Short title

This Act may be cited as the

Border Security Search Accountability Act of 2008

Rule with respect to border security searches of electronic devices

(a)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary, acting through the Commissioner of United States Customs and Border Protection, in coordination with the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement and the senior official appointed pursuant to section 222 of the Homeland Security Act of 2002 (6 U.S.C. 142), shall issue a rule with respect to the scope of and procedural and recordkeeping requirements associated with border security searches of electronic devices. (b)

Content

The rule issued pursuant to subsection (a) shall include the following: (1)A requirement that information collected during a border security search of an electronic device that is determined to be commercial information, including trade secrets, information subject to attorney-client privilege, information subject to doctor-patient privilege, or information subject to another privilege or protection shall be handled consistent with the laws, rules, and regulations governing such information and shall not be shared with a Federal, State, local, tribal, or foreign agency unless it is determined that such agency has the mechanisms in place to comply with such laws, rules, and regulations. (2)A requirement that authorized agents, to the greatest extent practicable, conduct all border security searches of electronic devices in the presence of a supervisor and, where appropriate, in the presence of the individuals whose electronic devices are subject to such searches. (3)A determination of the number of days that an electronic device subjected to a border security search or the information collected from such device may be retained, unless probable cause exists, that prohibits retention exceeding the period necessary to translate, decrypt, or reasonably search such device or information and that requires such information to be destroyed if in the custody of an authorized agent after such number of days. (4)A requirement that if information collected from an electronic device subjected to a border security search is copied, shared, retained, or entered into an electronic database, the individual from whose electronic device such information is collected shall receive written notification of such copying, sharing, retention, or entry unless such notification would hinder an investigation involving national security or would meet another criteria established by the Secretary in the rule. (5)A requirement that an individual subjected to a border security search of an electronic device shall receive a receipt for such device if such device is removed from the possession of such individual. (6)A requirement that an individual subjected to a border security search of an electronic device shall receive notice of how to report abuses or concerns and how to seek redress from the Department of Homeland Security. (7)A requirement that information on the rights of individuals with respect to border security searches and Department of Homeland Security redress procedures shall be posted at all ports of entry in locations that are likely to be viewed by individuals subject to border security searches. (8)A privacy impact assessment of the rule, as prepared by the senior official appointed pursuant to section 222 of the Homeland Security Act of 2002, that includes recommendations with respect to the copying, sharing, retention, and entry into an electronic database of personally identifiable information collected from electronic devices subjected to a border security search. (9)A civil liberties impact assessment of the rule, as prepared by the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security.

Training and auditing with respect to the rule

(a)

Training

The Secretary shall provide each authorized agent with appropriate training to conduct border security searches of electronic devices in accordance with the rule issued pursuant to section 2. The training shall include instruction on constitutional, privacy, civil rights, and civil liberties issues related to such searches. (b)

Auditing

The Secretary, acting through the Inspector General of the Department of Homeland Security, shall develop and annually administer an auditing mechanism to review whether authorized agents are conducting border security searches of electronic devices in accordance with the rule issued pursuant to section 2.

Report

Not later than 180 days after the effective date of the rule issued pursuant to section 2, and quarterly thereafter, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives a report that shall include the following: (1)A description of the activities of authorized agents with respect to border security searches of electronic devices. (2)A description of the manner in which the Department of Homeland Security has complied with this Act. (3)The number, by port of entry, of border security searches of electronic devices conducted during the reporting period. (4)The number, by port of entry, of instances during the reporting period that information from an electronic device subjected to a border security search was retained, copied, shared, or entered in an electronic database, including the number of electronic devices retained as the result of a border security search. (5)The race, ethnicity, national origin, and citizenship of each individual whose electronic device was subjected to a border security search during the reporting period, to determine the existence or absence of racial profiling. (6)The number of instances during the reporting period that information collected from an electronic device subjected to a border security search was referred to a law enforcement or intelligence agency for further action, including whether such information resulted in a prosecution or conviction.

Definitions

In this Act, the following definitions apply: (1)

Authorized agent

The term authorized agent means an agent, officer, or official of United States Customs and Border Protection, United States Immigration and Customs Enforcement, or any other office or agency of the Department of Homeland Security who is authorized to conduct a border security search. (2)

Border security search

The term border security search means a search by an authorized agent of persons, baggage, or cargo entering, departing, or passing through the United States through any port of entry. (3)

Electronic device

The term electronic device means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions, such as a computer, a cellular telephone, or any other device used for electronic communication or for storing electronic, digital or analog data, and which includes any data storage facility or communications facility directly related to or operating in conjunction with such device. (4)

Secretary

The term Secretary means the Secretary of Homeland Security.