In the ongoing debate over government access to private communications the United States District Court for the Western District of Washington rejected a Government motion to dismiss a suit by Microsoft challenging the constitutionality of certain secrecy provisions of the Stored Communications Act (SCA).
Presently, law enforcement officials can request user data under the SCA from service providers such as Microsoft, and then seek an indefinite non-disclosure order under if there is “reason to believe” notification would result in the destruction of evidence, put witnesses or others in danger, or seriously jeopardize an investigation or trial. Such orders preclude Microsoft from informing users about the government’s access to their information.
This District Court’s ruling comes at a time of increased scrutiny of the SCA. Originally passed in 1986, the SCA has been viewed by many as outdated and incompatible with society’s current widespread reliance on electronic communications.
Two recent court decisions have reached different conclusions about whether the SCA enables the government to access communications stored abroad consistent with the Fourth Amendment. Pending Congressional legislation would reform the so-called “180-day rule” in the current SCA permitting government access to emails and stored communications older than 180 days without obtaining a warrant.
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