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Mike McKay Joins Other Former Law Enforcement Heads in Privacy Litigation

Mike McKay lent his voice, along with other former United States Attorneys for the Western District of Washington, to oppose the government’s practice of covertly searching electronic data in cloud-based storage without providing notice, delayed or otherwise, to the owner of the data. The former United States Attorneys submitted an amicus brief in Microsoft v. USA, et al. (2:16-cv-00538-JLR WDWA), supporting the position that allowing the government to conduct searches without ever notifying the target of the search is a new practice and has been found to be unconstitutional in similar circumstances. They urged the court to consider the fact that the government has effectively used similar forms of covert searches while providing the targets of the searches with notice, and that searches of information stored in the cloud should be subject to the same standards.

The litigation relates to Section 2705(b) of the Electronic Communications Privacy Act of 1986, which the government has used to prevent Microsoft from notifying its cloud storage customers when it has complied with a search warrant for data contained on its cloud storage servers. Microsoft seeks declaratory judgment holding that Section 2705(b) is unconstitutional under the First and Fourth Amendments. The government has filed a motion to dismiss, which is noted for September 23, 2016.