II 

110TH CONGRESS 

2D SESSION S. 3612 

To protect citizens and legal residents of the United States from unreasonable 

searches and seizures of electronic equipment at the border, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 26 (legislative day, SEPTEMBER 17), 2008 

Mr. FEINGOLD (for himself, Ms. CANTWELL, Mr. AKAKA, and Mr. WYDEN) 

introduced the following bill; which was read twice and referred to the 

Committee on Homeland Security and Governmental Affairs 

A BILL 

To protect citizens and legal residents of the United States 

from unreasonable searches and seizures of electronic 

equipment 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 ‘‘Travelers’ Privacy Pro5 tection Act of 2008’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Law-abiding citizens and legal residents of 

9 the United States, regardless of their race, ethnicity, 


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1 religion, or national origin, have a reasonable expec2 tation of privacy in the contents of their laptops, cell 

3 phones, personal handheld devices, and other elec4 tronic equipment. 

5 (2) The Department of Homeland Security has 

6 taken the position that laptops and other electronic 

7 devices should not be treated any differently from 

8 suitcases or other ‘‘closed containers’’ and may be 

9 inspected by customs or immigration agents at the 

10 border or in international airports without suspicion 

11 of wrongdoing. 

12 (3) The Department of Homeland Security pub13 lished a policy on July 16, 2008, allowing customs 

14 and immigration agents at the border and in inter15 national airports to ‘‘detain’’ electronic equipment 

16 and ‘‘review and analyze’’ the contents of electronic 

17 equipment ‘‘absent individualized suspicion’’. The 

18 policy applies to any person entering the United 

19 States, including citizens and other legal residents of 

20 the United States returning from overseas travel. 

21 (4) The privacy interest in the contents of a 

22 laptop computer differs in kind and in amount from 

23 the privacy interest in other ‘‘closed containers’’ for 

24 many reasons, including the following: 


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1 (A) Unlike any other ‘‘closed container’’ 

2 that can be transported across the border, 

3 laptops and similar electronic devices can con4 tain the equivalent of a full library of informa5 tion about a person, including medical records, 

6 financial records, e-mails and other personal 

7 and business correspondence, journals, and 

8 privileged work product. 

9 (B) Most people do not know, and cannot 

10 control, all of the information contained on 

11 their laptops, such as records of websites pre12 viously visited and deleted files. 

13 (C) Electronic search tools render searches 

14 of electronic equipment more invasive than 

15 searches of physical locations or objects. 

16 (5) Requiring citizens and other legal residents 

17 of the United States to submit to a government re18 view and analysis of thousands of pages of their 

19 most personal information without any suspicion of 

20 wrongdoing is incompatible with the values of liberty 

21 and personal freedom on which the United States 

22 was founded. 

23 (6) Searching the electronic equipment of per24 sons for whom no individualized suspicion exists is 


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1 an inefficient and ineffective use of limited law en2 forcement resources. 

3 (7) Some citizens and legal residents of the 

4 United States who have been subjected to electronic 

5 border searches have reported being asked inappro6 priate questions about their religious practices, polit7 ical beliefs, or national allegiance, indicating that the 

8 search may have been premised in part on percep9 tions about their race, ethnicity, religion, or national 

10 origin. 

11 (8) Targeting citizens and legal residents of the 

12 United States for electronic border searches based 

13 on race, ethnicity, religion, or national origin is 

14 wholly ineffective as a matter of law enforcement 

15 and repugnant to the values and constitutional prin16 ciples of the United States. 

17 SEC. 3. DEFINITIONS. 

18 In this Act: 

19 (1) BORDER.—The term ‘‘border’’ includes the 

20 border and the functional equivalent of the border. 

21 (2) COPIES.—The term ‘‘copies’’, as applied to 

22 the contents of electronic equipment, includes print23 outs, electronic copies or images, or photographs of, 

24 or notes reproducing or describing, any contents of 

25 the electronic equipment. 


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1 (3) CONTRABAND.—The term ‘‘contraband’’ 

2 means any item the importation of which is prohib3 ited by the laws enforced by officials of the Depart4 ment of Homeland Security. 

