II 

116TH CONGRESS 

1ST SESSION S. 1606 

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 

MAY 22, 2019 

Mr. WYDEN (for himself, Mr. PAUL, Mr. MARKEY, and Mr. MERKLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

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. DEFINITIONS. 

25 As used in this Act— 


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

2 username, password, PIN number, fingerprint, or bi3 ometric indicator; 

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

5 border of the United States and the functional 

6 equivalent of such border; 

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

8 signs, signals, writing, images, sounds, data, or in9 telligence of any nature transmitted in whole or in 

10 part by electronic equipment, or stored in electronic 

11 equipment or an online account; 

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

13 has the meaning given that term in section 2510 of 

14 title 18, United States Code; 

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

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

17 1030(e) of title 18, United States Code; 

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

19 department or agency of the United States (includ20 ing any officer, employee, or contractor or other 

21 agent thereof); 

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

23 account with an electronic communication service or 

24 remote computing service; 


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

2 means the screen name or other identifier or infor3 mation that would allow a Governmental entity to 

4 identify the online presence of an individual; 

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

6 the meaning given that term in section 2711 of title 

7 18, United States Code; and 

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

9 individual who is a United States person, as defined 

10 in section 101 of the Foreign Intelligence Surveil11 lance Act of 1978 (50 U.S.C. 1801). 

12 SEC. 4. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL 

13 DATA AT THE BORDER. 

14 (a) STANDARD.—Subject to subsection (b), a Govern15 mental entity may not— 

16 (1) access the digital contents of any electronic 

17 equipment belonging to or in the possession of a 

18 United States person at the border without a valid 

19 warrant supported by probable cause issued using 

20 the procedures described in the Federal Rules of 

21 Criminal Procedure by a court of competent jurisdic22 tion; 

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

24 States by a United States person based on a refusal 

25 by the United States person to— 


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1 (A) disclose an access credential that 

2 would enable access to the digital contents of 

3 electronic equipment or the digital contents of 

4 an online account; 

5 (B) provide access to the digital contents 

6 of electronic equipment or the digital contents 

7 of an online account; or 

8 (C) provide online account information; or 

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

10 States by a United States person for longer than the 

11 period of time, which may not exceed 4 hours, nec12 essary to determine whether the United States per13 son will, in a manner in accordance with subsection 

14 (c), consensually provide an access credential, ac15 cess, or online account information, as described in 

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

17 (b) EMERGENCY EXCEPTIONS.— 

18 (1) EMERGENCY SITUATIONS GENERALLY.— 

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

20 enforcement officer of a Governmental entity 

21 who is designated by the Secretary of Home22 land Security for purposes of this paragraph 

23 may access the digital contents of electronic 

24 equipment belonging to or in possession of a 

25 United States person at the border without a 


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1 warrant described in subsection (a)(1) if the in2 vestigative or law enforcement officer— 

3 (i) reasonably determines that— 

4 (I) an emergency situation exists 

5 that involves— 

6 (aa) immediate danger of 

7 death or serious physical injury 

8 to any person; 

9 (bb) conspiratorial activities 

10 threatening the national security 

11 interest of the United States; or 

12 (cc) conspiratorial activities 

13 characteristic of organized crime; 

14 (II) the emergency situation de15 scribed in subclause (I) requires ac16 cess to the digital contents of the elec17 tronic equipment before a warrant de18 scribed in subsection (a)(1) author19 izing such access can, with due dili20 gence, be obtained; and 

21 (III) there are grounds upon 

22 which a warrant described in sub23 section (a)(1) could be issued author24 izing such access; and 


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1 (ii) makes an application in accord2 ance with this section for a warrant de3 scribed in subsection (a)(1) as soon as 

4 practicable, but not later than 7 days after 

5 the investigative or law enforcement officer 

6 accesses the digital contents under the au7 thority under this subparagraph. 

8 (B) WARRANT NOT OBTAINED.—If an ap9 plication for a warrant described in subpara10 graph (A)(ii) is denied, or in any other case in 

11 which an investigative or law enforcement offi12 cer accesses the digital contents of electronic 

13 equipment belonging to or in possession of a 

14 United States person at the border without a 

15 warrant under the emergency authority under 

16 subparagraph (A) and a warrant authorizing 

17 the access is not obtained— 

18 (i) any copy of the digital contents in 

19 the custody or control of a Governmental 

20 entity shall immediately be destroyed; 

21 (ii) the digital contents, and any in22 formation derived from the digital con23 tents, may not be disclosed to any Govern24 mental entity or a State or local govern25 ment; and 


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1 (iii) the Governmental entity employ2 ing the investigative or law enforcement of3 ficer that accessed the digital contents 

4 shall notify the United States person that 

5 any copy of the digital contents has been 

6 destroyed. 

