According to documents recently obtained by the American Civil Liberties Union (ACLU), the Internal Revenue Service (IRS) believes they have the authority to read the private e-mail messages, Facebook chats and other online communications of Americans without obtaining a warrant.
According to IRS lawyers, the American people have “generally no privacy” in online communications which means no Fourth Amendment standards apply and no search warrant is needed to read our private communications.
The 2009 IRS Search Warrant Handbook obtained by the ACLU through a Freedom of Information Act (FOIA) request claims that “mails and other transmissions generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection once they have been sent from an individual’s computer.”
Considering the fact that this so-called handbook was prepared by none other than the Office of Chief Counsel for the Criminal Tax Division, this is quite troubling.
While the ACLU’s intent was to obtain records simply stating if the IRS gets a warrant before reading email, text messages and other private electronic communications, the documents obtained don’t give a point blank answer.
While the IRS might not come right out and say it for obvious reasons, the ACLU notes that the 247 pages of records they obtained indeed suggest that the IRS reads private communications without getting a warrant first.
Saying “suggest” is a quite conservative choice of words indeed given some of the material. Part of the 2009 handbook actually claims that “the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications.”
A 2010 presentation by the IRS Office of Chief Counsel claims that “4th Amendment Does Not Protect Emails Stored on Server” and that there is “No Privacy Expectation” when it comes to those emails.
However, United States v. Warshak, a 2010 case in the Sixth Circuit Court of Appeals, determined that the government must indeed obtain a probable cause warrant before forcing an email provider to release messages.
“However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit,” according to Nathan Freed Wessler, a staff attorney for the ACLU’s Speech, Privacy & Technology Project.
That said, it could not be clearer that the IRS policy before Warshak was to read electronic communications without ever obtaining a warrant.
The IRS apparently only follows the Electronic Communications Privacy Act (ECPA) a 1980s-era law that is far behind the times as CNET points out in writing that it was “adopted in the era of telephone modems, BBSs, and UUCP links, long before gigabytes of e-mail stored in the cloud was ever envisioned.”
In a March 2011 revision of the Internal Revenue Manual, it is stated that under the ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of an actual warrant.
As Wessler points out, “Again, no suggestion that the Fourth Amendment might require more,” meaning that their policy apparently did not change one bit after Warshak. This apparently has not changed one bit in the current tax season’s Internal Revenue Manual.
An IRS Chief Counsel Advice memorandum from October 2011 similarly “misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails,” according to Wessler.
The ACLU is also now waiting on documents from the FBI and other Department of Justice Agencies on similar matters.
“Let’s hope you never end up on the wrong end of an IRS criminal tax investigation,” Wessler writes. “But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case.”