5 (4) ELECTRONIC EQUIPMENT.—The term ‘‘elec6 tronic equipment’’ has the meaning given the term 

7 ‘‘computer’’ in section 1030(e)(1) of title 18, United 

8 States Code. 

9 (5) FOREIGN INTELLIGENCE INFORMATION.— 

10 The term ‘‘foreign intelligence information’’ means 

11 information described in section 101(e)(1) of the 

12 Foreign Intelligence Surveillance Act of 1978 (50 

13 U.S.C. 1801(e)(1)). 

14 (6) FOREIGN INTELLIGENCE SURVEILLANCE

15 COURT.—The term ‘‘Foreign Intelligence Surveil16 lance Court’’ means the court established under sec17 tion 103(a) of the Foreign Intelligence Surveillance 

18 Act of 1978 (50 U.S.C. 1803(a)). 

19 (7) OFFICIALS OF THE DEPARTMENT OF HOME20 LAND SECURITY.—The term ‘‘officials of the Depart21 ment of Homeland Security’’ means officials and 

22 employees of the Department of Homeland Security, 

23 including officials and employees of U.S. Customs 

24 and Border Protection and U.S. Immigration and 


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1 Customs Enforcement, who are authorized to con2 duct searches at the border. 

3 (8) PERMANENTLY DESTROYED.—The term 

4 ‘‘permanently destroyed’’, with respect to informa5 tion stored electronically, means the information has 

6 been deleted and cannot be reconstructed or re7 trieved through any means. 

8 (9) REASONABLE SUSPICION.—The term ‘‘rea9 sonable suspicion’’ means a suspicion that has a par10 ticularized and objective basis. 

11 (10) SEARCH.— 

12 (A) IN GENERAL.—The term ‘‘search’’ 

13 means any inspection of any of the contents of 

14 any electronic equipment, including a visual 

15 scan of icons or file names. 

16 (B) EXCEPTION.—The term ‘‘search’’ does 

17 not include asking a person to turn electronic 

18 equipment on or off or to engage in similar ac19 tions to ensure that the electronic equipment is 

20 not itself dangerous. 

21 (11) SEIZURE.— 

22 (A) IN GENERAL.—The term ‘‘seizure’’ 

23 means the retention of electronic equipment or 

24 copies of any contents of electronic equipment 

25 for a period longer than 24 hours. 


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1 (B) EXCEPTIONS.—The term ‘‘seizure’’ 

2 does not include the retention of electronic 

3 equipment or copies of any contents of elec4 tronic equipment— 

5 (i) for a period of not more than 3 

6 days after the expiration of the 24-hour 

7 period specified in section 5(e) if an appli8 cation for a warrant is being prepared or 

9 pending in a district court of the United 

10 States; 

11 (ii) for a period of not more than 21 

12 days after the expiration of the 24-hour 

13 period specified in section 5(e) if an appli14 cation for an order from the Foreign Intel15 ligence Surveillance Court with respect to 

16 such equipment or copies is being pre17 pared; or 

18 (iii) if an application for an order 

19 from the Foreign Intelligence Surveillance 

20 Court with respect to such equipment or 

21 copies is pending before that Court. 

22 (12) UNITED STATES RESIDENT.—The term 

23 ‘‘United States resident’’ means a United States cit24 izen, an alien lawfully admitted for permanent resi25 dence under section 245 of the Immigration and NaVerDate Aug 31 2005 07:14 Oct 02, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 tionality Act (8 U.S.C. 1255), or a nonimmigrant 

2 alien described in section 101(a)(15) of such Act (8 

3 U.S.C. 1101(a)(15)) who is lawfully residing in the 

4 United States. 

5 SEC. 4. STANDARDS FOR SEARCHES AND SEIZURES. 

6 (a) SEARCHES.—Except as provided in subsection 

7 (c), electronic equipment transported by a United States 

8 resident may be searched at the border only if an official 

9 of the Department of Homeland Security has a reasonable 

10 suspicion that the resident— 

11 (1) is carrying contraband or is otherwise 

12 transporting goods or persons in violation of the 

13 laws enforced by officials of the Department of 

14 Homeland Security; or 

15 (2) is inadmissible or otherwise not entitled to 

16 enter the United States under the laws enforced by 

17 officials of the Department of Homeland Security. 

