Mike McKay

Four former U.S. Attorneys from the Western District of Washington have filed an amicus brief in support of Microsoft Corp.’s lawsuit against the U.S. Department of Justice regarding government searches of customer email. Microsoft’s complaint seeks to strike down a law that prevents the company, and others like it, from timely informing its customers when the government seeks their data.

The former U.S. Attorneys joining the brief are: Jeffrey Sullivan (who was USA from 2007 to 2009); NAFUSA member John McKay (2001 to 2007); Kate Pflaumer (1993 to 2001); and NAFUSA Foundation President Mike McKay (1989 to 1993). They were joined by Charles Mandigo, who was the FBI Special Agent in Charge in Seattle from 1999 to 2003.

In their brief, the former federal law enforcement officials observed they have “a combined 80 years of real-life experience fulfilling their obligation to keep the public safe while operating within the bounds of the Constitution. They have a unique perspective on how to achieve the balance between public safety and personal liberty, particularly with respect to government searches and seizures of private information.” They argued that “law enforcement can function effectively—even in the cloud—while following the Fourth Amendment’s requirement of notice to individuals whose private information has been searched.”

As reported by The Seattle Times, all of the former officials have experience seeking secrecy orders but are concerned about the increasing use of the orders.

John McKay

“Because of the nature of the cloud, the government has gotten lazy and is no longer making specific showings of need as to why secrecy orders should be granted,” John McKay told the Times

McKay is now in private practice at Davis Wright Tremaine, which is representing Microsoft in the case, but his involvement in the brief was in his personal capacity, he said.