7 (2) PROTECTION OF PUBLIC SAFETY AND

8 HEALTH.—A Governmental entity may access the 

9 digital contents of electronic equipment belonging to 

10 or in possession of a United States person at the 

11 border without a warrant described in subsection 

12 (a)(1) if the access is— 

13 (A) necessary for the provision of fire, 

14 medical, public safety, or other emergency serv15 ices; and 

16 (B) unrelated to the investigation of a pos17 sible crime or other violation of the law. 

18 (c) INFORMED CONSENT IN WRITING.— 

19 (1) NOTICE.— 

20 (A) IN GENERAL.—A Governmental entity 

21 shall provide the notice described in subpara22 graph (B) before requesting that a United 

23 States person at the border— 

24 (i) provide consent to access the dig25 ital contents of any electronic equipment 


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1 belonging to or in the possession of or the 

2 digital contents of an online account of the 

3 United States person; 

4 (ii) disclose an access credential that 

5 would enable access to the digital contents 

6 of electronic equipment or the digital con7 tents of an online account of the United 

8 States person; 

9 (iii) provide access to the digital con10 tents of electronic equipment or the digital 

11 contents of an online account of the United 

12 States person; or 

13 (iv) provide online account informa14 tion of the United States person. 

15 (B) CONTENTS.—The notice described in 

16 this subparagraph is written notice in a lan17 guage understood by the United States person 

18 that the Governmental entity— 

19 (i) may not— 

20 (I) compel access to the digital 

21 contents of electronic equipment be22 longing to or in the possession of, the 

23 digital contents of an online account 

24 of, or the online account information 


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1 of a United States person without a 

2 valid warrant; 

3 (II) deny entry into or exit from 

4 the United States by the United 

5 States person based on a refusal by 

6 the United States person to— 

7 (aa) disclose an access cre8 dential that would enable access 

9 to the digital contents of elec10 tronic equipment or the digital 

11 contents of an online account; 

12 (bb) provide access to the 

13 digital contents of electronic 

14 equipment or the digital contents 

15 of an online account; or 

16 (cc) provide online account 

17 information; or 

18 (III) delay entry into or exit from 

19 the United States by the United 

20 States person for longer than the pe21 riod of time, which may not exceed 4 

22 hours, necessary to determine whether 

23 the United States person will consen24 sually provide an access credential, ac25 cess, or online account information, as 


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

2 of subclause (II); and 

3 (ii) if the Governmental entity has 

4 probable cause that the electronic equip5 ment contains information that is relevant 

6 to an allegation that the United States 

7 person has committed a felony, may seize 

8 electronic equipment belonging to or in the 

9 possession of the United States person for 

10 a period of time if the United States per11 son refuses to consensually provide access 

12 to the digital contents of the electronic 

13 equipment. 

14 (2) CONSENT.— 

15 (A) IN GENERAL.—A Governmental entity 

16 shall obtain written consent described in sub17 paragraph (B) before— 

18 (i) accessing, pursuant to the consent 

19 of a United States person at the border 

20 the digital contents of electronic equipment 

21 belonging to or in the possession of or the 

22 digital contents of an online account of the 

23 United States person; 

24 (ii) obtaining, pursuant to the consent 

25 of a United States person at the border, an 


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1 access credential of the United States per2 son that would enable access to the digital 

3 contents of electronic equipment or the 

4 digital contents of an online account; or 

5 (iii) obtaining, pursuant to the con6 sent of a United States person at the bor7 der, online account information for an on8 line account of the United States person. 