18 (b) SEIZURES.—Except as provided in subsection (c), 

19 electronic equipment transported by a United States resi20 dent may be seized at the border only if— 

21 (1) the Secretary of Homeland Security obtains 

22 a warrant based on probable cause to believe that 

23 the equipment contains information or evidence rel24 evant to a violation of any law enforced by the De25 partment of Homeland Security; 


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1 (2) another Federal, State, or local law enforce2 ment agency obtains a warrant based on probable 

3 cause to believe that the equipment contains infor4 mation or evidence relevant to a violation of any law 

5 enforced by that agency; or 

6 (3) an agency or department of the United 

7 States obtains an order from the Foreign Intel8 ligence Surveillance Court authorizing the seizure of 

9 foreign intelligence information. 

10 (c) EXCEPTIONS.—Nothing in this Act shall be con11 strued to affect the authority of any law enforcement offi12 cial to conduct a search incident to arrest, a search based 

13 upon voluntary consent, or any other search predicated on 

14 an established exception, other than the exception for bor15 der searches, to the warrant requirement of the fourth 

16 amendment to the Constitution of the United States. 

17 SEC. 5. PROCEDURES FOR SEARCHES. 

18 (a) INITIATING SEARCH.—Before beginning a search 

19 of electronic equipment transported by a United States 

20 resident at the border, the official of the Department of 

21 Homeland Security initiating the search shall— 

22 (1) obtain supervisory approval to engage in the 

23 search; 

24 (2) record— 


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1 (A) the nature of the reasonable suspicion 

2 and the specific basis or bases for that sus3 picion; 

4 (B) if travel patterns are cited as a basis 

5 for suspicion, the specific geographic area or 

6 areas of concern to which the resident traveled; 

7 (C) the age of the resident; 

8 (D) the sex of the resident; 

9 (E) the country of origin of the resident; 

10 (F) the citizenship or immigration status 

11 of the resident; and 

12 (G) the race or ethnicity of the resident, as 

13 perceived by the official of the Department of 

14 Homeland Security initiating the search. 

15 (b) CONDITIONS OF SEARCH.— 

16 (1) PRESENCE OF UNITED STATES RESI17 DENT.—The United States resident transporting the 

18 electronic equipment to be searched shall be per19 mitted to remain present during the search, whether 

20 the search occurs on- or off-site. 

21 (2) PRESENCE OF OFFICIALS OF THE DEPART22 MENT OF HOMELAND SECURITY.—Not fewer than 2 

23 officials of the Department of Homeland Security, 

24 including 1 supervisor, shall be present during the 

25 search. 


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1 (3) ENVIRONMENT.—The search shall take 

2 place in a secure environment where only the United 

3 States resident transporting the electronic equip4 ment and officials of the Department of Homeland 

5 Security are able to view the contents of the elec6 tronic equipment. 

7 (c) SCOPE OF SEARCH.—The search shall— 

8 (1) be tailored to the reasonable suspicion re9 corded by the official of the Department of Home10 land Security before the search began; and 

11 (2) be confined to documents, files, or other 

12 stored electronic information that could reasonably 

13 contain— 

14 (A) contraband; 

15 (B) evidence that the United States resi16 dent is transporting goods or persons in viola17 tion of the laws enforced by the Department of 

18 Homeland Security; or 

19 (C) evidence that the person is inadmis20 sible or otherwise not entitled to enter the 

21 United States under the laws enforced by offi22 cials of the Department of Homeland Security. 

23 (d) RECORD OF SEARCH.—At the time of the search, 

24 the official or agent of the Department of Homeland Secu25 rity conducting the search shall record a detailed descripVerDate Aug 31 2005 07:14 Oct 02, 2008 Jkt 069200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 tion of the search conducted, including the documents, 

2 files, or other stored electronic information searched. 

