Bill Summary

Bill Summary

Short Title

This Act may be cited as the 'Protecting Data at the Border Act'.

Findings

The bill recognizes the following:

US persons have a reasonable expectation of privacy in the digital contents of their electronic equipment and online accounts.
The Supreme Court has recognized the privacy interests in electronic equipment like cell phones.
The privacy interest of US persons in their digital contents differs from their privacy interest in closed containers.
Accessing the digital contents of electronic equipment, online accounts, or obtaining online presence information without a lawful warrant is unreasonable under the Fourth Amendment.

Scope

The bill does not prohibit a Governmental entity from conducting an inspection of electronic equipment without a warrant to determine the presence of weapons or contraband. It also does not limit the authority of a Governmental entity under the Foreign Intelligence Surveillance Act.

Definitions

'Access credential' includes usernames, passwords, PIN numbers, fingerprints, or biometric indicators.
'Border' means the international border of the United States and its functional equivalent.
'Digital contents' means any signs, signals, writing, images, sounds, data, or intelligence transmitted or stored in electronic equipment or online accounts.
'Electronic communication service' has the meaning given in section 2510 of title 18, United States Code.
'Electronic equipment' means computers.
'Governmental entity' means a department or agency of the United States.
'Online account' means an online account with an electronic communication service or remote computing service.
'Online account information' means the screen name or other identifier that would allow a Governmental entity to identify the online presence of an individual.
'Remote computing service' has the meaning given in section 2711 of title 18, United States Code.
'United States person' means an individual who is a United States person as defined in section 101 of the Foreign Intelligence Surveillance Act.

Procedures for Lawful Access to Digital Data at the Border

A Governmental entity may not access the digital contents of electronic equipment belonging to or in the possession of a US person at the border without a valid warrant supported by probable cause. They also cannot deny entry or exit based on a refusal to disclose access credentials or provide access to digital contents or online account information. Entry or exit may not be delayed for more than 4 hours.

Emergency Exceptions

In emergency situations, an investigative or law enforcement officer may access digital contents without a warrant if they reasonably determine that an emergency situation exists involving threat to life, national security, or organized crime. The officer must apply for a warrant as soon as possible, but not later than 7 days after the emergency access.

Informed Consent in Writing

A Governmental entity must provide written notice before requesting consent to access digital contents or access credentials. The person must be informed of their rights and protections under the Act.

Retention of Digital Contents

If a Governmental entity obtains access to digital contents, they may not make or retain a copy unless they have probable cause to believe it contains evidence of a crime. If access is obtained unlawfully, any copies must be destroyed, and the information may not be disclosed or shared with other authorities.

Recordkeeping

A Governmental entity must keep a record of each instance in which they access digital contents or online account information at the border, including the reason for access, nature of access, and whether any equipment was seized.

Limits on Use of Digital Contents as Evidence

If digital contents or online account information is obtained in violation of this Act, it cannot be used as evidence in any trial or proceeding.

Limits on Seizure of Electronic Equipment

Electronic equipment belonging to or in the possession of a US person at the border may only be seized if there is probable cause to believe it contains information relevant to a felony allegation.

Audit and Reporting Requirements

The Secretary of Homeland Security must submit an annual report to Congress and make it publicly available. The report must include data on the number of times access was granted to digital contents, consent was requested, and digital contents were accessed without a valid warrant. It must also include demographic data on the individuals for whom access was granted.

Rep. Adam Smith

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