9 (B) CONTENTS OF WRITTEN CONSENT.— 

10 Written consent described in this subparagraph 

11 is written consent that— 

12 (i) indicates the United States person 

13 understands the protections and limitations 

14 described in paragraph (1)(B); 

15 (ii) states the United States person 

16 is— 

17 (I) providing consent to the Gov18 ernmental entity to access certain dig19 ital contents or consensually disclosing 

20 an access credential; or 

21 (II) consensually providing online 

22 account information; and 

23 (iii) specifies the digital contents, ac24 cess credential, or online account informaVerDate Sep 11 2014 01:41 May 31, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1606.IS S1606

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1 tion with respect to which the United 

2 States person is providing consent. 

3 (d) RETENTION OF DIGITAL CONTENTS.— 

4 (1) LAWFUL ACCESS.—A Governmental entity 

5 that obtains access to the digital contents of elec6 tronic equipment, the digital contents of an online 

7 account, or online account information in accordance 

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

9 the digital contents or online account information, or 

10 any information directly or indirectly derived from 

11 the digital contents or online account information, 

12 unless there is probable cause to believe the digital 

13 contents or online account information contains evi14 dence of, or constitutes the fruits of, a crime. 

15 (2) UNLAWFUL ACCESS.—If a Governmental 

16 entity obtains access to the digital contents of elec17 tronic equipment, digital contents of an online ac18 count, or online account information in a manner 

19 that is not in accordance with this section, the Gov20 ernmental entity— 

21 (A) shall immediately destroy any copy of 

22 the digital contents or online account informa23 tion, and any information directly or indirectly 

24 derived from the digital contents or online acVerDate Sep 11 2014 01:41 May 31, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1606.IS S1606

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1 count information, in the custody or control of 

2 the Governmental entity; 

3 (B) may not disclose the digital contents 

4 or online account information, or any informa5 tion directly or indirectly derived from the dig6 ital contents or online account information, to 

7 any other Governmental entity or a State or 

8 local government; and 

9 (C) shall notify the United States person 

10 that any copy of the digital contents or online 

11 account information, and any information di12 rectly or indirectly derived from the digital con13 tents or online account information, has been 

14 destroyed. 

15 (e) RECORDKEEPING.—A Governmental entity shall 

16 keep a record of each instance in which the Governmental 

17 entity obtains access to the digital contents of electronic 

18 equipment belonging to or in the possession of an indi19 vidual at the border, the digital contents of an online ac20 count of an individual who is at the border, or online ac21 count information of an individual who is at the border, 

22 which shall include— 

23 (1) the reason for the access; 

24 (2) the nationality, immigration status, and ad25 mission category of the individual; 


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

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

3 what the individual consented, and what the indi4 vidual provided by consent; 

5 (5) whether electronic equipment of the indi6 vidual was seized; 

7 (6) whether the Governmental entity made a 

8 copy of all or a portion of the digital contents or on9 line account information, or any information directly 

10 or indirectly derived from the digital contents or on11 line account information; and 

12 (7) whether the digital contents or online ac13 count information, or any information directly or in14 directly derived from the digital contents or online 

15 account information, was shared with another Gov16 ernmental entity or a State or local government. 

17 SEC. 5. LIMITS ON USE OF DIGITAL CONTENTS AS EVI18 DENCE. 

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

20 online account information have been obtained in violation 

21 of this Act, no part of the digital contents or online ac22 count information and no evidence derived therefrom may 

23 be received in evidence in any trial, hearing, or other pro24 ceeding (including any proceeding relating to the immigra25 tion laws, as defined in section 101(a) of the Immigration 


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

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

3 body, legislative committee, or other authority of the 

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

5 (b) APPLICATION.—To the maximum extent prac6 ticable, the limitations under subsection (a) shall be ap7 plied in the same manner as the limitations under section 

8 2515 of title 18, United States Code. 

9 SEC. 6. LIMITS ON SEIZURE OF ELECTRONIC EQUIPMENT. 

10 A Governmental entity may not seize any electronic 

11 equipment belonging to or in the possession of a United 

12 States person at the border unless there is probable cause 

13 to believe that the electronic equipment contains informa14 tion that is relevant to an allegation that the United 

15 States person has committed a felony. 

16 SEC. 7. AUDIT AND REPORTING REQUIREMENTS. 

17 In March of each year, the Secretary of Homeland 

18 Security shall submit to Congress and make publicly avail19 able on the website of the Department of Homeland Secu20 rity a report that includes the following: 

21 (1) The number of times during the previous 

22 year that an officer or employee of the Department 

23 of Homeland Security did each of the following: 

24 (A) Accessed the digital contents of any 

25 electronic equipment belonging to or in the posVerDate Sep 11 2014 01:41 May 31, 2019 Jkt 089200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1606.IS S1606

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1 session of or the digital contents of an online 

2 account of a United States person at the border 

3 pursuant to a warrant supported by probable 

4 cause issued using the procedures described in 

5 the Federal Rules of Criminal Procedure by a 

6 court of competent jurisdiction. 