3 (e) CONCLUSION OF WARRANTLESS SEARCH.—At 

4 the conclusion of the 24-hour period following commence5 ment of a search of electronic equipment or the contents 

6 of electronic equipment at the border— 

7 (1) no further search of the electronic equip8 ment or any contents of the electronic equipment is 

9 permitted without a warrant or an order from the 

10 Foreign Intelligence Surveillance Court authorizing 

11 the seizure of the electronic equipment or the con12 tents of the electronic equipment; and 

13 (2) except as specified in section 6, the elec14 tronic equipment shall immediately be returned to 

15 the United States resident and any copies of the 

16 contents of the electronic equipment shall be perma17 nently destroyed not later than 3 days after the con18 clusion of the search. 

19 SEC. 6. PROCEDURES FOR SEIZURES. 

20 (a) APPLICATION FOR WARRANT BY THE DEPART21 MENT OF HOMELAND SECURITY.—If, after completing a 

22 search under section 5, an official of the Department of 

23 Homeland Security has probable cause to believe that the 

24 electronic equipment of a United States resident contains 

25 information or evidence relevant to a violation of any law 


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1 enforced by the Department, the Secretary of Homeland 

2 Security shall immediately apply for a warrant describing 

3 with particularity the electronic equipment or contents of 

4 the electronic equipment to be searched (if further search 

5 is required) and the contents to be seized. 

6 (b) DISCLOSURE OF INFORMATION AND APPLICA7 TION BY OTHER FEDERAL, STATE, OR LOCAL GOVERN8 MENT DEPARTMENTS OR AGENCIES.— 

9 (1) DISCLOSURE TO OTHER AGENCIES OR DE10 PARTMENTS.— 

11 (A) IN GENERAL.—If an official of the De12 partment of Homeland Security discovers, dur13 ing a search that complies with the require14 ments of section 5, information or evidence rel15 evant to a potential violation of a law with re16 spect to which another Federal, State, or local 

17 law enforcement agency has jurisdiction, the 

18 Secretary of Homeland Security may transmit a 

19 copy of that information or evidence to that law 

20 enforcement agency. 

21 (B) FOREIGN INTELLIGENCE INFORMA22 TION.—If an official the Department of Home23 land Security discovers, during a search that 

24 complies with the requirements of section 5, in25 formation that the Secretary of Homeland SeVerDate Aug 31 2005 07:14 Oct 02, 2008 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 curity believes to be foreign intelligence infor2 mation, the Secretary may transmit a copy of 

3 that information to the appropriate agency or 

4 department of the United States. 

5 (2) PROHIBITION ON TRANSMISSION OF OTHER

6 INFORMATION.—The Secretary may not transmit 

7 any information or evidence with respect to the con8 tents of the electronic equipment other than the in9 formation or evidence described in paragraph (1). 

10 (3) APPLICATION FOR WARRANT OR COURT

11 ORDER.— 

12 (A) IN GENERAL.—A Federal, State, or 

13 local law enforcement agency to which the Sec14 retary of Homeland Security transmits a copy 

15 of information or evidence pursuant to para16 graph (1)(A) may use the information or evi17 dence as the basis for an application for a war18 rant authorizing the seizure of the electronic 

19 equipment or any other contents of the elec20 tronic equipment. 

21 (B) FOREIGN INTELLIGENCE INFORMA22 TION.—An agency or department of the United 

23 States to which the Secretary transmits a copy 

24 of information pursuant to paragraph (1)(B) 

25 may use the information as the basis for an apVerDate Aug 31 2005 07:14 Oct 02, 2008 Jkt 069200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 plication for an order from the Foreign Intel2 ligence Surveillance Court authorizing the sei3 zure of the electronic equipment or any con4 tents of the electronic equipment. 

