IRS Investigators See No Need For A Warrant To Snoop On Emails

from the time-for-an-audit-of-aclu-folks dept

The ACLU filed a freedom of information act (FOIA) request last year, asking for details about whether not IRS investigators get warrants before reading people’s private communications. After finally getting 247 pages of records (which don’t fully answer the questions asked), the ACLU has noted that the documents suggest that the IRS likely read private emails regularly without obtaining a warrant. In their blog post, they note that in the US v. Warshak case, the 6th Circuit made it clear that the government must get a warrant to turn over emails, and it seems clear that the IRS had to change its policy because of that.

The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts 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.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.

Other older documents corroborate that the IRS did not get warrants across the board. For example, the 2009 edition of the Internal Revenue Manual (the official compilation of IRS policies and procedures) explains that “the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.

Of course, the IRS is not alone in this. That’s the same way other government agencies have treated email thanks to the outdated nature of ECPA, the Electronic Communications Privacy Act, a law written nearly 30 years ago, which assumed that any content left on a server for over 180 days was “abandoned,” because the idea of online messaging systems was foreign to folks in Congress at the time.

The bigger question, though, is whether or not the IRS paid attention to the ruling in Warshak and started getting warrants. As the ACLU notes, while not entirely clear, the answer is likely “no.”

Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails more than 180 days old. Shortly after Warshak, apparently it still was not

The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under 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 a warrant. Again, no suggestion that the Fourth Amendment might require more.

As the ACLU notes, the IRS owes the American public a clear explanation of its view on warrants… and it should put in place a clear warrant requirement before snooping through emails.

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Comments on “IRS Investigators See No Need For A Warrant To Snoop On Emails”

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24 Comments
JP Jones (profile) says:

Re: No Need

I don’t see any need for a warrant either. Email is hosted by a third party. Therefore, it is not protected under the fourth amendment. Like it or not. Welcome to the cloud.

Huh, so it’s perfectly fine for the postal system to go through your mail, because it’s being hosted by a third party?

Either way, you’re wrong. The 6th circuit ruled that emails contained a “reasonable expectation of privacy” and this ruling has yet to be overturned (a bill codifying this into law, however, was shot down by the Senate last year).

Your reasoning is wrong too…the SEC is the reason emails were considered accessable, not the 4th amendment. The SEC states that electronic communication held for over 180 days is considered “abandoned” and can be freely accessed by government officials. This law was passed 30 years ago when actually storing such data was considered too expensive to consider. Now all email is stored essentially forever. The key point is that email under 180 days is considered private under the law…the 3rd party storage is irrelevant.

Anonymous Coward says:

Re: No Need

I see. So, the government can look through your medical records for no reason, since they’re not stored by you personally? And they can search your safety deposit box without a warrant, since that’s stored by the bank and not you?

If a password or your ID is needed to access something, then there’s probably an expectation of privacy.

That One Guy (profile) says:

Re: Re:

The answer to that question depends almost entirely on whether it’s their privacy, or the privacy of someone else being discussed.

If the first, then yes, they all believe wholeheartedly in privacy, and see violations of it as horrible things that need to be protected against.

If the second, then it tends to be ‘Yes, but only as long as it doesn’t get in the way of whatever the person/agency wants to do at the moment.’

Anonymous Coward says:

Re: What can we do?

Stop paying taxes. If everyone just stopped being extorted then the criminals would not be able to continue to tax directly on top of taxing through inflation.

Stop paying taxes, everyone… unless you are a slave… then continue to pay.

By paying taxes you acknowledge that your time and labor (You!) are the property of someone else.

Niall (profile) says:

Re: Re: What can we do?

So illegal workers who are being illegally exploited by shady employers who don’t declare anything to do with them are less ‘slaves’ then regular tax-paying citizens?

If you work but earn less than the amount you can be taxed on (UK anyway), does that somehow make you less of a ‘slave’ than someone who is earning enough to pay tax, even though it means you are either doing few hours or earning very little money?

Frankly, capitalism (and most other economic systems) make sure workers are labour ‘slaves’ regardless of whether taxes are paid.

Anonymous Coward says:

Re: Re: Re: What can we do?

“So illegal workers who are being illegally exploited by shady employers who don’t declare anything to do with them are less ‘slaves’ then regular tax-paying citizens?”

Not necessarily. It is the sum of the coercion / reduction of rights monopolized by government that would determine who was less enslaved. The people that you are using as an example appear to have very little rights, likely stemming from the fact that these “people” are illegal workers. Who deems them illegal? Governments, no?

“If you work but earn less than the amount you can be taxed on (UK anyway), does that somehow make you less of a ‘slave’ than someone who is earning enough to pay tax, even though it means you are either doing few hours or earning very little money?”

Read my point above, I think it should answer this as well. Let me know if it does not.

“Frankly, capitalism (and most other economic systems) make sure workers are labour ‘slaves’ regardless of whether taxes are paid.”

This was not about capitalism, or other economic systems. This was about government. At the most fundamental level, a government, takes or reduces people’s rights. The bigger a government gets, the more dependent people become on it, they become more willing to give up their rights and the rights become harder to win back. Why must they be won back? Who gave you these rights? Was it your government or would these rights exist anyway?

Frankly, capitalism (or most other economic systems) would treat people far less like slaves if we understood our rights and did not rely on the illusion that is government to live. Alas, I realize this requires evolution of thought that is vehemently restrained.

special-uninteresting says:

Many of the larger e-mail firms are regularly targeted by government agencies and are forced to give up the 180 day old e-mails in bulk. Letters of National Security? Who knows. A recent TD article suggested that google was fighting a (likely a blank check bulk access) LNS.

Constitutional law is very clear that anything private is private and personal communications ARE private. Bureaucracy has no say in the matter and whatever they have said should be taken with special interest laden salt. Its hard to say there is any aim, direction or goal to government except to get larger or worse.

Its a real (privacy leak) problem that electronic information (analog or digital) is covered only by spotty wire fraud laws and (legislatively and judicially) ignored by constitutional law. No way that could be anything but a mistake or even completely wrong. Would be nice to see legislation to put analog/digital communications back under the wing of constitutional law.

Here is one of my best arguments on how to do so: (spoiler. Donate… but how?) https://www.techdirt.com/articles/20130411/01024022673/surprise-rep-bob-goodlatte-thinks-justice-department-is-too-cozy-with-hollywood.shtml#c537 more wordy but awesome rational reasoning. Don’t ya think its hilariously ironic?

Do we have enough senators/representatives in our pocket to impeach a corrupt politician at the moment? No but, someday, maybe. If we let special interest groups run Washington any way they want whose fault is that? -points finger at self-

Anonymous Coward says:

things are a little more complicated than they appear- it’s a combination of not noticing a change in e-mail habits along with some slightly obsure parts of the law. Until webmail became popular, e-mails were downloaded from an e-mail server, then deleted off of the e-mail server. ( it’s why you couldn’t get your e-mails from your ISP if you lost them for whatever reason). The IRS still thinks such is the usual situation with e-mail, therefore an email left on the server for 180 days is abandoned. in law, if you abandon something, it is up for grabs for a search w/o a warrant. (for a popular example, if you drink out of a cup in the police station, they can take your DNA from the cup w/o a warrant) The IRS is saying that it is the equivalent of fishing someone’s mail out of the trash, which is legal.

IOW, it’s ignorance of how people use e-mail that is at the root of this, not actaully ignoring the law.

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