANT OR

11 COURT ORDER APPROVING SEIZURE.— 

12 (i) IN GENERAL.—Not later than 48 

13 hours after an official of the Department 

14 of Homeland Security seizes an electronic 

15 device pursuant to the authority under this 

16 section, an official of the Department shall 

17 seek a warrant or order approving the sei18 zure under the procedures described in the 

19 Federal Rules of Criminal Procedure (or, 

20 in the case of a State court, issued using 

21 State warrant procedures). 

22 (ii) NO WARRANT OR ORDER.—If a 

23 warrant or order is denied or fails to be 

24 issued after the seizure, an official of the 

25 Department of Homeland Security shall 


dlhill on DSK3GLQ082PROD with BILLS
8 

•S 2462 IS

1 immediately return the electronic device to 

2 the individual from whom it was seized. 

3 (B) SUSPENSION AND PROHIBITION OF

4 SEARCH.—An electronic device seized at the 

5 border pursuant to the authority under this sec6 tion may not be accessed or searched by any 

7 governmental entity before the issuance of a 

8 warrant or court order authorizing the access9 ing or search of the device. 

10 SEC. 3. REPORTING. 

11 The Secretary of Homeland Security shall submit an 

12 annual report to the Committee on the Judiciary of the 

13 Senate, the Committee on the Judiciary of the House of 

14 Representatives, the Committee on Homeland Security 

15 and Governmental Affairs of the Senate, and the Com16 mittee on Homeland Security of the House of Representa17 tives that details— 

18 (1) the number of electronic devices subject to 

19 a manual search pursuant to the authority under 

20 section 2; 

21 (2) the number of electronic devices subject to 

22 a forensic search pursuant to the authority under 

23 section 2; 

24 (3) the number of electronic devices seized pur25 suant to the authority under section 2; 


dlhill on DSK3GLQ082PROD with BILLS
9 

•S 2462 IS

1 (4) statistics regarding the age, sex, country of 

2 origin, citizenship or immigration status, ethnicity, 

3 and race of the individuals transporting electronic 

4 devices that were subject to a manual search, a fo5 rensic search, or seizure; and 

6 (5) the number of individuals whose electronic 

7 devices were searched or seized pursuant to the au8 thority under section 2 and were later charged with 

9 a criminal offense based on information obtained 

10 from such search or seizure. 

11 SEC. 4. SAVINGS PROVISIONS. 

12 Nothing in this Act may be construed— 

13 (1) to affect the authority of any law enforce14 ment official to conduct any other lawful search 

15 predicated on an established exception, other than 

16 the exception for border searches, to the warrant re17 quirement of the Fourth Amendment to the Con18 stitution of the United States; or 

19 (2) to require the individual subject to a search 

20 of his or her electronic device to provide any pass21 word, passcode, fingerprint, faceprint, or other bio22 metric identifier without his or her consent, in viola23 tion of the Fifth Amendment to the Constitution of 

24 the United States. 

Æ 


dlhill on DSK3GLQ082PROD with BILLS