5 (c) RETENTION WHILE AN APPLICATION FOR A WAR6 RANT OR A COURT ORDER IS PENDING.— 

7 (1) ELECTRONIC EQUIPMENT.—The Secretary 

8 of Homeland Security— 

9 (A) may retain possession of the electronic 

10 equipment or copies of any contents of the elec11 tronic equipment— 

12 (i) for a period not to exceed 3 days 

13 after the expiration of the 24-hour period 

14 specified in section 5(e) if an application 

15 for a warrant described in subsection (a) 

16 or subsection (b)(3)(A) is being prepared 

17 or pending; 

18 (ii) for a period not to exceed 21 days 

19 after the expiration of the 24-hour period 

20 specified in section 5(e) while an applica21 tion for an order from the Foreign Intel22 ligence Surveillance Court described in 

23 subsection (b)(3)(B) is being prepared; or 

24 (iii) while an application for an order 

25 from the Foreign Intelligence Surveillance 


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1 Court described in subsection (b)(3)(B) is 

2 pending before that Court; and 

3 (B) may not further search the electronic 

4 equipment or the contents of the electronic 

5 equipment during a period described in sub6 paragraph (A). 

7 (2) INFORMATION TRANSMITTED TO OTHER

8 AGENCIES.— 

9 (A) IN GENERAL.—Any Federal, State, or 

10 local law enforcement agency that receives a 

11 copy of information or evidence pursuant to 

12 subsection (b)(1)(A) shall permanently destroy 

13 the copy not later than 3 days after receiving 

14 the copy unless the agency has obtained a war15 rant authorizing the seizure of the electronic 

16 equipment or copies of any contents of the elec17 tronic equipment. 

18 (B) FOREIGN INTELLIGENCE INFORMA19 TION.—Any agency or department of the 

20 United States that receives a copy of informa21 tion pursuant to subsection (b)(1)(B) shall per22 manently destroy the copy— 

23 (i) not later than 21 days after receiv24 ing the copy if a court order authorizing 

25 the seizure of the electronic equipment or 


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1 copies of any contents of the electronic 

2 equipment has not been obtained or denied 

3 and an application for such an order is not 

4 pending before the Foreign Intelligence 

5 Surveillance Court; or 

6 (ii) not later than 3 days after a de7 nial by the Foreign Intelligence Surveil8 lance Court of an application for a court 

9 order. 

10 (d) RETENTION UPON EXECUTION OF A WARRANT

11 OR COURT ORDER.— 

12 (1) IN GENERAL.—Upon execution of a warrant 

13 or an order of the Foreign Intelligence Surveillance 

14 Court, officials of the Department of Homeland Se15 curity, the Federal, State, or local law enforcement 

16 agency obtaining the warrant pursuant to subsection 

17 (b)(3)(A), or the agency or department of the 

18 United States obtaining the court order pursuant to 

19 subsection (b)(3)(B), as the case may be, may retain 

20 copies of the contents of the electronic equipment 

21 that the warrant or court order authorizes to be 

22 seized. 

23 (2) DESTRUCTION OF CONTENTS NOT AUTHOR24 IZED TO BE SEIZED.—Copies of any contents of the 

25 electronic equipment that are not authorized to be 


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1 seized pursuant to the warrant or court order de2 scribed in paragraph (1) shall be permanently de3 stroyed and the electronic equipment shall be re4 turned to the United States resident unless the war5 rant or court order authorizes seizure of the elec6 tronic equipment. 

7 (e) NONRETENTION UPON DENIAL OF WARRANT OR

8 COURT ORDER.—If the application for a warrant de9 scribed in subsection (a) or subsection (b)(3)(A) or for a 

10 court order described in subsection (b)(3)(B) is denied, 

11 the electronic equipment shall be returned to the United 

12 States resident and any copies of the contents of the elec13 tronic equipment shall be permanently destroyed not later 

14 than 3 days after the denial of the warrant or court order. 

15 (f) RECEIPT AND DISCLOSURE.—Any United States 

16 resident whose electronic equipment is removed from the 

17 resident’s possession for longer than a 24-hour period 

18 shall be provided with— 

19 (1) a receipt; 

20 (2) a statement of the rights of the resident 

21 and the remedies available to the resident under this 

22 Act; and 

23 (3) the name and telephone number of an offi24 cial of the Department of Homeland Security who 


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1 can provide the resident with information about the 

2 status of the electronic equipment. 

