NEW YORK, July 8 (Reuters) - Travelers who want to keep U.S. border agents from seeing sensitive documents on their laptops and cell phones may be better off leaving those devices at home, a federal judge suggested Friday during arguments in a civil-liberties group's challenge to federal border-search policies.
The suit, filed in September 2010 and led by Pascal Abidor, a dual U.S.-French citizen whose computer was searched and seized by federal agents while crossing the Canadian border, challenges the constitutionality of policies allowing U.S. border authorities to search laptops, cell phones and other electronic devices. Friday's hearing considered arguments on the government's motion to dismiss the suit.
"There are lots of burdens people are subject to in order to protect their security and the security of others," said U.S. District Judge Edward Korman, who admitted he has never traveled with a laptop.
Korman said it was "risky business" for individuals to carry confidential documents on their personal devices. But he added that travelers are aware that their devices may be searched, and are confronted by equally "invasive and annoying" search policies at airports.
"It may become impossible to conduct such searches if you're going to set up evidentiary standards," Korman said.
But Catherine Crump, an attorney for the ACLU, argued that lawyers, journalists and other professionals often carry "their whole lives" on their laptops. In addition to protected personal information, she said, the searches can violate protected professional information, such as the names of news sources or notes from attorney-client meetings.
"The reality is that we cross the border with these devices," Crump said. "Because of not just the volume of information but the sensitivity of it, a heightened standard should apply" when determining when to conduct searches, she said.
'REASONABLE BY NATURE'
Marcia Sowles, a government attorney, argued that courts have generally upheld the constitutionality of border searches in the absence of reasonable suspicion, because of heightened national-security interests.
"Border searches are reasonable by nature, because you're protecting the borders," Sowles said.
In 2006, the Ninth U.S. Circuit Court of Appeals upheld the search policy. But a separate 2010 ruling by the district court in northern California found that, while the government can conduct immediate border searches of electronic devices without a warrant, it does not have the same right to peruse obtained information months after the border crossing without a reasonable cause.
According to the plaintiffs' complaint, more than 6,500 people, including almost 3,000 U.S. citizens, had their electronic devices searched while crossing U.S. borders between October 2008 and June 2010.
Korman did not rule immediately on the motion.
The case is Abidor et al v. Napolitano et al, in the U.S. District Court for the Eastern District of New York, no. 10-4059.
For the plaintiffs: Arthur Eisenberg, Melissa Goodman and Christopher Dunn of the New York Civil Liberties Union; Benjamin Hillman, Catherine Crump and Hina Shamsi of the American Civil Liberties Union; and Michael Price of the National Association of Criminal Defense Lawyers.
For the government defendants: Marcia Sowles of the U.S. Department of Justice, Civil Division, and Elliot Schachner of the U.S. Attorney's Office, Eastern District of New York.
(Reporting by Jessica Dye)