7 (B) Accessed the digital contents of any 

8 electronic equipment belonging to or in the pos9 session of a United States person at the border 

10 pursuant to the emergency authority under sec11 tion 5(b). 

12 (C) Requested consent to access the digital 

13 contents of any electronic equipment belonging 

14 to or in the possession of, the digital contents 

15 of an online account of, or online account infor16 mation of a United States person at the border. 

17 (D) Accessed the digital contents of any 

18 electronic equipment belonging to or in the pos19 session of, the digital contents of an online ac20 count of, or online account information of a 

21 United States person at the border pursuant to 

22 written consent provided in accordance with 

23 section 5(c). 

24 (E) Requested a United States person at 

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1 dential that would enable access to the digital 

2 contents of electronic equipment or the digital 

3 contents of an online account of the United 

4 States person. 

5 (F) Accessed the digital contents of elec6 tronic equipment or the digital contents of an 

7 online account of a United States person at the 

8 border using an access credential pursuant to 

9 written consent provided in accordance with 

10 section 5(c). 

11 (G) Accessed the digital contents of any 

12 electronic equipment belonging to or in the pos13 session of, the digital contents of an online ac14 count of, or online account information of a 

15 United States person at the border in a manner 

16 that was not in accordance with section 5. 

17 (H) Accessed the digital contents of any 

18 electronic equipment belonging to or in the pos19 session of, the digital contents of an online ac20 count of, or online account information of an 

21 individual who is not a United States person at 

22 the border. 

23 (I) Accessed the digital contents of any 

24 electronic equipment belonging to or in the pos25 session of an individual at the border, the digVerDate Sep 11 2014 01:41 May 31, 2019 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1606.IS S1606

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1 ital contents of an online account of an indi2 vidual at the border, or online account informa3 tion of an individual at the border (regardless 

4 of whether the individual is a United States 

5 person) at the request of a Governmental entity 

6 (including another component of the Depart7 ment of Homeland Security) that is not the 

8 Governmental entity employing the individual 

9 accessing the digital contents or online account 

10 information. 

11 (2) Aggregate data on— 

12 (A) the number of United States persons 

13 for which a Governmental entity obtains access 

14 to— 

15 (i) the digital contents of electronic 

16 equipment belonging to or in the posses17 sion of the United States person at the 

18 border; 

19 (ii) the digital contents of an online 

20 account of the United States person while 

21 at the border; or 

22 (iii) online account information of the 

23 United States person while at the border; 

24 (B) the country from which United States 

25 persons departed most recently before arriving 


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1 in the United States for the United States per2 sons for which a Governmental entity obtains 

3 access to— 

4 (i) the digital contents of electronic 

5 equipment belonging to or in the posses6 sion of the United States person at the 

7 border; 

8 (ii) the digital contents of an online 

9 account of the United States person while 

10 at the border; or 

11 (iii) online account information of the 

12 United States person while at the border; 

13 (C) the number and nationality of individ14 uals who are not United States persons for 

15 which a Governmental entity obtains access 

16 to— 

17 (i) the digital contents of electronic 

18 equipment belonging to or in the posses19 sion of the individuals at the border; 

20 (ii) the digital contents of an online 

21 account of the individuals while at the bor22 der; or 

23 (iii) online account information of the 

24 individuals while at the border; and 


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1 (D) the country from which individuals 

2 who are not United States persons departed 

3 most recently before arriving in the United 

4 States for the individuals for which a Govern5 mental entity obtains access to— 

6 (i) the digital contents of electronic 

7 equipment belonging to or in the posses8 sion of the individuals at the border; 

9 (ii) the digital contents of an online 

10 account of the individuals while at the bor11 der; or 

12 (iii) online account information of the 

13 individuals while at the border. 

14 (3) Aggregate data regarding the perceived race 

15 and ethnicity of individuals for whom a Govern16 mental entity obtains access to— 

17 (A) the digital contents of electronic equip18 ment belonging to or in the possession of the 

19 individuals at the border; 

20 (B) the digital contents of an online ac21 count of the individuals while at the border; or 

22 (C) online account information of the indi23 viduals while at the border. 

24 SEC. 8. SAVINGS PROVISIONS. 

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.). 

Æ 


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