3 SEC. 7. PROHIBITION ON PROFILING. 

4 (a) IN GENERAL.—An official of the Department of 

5 Homeland Security may not consider race, ethnicity, na6 tional origin, or religion in selecting United States resi7 dents for searches of electronic equipment or in deter8 mining the scope or substance of such a search except as 

9 provided in subsection (b). 

10 (b) EXCEPTION WITH RESPECT TO DESCRIPTIONS

11 OF PARTICULAR PERSONS.—An official of the Depart12 ment of Homeland Security may consider race, ethnicity, 

13 national origin, or religion in selecting United States resi14 dent for searches of electronic equipment only to the ex15 tent that race, ethnicity, national origin, or religion, as 

16 the case may be, is included among other factors in a de17 scription of a particular person for whom reasonable sus18 picion is present, based on factors unrelated to race, eth19 nicity, national origin, or religion. 

20 (c) REPORTS.— 

21 (1) IN GENERAL.—Not later than 1 year after 

22 the date of the enactment of this Act, and annually 

23 thereafter, the Inspector General and the Officer for 

24 Civil Rights and Civil Liberties of the Department 


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1 of Homeland Security shall jointly issue a public re2 port that— 

3 (A) assesses the compliance of the Depart4 ment of Homeland Security with the prohibition 

5 under subsection (a); 

6 (B) assesses the impact of searches of elec7 tronic equipment by the Department of Home8 land Security on racial, ethnic, national, and re9 ligious minorities, including whether such 

10 searches have a disparate impact; and 

11 (C) includes any recommendations for 

12 changes to the policies and procedures of the 

13 Department of Homeland Security with respect 

14 to searches of electronic equipment to improve 

15 the compliance of the Department with the pro16 hibition under subsection (a). 

17 (2) RESOURCES.—The Secretary of Homeland 

18 Security shall ensure that the Inspector General and 

19 the Officer for Civil Rights and Civil Liberties are 

20 provided the necessary staff, resources, data, and 

21 documentation to issue the reports required under 

22 paragraph (1), including the information described 

23 in sections 5(a)(2) and 5(d) if requested by the In24 spector General or the Officer for Civil Rights and 

25 Civil Liberties. 


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1 (d) SURVEY.—To facilitate an understanding of the 

2 impact on racial, ethnic, national, and religious minorities 

3 of searches of electronic equipment at the border, the Sec4 retary of Homeland Security shall conduct a random sam5 pling of a statistically significant number of travelers and 

6 record for such travelers the demographic information de7 scribed in subparagraphs (C) through (G) of section 

8 5(a)(2). That information shall be maintained by the De9 partment of Homeland Security in aggregate form only. 

10 SEC. 8. LIMITS ON ACCESS AND DISCLOSURE. 

11 (a) SCOPE.—The limitations on access and disclosure 

12 set forth in this section apply to any electronic equipment, 

13 copies of contents of electronic equipment, or information 

14 acquired pursuant to a search of electronic equipment at 

15 the border, other than such equipment, copies, or informa16 tion seized pursuant to a warrant or court order. 

17 (b) ACCESS.—No official, employee, or agent of the 

18 Department of Homeland Security or any Federal, State, 

19 or local government agency or department may have ac20 cess to electronic equipment or copies of the contents of 

21 the electronic equipment acquired pursuant to a search of 

22 electronic equipment at the border other than such an offi23 cial, employee, or agent who requires such access in order 

24 to perform a function specifically provided for under this 

25 Act. 


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1 (c) SECURITY.—The Secretary of Homeland Security 

2 and the head of any Federal, State, or local government 

3 agency or departments that comes into possession of elec4 tronic equipment or any copies of the contents of elec5 tronic equipment pursuant to a search of electronic equip6 ment at the border shall ensure that— 

7 (1) the electronic equipment is secured against 

8 theft or unauthorized access; and 

9 (2) any electronic copies of the contents of elec10 tronic equipment are encrypted or otherwise secured 

11 against theft or unauthorized access. 

12 (d) GENERAL PROHIBITION ON DISCLOSURE.—No 

13 information acquired by officials, employees, or agents of 

14 the Department of Homeland Security or any Federal, 

15 State, or local government agency or department pursuant 

16 to a search of electronic equipment at the border shall be 

17 shared with or disclosed to any other Federal, State, or 

18 local government agency or official or any private person 

19 except as specifically provided in this Act. 

20 (e) COURT ORDER EXCEPTION.—If the Secretary of 

21 Homeland Security or any other Federal, State, or local 

22 government agency or department determines that a dis23 closure of information that is not authorized by this Act 

24 is necessary to prevent grave harm to persons or property, 

25 the Secretary or agency or department, as the case may 


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1 be, may apply ex parte to a district court of the United 

2 States for an order permitting such disclosure. 

3 (f) PRIVILEGES.—Any disclosure of privileged infor4 mation that results directly from a search of electronic 

5 equipment at the border shall not operate as a waiver of 

6 the privilege. 

7 (g) APPLICABILITY OF PRIVACY ACT.—The limita8 tions on access and disclosure under this Act supplement 

9 rather than supplant any applicable limitations set forth 

10 in section 552a of title 5, United States Code. 

11 SEC. 9. IMPLEMENTATION. 

12 (a) REGULATIONS.—The Secretary of Homeland Se13 curity shall issue regulations to carry out this Act. 

14 (b) TRAINING.—The Secretary of Homeland Security 

15 shall ensure that all officials and agents of the Depart16 ment of Homeland Security engaged in searches of elec17 tronic equipment at the border are thoroughly and ade18 quately trained in the laws and procedures related to such 

19 searches. 

20 (c) ACCOUNTABILITY.—The Secretary of Homeland 

21 Security shall implement procedures to detect and dis22 cipline violations of this Act by officials, employees, and 

23 agents of the Department of Homeland Security. 

24 SEC. 10. RECORDKEEPING AND REPORTING. 

25 (a) REPORTS TO CONGRESS.— 


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1 (1) EXISTING POLICIES AND GUIDELINES.—Not 

2 later than 30 days after the date of the enactment 

3 of this Act, the Secretary of Homeland Security 

4 shall submit to Congress a report that includes— 

5 (A) the policies and guidelines of the De6 partment of Homeland Security, including field 

7 supervision and intelligence directives, relating 

8 to searches of electronic equipment at the bor9 der in effect on the date of the enactment of 

10 this Act; 

11 (B) any training programs or materials re12 lating to such searches being utilized on such 

13 date of enactment; and 

14 (C) any personnel review and account15 ability procedures, or memoranda of under16 standing with other government agencies, relat17 ing to such searches in effect on such date of 

18 enactment. 

19 (2) UPDATED POLICIES AND GUIDELINES.—Not 

20 later than 30 days after revising any of the policies, 

21 guidelines, programs, materials, procedures, or 

22 memoranda described in paragraph (1) or developing 

23 new such policies, guidelines, programs, materials, 

24 procedures, or memoranda, the Secretary of Home25 land Security shall submit to Congress a report conVerDate Aug 31 2005 07:14 Oct 02, 2008 Jkt 069200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 taining the revised or new policies, guidelines, pro2 grams, materials, procedures, or memoranda. 

3 (3) INFORMATION ABOUT IMPLEMENTATION.— 

4 (A) REQUESTS.—The information de5 scribed in subsection (b)(1)(B) and sections 

6 5(a)(2) and 5(d) shall be made available to 

7 Congress promptly upon the request of any 

8 Member of Congress. 

9 (B) REPORTS.—The information described 

10 in section 5(a)(2) shall be provided to Congress 

11 in aggregate form every 6 months. 

12 (4) PUBLIC AVAILABILITY.—The Secretary of 

13 Homeland Security shall make the information in 

14 the reports required under paragraphs (1), (2), and 

15 (3)(B) available to the public, but may redact any 

16 information in those reports if the Secretary deter17 mines that public disclosure of the information 

18 would cause harm to national security. 

19 (b) MAINTENANCE OF RECORDS.— 

20 (1) IN GENERAL.—The Secretary of Homeland 

21 Security shall maintain records with respect to— 

22 (A) the information described in sections 

23 5(a)(2) and 5(d); and 

24 (B) any disclosures of information ac25 quired through searches of electronic equipment 


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1 at the border to other agencies, officials, or pri2 vate persons, and the reasons for such disclo3 sures. 

4 (2) LIMITATIONS ON ACCESS AND DISCLO5 SURE.—The information described in paragraph 

6 (1)— 

7 (A) may be used or disclosed only as spe8 cifically provided in this Act or another Federal 

9 law and access to that information shall be lim10 ited to officials or agents of the Department of 

11 Homeland Security who require access in order 

12 to effectuate an authorized use or disclosure; 

13 and 

14 (B) shall be encrypted or otherwise pro15 tected against theft or authorized access. 

16 (3) USE IN LITIGATION.—If otherwise discover17 able, the information in subsection (b)(1)(B) and 

18 sections 5(a)(2) and 5(d) may be provided to a per19 son who files a civil action under section 12(a) or a 

20 criminal defendant seeking to suppress evidence ob21 tained through a search of electronic equipment at 

22 the border pursuant to section 12(d). 


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1 SEC. 11. COMPENSATION FOR DAMAGE OR LOSS OF ELEC2 TRONIC EQUIPMENT. 

3 (a) IN GENERAL.—A United States resident who be4 lieves that the electronic equipment of the resident, or con5 tents of the electronic equipment, were damaged as a re6 sult of a search or seizure under this Act may file a claim 

7 with the Secretary of Homeland Security for compensa8 tion. If the resident demonstrates that the search or sei9 zure resulted in damage to the electronic equipment or the 

10 contents of the electronic equipment, the Secretary shall 

11 compensate the resident for any resulting economic loss 

12 using existing appropriations available for the Department 

13 of Homeland Security. 

14 (b) CLAIMS PROCESS.—The Secretary of Homeland 

15 Security shall establish an administrative claims process 

16 to handle the claims described in subsection (a). The com17 pensation decisions of the Secretary shall constitute final 

18 agency actions for purposes of judicial review under chap19 ter 5 of title 5, United States Code. 

20 SEC. 12. ENFORCEMENT AND REMEDIES. 

21 (a) CIVIL ACTIONS.— 

22 (1) IN GENERAL.—Any person injured by a vio23 lation of this Act may file a civil action in a district 

24 court of the United States against the United States 

25 or an individual officer or agent of the United States 

26 for declaratory or injunctive relief or damages. 


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1 (2) STATUTE OF LIMITATIONS.—A civil action 

2 under paragraph (1) shall be filed not later than 2 

3 years after the later of— 

4 (A) the date of the alleged violation of this 

5 Act; or 

6 (B) the date on which the person who files 

7 the civil action reasonably should have known of 

8 the alleged violation. 

9 (3) DAMAGES.—A person who demonstrates 

10 that the person has been injured by a violation of 

11 this Act may receive liquidated damages of $1,000 

12 or actual economic damages, whichever is higher. 

13 (4) SPECIAL RULE WITH RESPECT TO CIVIL AC14 TIONS FOR PROFILING.—In the case of a civil action 

15 filed under paragraph (1) that alleges a violation of 

16 section 7, proof that searches of the electronic equip17 ment of United States residents at the border have 

18 a disparate impact on racial, ethnic, religious, or na19 tional minorities shall constitute prima facie evi20 dence of the violation. 

21 (5) ATTORNEY’S FEES.—In any civil action 

22 filed under paragraph (1), the district court may 

23 allow a prevailing plaintiff reasonable attorney’s fees 

24 and costs, including expert fees. 


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1 (b) ADMISSIBILITY OF INFORMATION IN CRIMINAL

2 ACTIONS.—In any criminal prosecution brought in a dis3 trict court of the United States, the court may exclude 

4 evidence obtained as a direct or indirect result of a viola5 tion of this Act if the exclusion would serve the interests 

6 of justice. 

Æ 


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